People v. Kelley, s. D008219

• Decision Date: 30 May 1990
• Docket Number: D009740,Nos. D008219,s. D008219
• Citation: 220 Cal.App.3d 1358,269 Cal.Rptr. 900
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert KELLEY, Defendant and Appellant. In re Robert KELLEY, on Habeas Corpus.

Page 900

269 Cal.Rptr. 900

220 Cal.App.3d 1358

The PEOPLE, Plaintiff and Respondent, v. Robert KELLEY, Defendant and Appellant.

In re Robert KELLEY, on Habeas Corpus.

Nos. D008219, D009740.

Court of Appeal, Fourth District, Division 1, California.

May 30, 1990.

As Modified on Denial of Rehearing

June 14, 1990.

Review Denied Sept. 13, 1990.

[220 Cal.App.3d 1362] Gregory Marshall, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Asst. Atty. Gen., Esteban Hernandez and Lilia E. Garcia, Deputy Attys. Gen., for plaintiff and respondent.

KREMER, Presiding Justice.

Robert Kelley appeals his convictions of conspiracy to commit robbery (PEN.CODE, §§ 182¹, subd. (a)(1), 211) and murder (§ 187) and petitions for a writ of habeas corpus. He contends his convictions must be reversed for insufficiency of the evidence, instructional error, and his counsel's incompetence. We find instructional error infects Kelley's conviction for conspiracy to commit robbery and order that conviction reduced to conspiracy to commit theft. In all other respects, we affirm the judgment. We deny the petition for writ of habeas corpus.

FACTS

In May 1986, Kelley and Proceso Serrato lived in an abandoned Pacific Bell building in the Pacific Beach area of San Diego. On May 30, 14-year-old Debra Wilson and 16-year-old Bruce Mullee, two transients living "on the streets" in Pacific Beach, stayed with Kelley and Serrato in the Pacific Bell building. Wilson and Mullee had known each other for two or three weeks and had known Kelley and Serrato for one or two weeks. Mullee went by the nickname "Little Stoner." They knew Kelley as "BK" and Serrato as "Pro." Kelley and Serrato, in particular Serrato, had talked about sailors having a lot of money. One of them had said "I'd like to have checkbooks like they do." Kelley and Serrato had also talked about going to Las Vegas on May 31, stealing a car to get there.

About 9 p.m. on May 31, the group went to an alley behind a nearby 7-Eleven. They were approached by two sailors: Brian Farr who was a tall blonde, fairly muscular man, and another man who was shorter, had dark hair and was "sort of pudgy in the face." Wilson made a call at the phone at the 7-Eleven. While she was on the phone, Kelley told her he and Serrato were going to take the sailors back to the Pacific Bell building, get them drunk and then take their money. Wilson saw Kelley and the blonde sailor, Farr, walk down the alley toward the Pacific Bell building. A little while later, Serrato entered the 7-Eleven and bought a 12-pack of Budweiser beer. A videocamera at the store recorded the sale.

While Mullee was waiting for Wilson to finish using the phone, Serrato approached and said he and Kelley were going to get the sailor drunk, have him pass out and then take his money and leave. Serrato said they were going to play a drinking game called "Quarters." Mullee explained "Quarters" is played by flipping a quarter into a cup of beer. If the quarter lands in the cup, then the individual who flipped the quarter can require another person to drink the whole cup.

Mullee and Wilson went to the beach and returned to the Pacific Bell building later that night but were unable to enter. The next day around noon, they returned to the building and saw Farr lying face down on the floor, apparently dead. Wilson anonymously reported Farr's death to the police.

Farr had been beaten to death with a rod or pipe. He died of a skull fracture and intracranial hemorrhage due to blunt trauma to the head. The evidence at the scene suggested Serrato and Kelley had played "Quarters" with Farr. An empty 12-pack Budweiser beer carton was found on the kitchen counter and 11 of the cans were The next night, June 1, about 10 p.m., Serrato and Kelley were hitchhiking in Escondido and talked to David Harmon and Westin Williams for five or ten minutes. After Harmon and Westin hung some campaign signs, they saw Serrato and Kelley attempting to steal a truck. Harmon called the police. Officer Carriere responded to the call about 10:15 p.m. He arrested Serrato. The police searched for Kelley but did not find him. The police did recover Kelley's backpack from the inside of the truck. In the backpack was a notebook with a letter dated June 1 written by Kelley apparently to Mike Reggio, a 16-year-old friend in Arizona. In the letter, Kelley wrote:

                empty or nearly so.  Nine empty beer cans were on the kitchen floor lined up next to each other.  Next to the beer cans written in ink on the floor were the words "The" and "Kelly."   On a nearby table, was a crumpled pack of cigarettes, an ashtray and a styrofoam cup.  Farr's blood alcohol level was .21 percent.  A small amount of blood was found on a chair in a location removed from Farr's body, suggesting that the assault had started near the chair and continued to the area where his body was found.  Farr's wallet was found about 12 or 15 inches from his head.  There was no money in the wallet.  Farr's pockets had apparently been searched, his left front pocket had been turned inside out
                

"Mike last night I did somethings that you would not be to happy with me for, if you remember what I said I was going to do to people to get money, well do you remember what we did to the bum at Kennendy then you know what I'm doing to get money to go away, only now I do it more, I get more money and I put more hurt in it. please do not let anyone read this, not even Rosa. Now Im going to tell you the truth, Im killing people for money, Ive rolled about 7 of them already Im going to Las Vegas today to hit people with real money, now I only have 2 gran, ... Ill send you this letter from Vegas, but Im writing from Cal. I hope you understand.... Please come." ²

Reggio explained at trial Kelley's reference to the "bum at Kennedy" referred to an incident where a man started harassing Kelley and Reggio at a park in Tucson and Kelley had responded by pushing the man down.

On June 5, Kelley wrote a letter to Reggio which he mailed from Las Vegas. The letter was intercepted by Reggio's mother who was concerned her son might run away to Kelley. In the letter, Kelley wrote:

"So then I start kicken it with some dude name PRO, pretty weird name huh? Me + PRO did pretty good, not a lot of Drugs but we Drank + man can that chinck get the bab's, we had so much pussy my dick started to shrivle up on my ass. Then me + PRO decide its not cool in San Diego or Cal. So we fuck up some assholes + say we going to Vegas to make or take money + go to Hawaii! so we start hitch-hikin east to Nevada, then we see a truck with nobody around, PRO was fucking with starter cylanod + I was trying get it going, then my friends pull up + I jumped out of the truck and started crawling on my stomach thru- all kinds of mud and shit while the cops are trying to make PRO sit on the ground, ... now they [police] start looking for me, I was about 8 feet away when the 2 cops go in the opposite way from me, happy trails. I got away, dirty as a pig but I got away.... Now Im on the street again and Im not high, some old man tells me he'll pay me $50.00 If I let him suck my Ralph. Ralph dont like fagets. Sure I told him, he takes me way the fuck out in the desert + I put a couple of extra holes in his head, now Im high, clean, + go to lose my money at the fucken casino again, ..."

DISCUSSION

I Instructions on Conspiracy to Commit Theft Were Required

Kelley contends he was entitled to instructions on conspiracy to commit theft as The trial court has a duty to instruct the jury on principles of law which are closely and openly connected with the evidence and which are necessary to the jury's understanding of the case. (People v. Flannel (1979) 25 Cal.3d 668, 681, 160 Cal.Rptr. 84, 603 P.2d 1.) This duty includes giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present. (People v. Wickersham (1982) 32 Cal.3d 307, 323-324, 185 Cal.Rptr. 436, 650 P.2d 311; People v. Williams (1988) 199 Cal.App.3d 469, 475, 245 Cal.Rptr. 61.) Regardless of a request for specific instructions, the trial court must act as a neutral arbiter between the contesting parties to guide the jury on the law. (People v. Wickersham, supra, 32 Cal.3d 307, 323, 185 Cal.Rptr. 436, 650 P.2d 311.)

a lesser included offense of conspiracy to commit robbery.

Conspiracy is a specific intent crime which requires proof of an intent to agree (or conspire) to commit a particular crime. (People v. Croy (1985) 41 Cal.3d 1, 23, 221 Cal.Rptr. 592, 710 P.2d 392; People v. Horn (1974) 12 Cal.3d 290, 296, 115 Cal.Rptr. 516, 524 P.2d 1300.) " 'To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also that they intended to commit the elements of that offense.' [Citation.]" (People v. Croy, supra, 41 Cal.3d 1, 23, 221 Cal.Rptr. 592, 710 P.2d 392.) The elements of robbery are (1) a taking of personal property, (2) from the person or immediate presence of another, (3) through the use of force or fear, (4) with an intent to permanently deprive the owner of his property. (§ 211; People v. Morris (1988) 46 Cal.3d 1, 19, 249 Cal.Rptr. 119, 756 P.2d 843.) Theft is a lesser included offense of robbery since theft does not require the use of force or fear in the taking. (See People v. Ramkeesoon (1985) 39 Cal.3d 346, 351, 216 Cal.Rptr. 455, 702 P.2d 613.)

The evidence here showed Kelley and Serrato had agreed to take Farr to the Pacific Bell building, to get him drunk by playing a drinking game called "Quarters" and then to take his money. Kelley and Serrato independently explained this plan to Wilson and Mullee. Wilson watched Kelley and Farr walk down the alley to the Pacific Bell building. Serrato purchased a 12-pack...