People v. Kelly, B182347 (Cal. App. 1/24/2008), B182347
| Court | California Court of Appeals |
| Writing for the Court | Cooper |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. THEODORE KELLY, Defendant and Appellant. |
| Docket Number | B182347 |
| Decision Date | 24 January 2008 |
Page 1
v.
THEODORE KELLY, Defendant and Appellant.
Appeal from a judgment of the Superior Court of Los Angeles County, No. NA055388, Joan Comparet-Cassani, Judge. Reversed in part and remanded for resentencing, otherwise affirmed.
Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, theresa a. Patterson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P.J.
On April 1, 2004, the Los Angeles District Attorney filed an amended information in the Superior Court of Los Angeles County against appellant and co-defendant's Thomas Milam, Ralph Cole and Richard Ellis charging them with three counts of second-degree robbery (Pen. Code § 211,1 counts 5, 6 and 7), and six counts of false imprisonment by violence (§ 236, counts 8, 9, 10, 11, 12, 13). The information alleged that counts 5, 6 and 7 were serious felonies within the meaning of section 1192.7, subdivision (c). The information further alleged that during the commission of counts 5, 6, and 7, all defendants personally used a handgun (§ 12022.53, subd. (b)), and they all personally used a handgun during the commission of counts 8, 9, 10, 11, 12 and 13.
(§§ 1203.06, subd. (a)(1), and 12022.5, subd. (a)(1)), causing these offenses to be both serious (§ 1192.7, subd. (c)(8) and violent (§ 667.5, subd. (c)(8)) offenses. Further, the information alleged that appellant had three prior felonies within the meaning of section 1203, subdivision (c)(4).
On August 31, 2004, a jury trial commenced. On September 16, 2004, the jury found appellant guilty on all counts, and found all of the gun use enhancements true.
On October 13, 2004, appellant's motion for appointment of private counsel was granted. On February 16, 2005, appellant's motion for a new trial was denied and he was sentenced to state prison for a total term of thirty-five years and eight months. (High term five years on count 5, with an additional ten consecutive years on the gun use; one-third the mid term of one year on counts 6, 7, with an additional forty months for the gun use on each of those counts; consecutive terms of 8 months [one-third the mid-term of twenty-four months] on counts 8, 9, 10, 11, 12, and 13, with an additional sixteen months for the gun use on each of those counts.) Appellant was awarded 766 actual and 114 days of good time pre-sentence custody credits for a total of 880 days.
On April 4, 2005, appellant filed a timely notice of appeal.
Prosecution Evidence
On January 4, 2003, Anatoly P., Leo S., and Nikolai G. were working at a pawn shop in Long Beach. Around 3 p.m., two African-American men, later identified as codefendants Ralph Cole and Richard Ellis, came into the shop and purchased a gold chain. Cole asked if he could exchange the chain if his girlfriend did not like it and Nikolai G. said he could.
About 4:50, ten minutes before closing time, Cole and Ellis returned. From behind the counter, Nikolai G. buzzed them into the store. Some other African-American men came into the store behind them. At the time the men entered, there were six customers in the store, a woman and her four children and a man.
Cole said that his girlfriend did not like the chain and asked to exchange it. Nikolai G. started to turn and go to the safe. Cole then pointed a gun at Nikolai G. and told him to lie on the floor. At the same time, Nikolai G. saw a third man jump over the showcase near Sokolsky. As Nikolai G. slowly went down towards the floor, he pushed the silent alarm button.
Cole jumped over the table and grabbed a store gun. He pushed Nikolai G. to the ground with his foot, kicked him in the face and handcuffed him. Cole asked Nikolai G. several times for the keys to the safe, while hitting him in the area of his kidneys. However, Nikolai G. did not have the keys. Cole searched Nikolai G.'s pockets, and took his wallet.
Nikolai G. noticed another man putting gold and other items into a plastic garbage bag. Another man was searching and hitting Lev S. Nikolai G. heard a fourth man asking Anatoly P. for the keys. Cole appeared to be in charge because he was giving orders to the other men. Nikolai was sure that at least one other man had a gun, but was not sure which one.
Lev S. had been behind the counter gathering gold to put in the safe, when a man jumped over the counter, pointed a gun to the back of Lev S.'s head and said not to move. The man tore off the glasses and the button for opening the doors to the store from around Lev S.'s neck. He then pushed Lev S. and told him to lie on the ground. After Lev complied, his wallet, telephone, car and house keys were taken from him. Lev's wallet contained his driver's license, an ATM card and two credit cards.
Anatoly P. was in the back of the store and heard some commotion out front. He saw a man with a gun hiding behind the safe, and trying to look inside the room where Anatoly P. was. Anatoly P. activated the silent alarm. He then raised his hands, and he was frisked, handcuffed and put on the floor. Anatoly P.'s wallet was taken, but he was unable to see who was doing these things. While he was on the floor, Anatoly P. saw two men on top of Lev S. handcuffing him. Anatoly P. next saw one man putting gold inside a black bag. The man who had been hiding behind the safe was saying, "Stay down, stay down, nobody gonna get hurt." Anatoly P. heard another voice asking for the combination to the safe. One of the men, later identified as Cole, put a gun to Anatoly P.'s head and said either, "Where's the combination?" or "Open the safe." Anatoly P. indicated that one of the safes was unlocked. Next, Anatoly P. saw a man filling a plastic bag with the "little yellow envelopes" that contained pawned items.
Marina R. was one of the customers in the store during this incident. She came to the store with her four children (ages 11, 8, 7, and 6) to recover some items she had pawned. A few minutes after she arrived, she saw three people enter the store. While she was being shown items, one of the men who had entered the store began to struggle with another employee. She saw the man strike that employee and jump over the counter and handcuff him. The man struggling with the employee was about two or three inches taller than her. He had dark skin and his hair was tied up with something and he had "little braids." The man with the braids started putting things in a bag. One of the other men Marina R. saw was taller, a little overweight, with very short hair. He was African-American, but was "lighter skinned." The third man was about the same height and color as the man with the braids, and also wore a rag on his head. Each of the three men had a gun.
As this was happening, one of Marina's children started to cry. She did not understand what anyone was saying because they were speaking English. Marina started to scream, yell and cry. The taller man with the lighter skin pushed her towards a door. Marina opened the door thinking it was an exit to the street. When she did so, the man with the braids ran over and hit Marina R. in the head with a gun. He then pushed Marina R. and her children into the room, and locked the door. Marina R. and her children were crying and the children urinated on themselves.
Leonard H. was also in the pawn shop at the time of the robberies. He noticed a dark-skinned man next to him draw a gun. The man told him to lie down on the ground, where he was then handcuffed. Later, he was escorted behind the counter where he again laid down on the ground. Behind the counter, Leonard recognized two employees from the pawn shop who were also handcuffed. He remembered seeing two of the robbers had guns.
After items were removed from the safe, Cole, yanked Nikolai P. up and took him to the back door and asked him to open it. After Nikolai P. told him the door was open, Cole turned the knob and went through the door. The door Cole exited led to a parking area which had stairs leading to apartments located above the pawn shop.
Before leaving, Cole told Nikolai to go back inside and someone else told him to stay down. As Nikolai was trying to hit the alarm one of the handcuffs on him came loose. At some point, all of the robbers left. Afterwards, Nikolai grabbed a shotgun he had in the store. After loading it, he closed the back door and locked the gate so that the robbers could not return.
Nikolai P. then dialed 911 and the police told him they knew there was a robbery at the location. He told the police there was a handcuffed customer who was not feeling well and requested an ambulance. Nikolai noticed that a revolver in the store was missing. He estimated that from the time he first knew something was wrong until the suspects left the store was about five minutes. An in-store video system captured events during the first transaction and during the robbery. After the men left, Anatoly P. heard somebody running on the roof of the pawn shop.
Long Beach Police Officer Brian Ekrem responded to the scene of the robberies. After parking his car, he ran past the pawn shop towards the alley on the north side of the building. As he was running towards the alley, he saw two African American men, identified as appellant and Ellis, running into a fenced-in parking lot behind the pawn shop. Ekrem did not see guns in their hands. Officer Ekrem yelled at them to stop, but they did not comply. Instead, appellant, followed by Ellis, ran up the stairs into what looked like apartments. When they got to the top floor, they ducked behind the railing out of view. Ekrem kept telling them to stand up and come down. When Ellis made a...
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