Filed 8/28/26 P. v. Kelly CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B344913
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. 24CJCF02534)
DARRYL EUGENE KELLY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of the County
of Los Angeles, George G. Lomeli, Judge. Modified and affirmed
with directions.
Marta I. Stanton, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, and Stephen D.
Svetich, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Darryl Kelly appeals from his convictions for
injuring a person with whom he was in a dating relationship,
assault with a deadly weapon, and robbery. He argues his
robbery conviction was not supported by sufficient evidence and
the sentence on his assault with a deadly weapon conviction
should be stayed pursuant to Penal Code section1 654 because it
arose from the same conduct as the charge for injuring someone
with whom he was in a dating relationship. We affirm the
robbery conviction and stay the sentence on the assault with a
deadly weapon charge.
II. BACKGROUND
A. The Charges
In an information filed on May 28, 2024, the Los Angeles
County District Attorney’s Office charged defendant with
inflicting injury on someone with whom he was in a dating
relationship (§ 273.5, subd. (a), count 1), assault with a deadly
weapon (§ 245, subd. (a)(1), count 2), failure to register after
felony conviction (§ 290, subd. (b), count 3), robbery (§ 211, count
4), and attempted murder (§§ 664, subd. (a), 187, count 5). On
June 25, 2024, the trial court granted defendant’s motion to set
aside the information under section 995 as to count 3 only. The
case proceeded to jury trial on the remaining counts.
1 Further statutory references will be to the Penal Code.
2
B. The Evidence
1. T.M.’s Testimony
Defendant and T.M. were in a dating relationship and lived
together. On the morning of April 15, 2024, T.M. and defendant
began arguing in their vehicle while defendant drove and T.M.
rode in the rear passenger side. Defendant was cursing at T.M.
and raising his voice. T.M. wanted to get out of the vehicle
because she believed defendant would “put[ ] his hands on [her]”
based on prior threats and incidents of abuse. When they
reached a stop sign, T.M. jumped out of the vehicle through the
rear passenger-side door, leaving the door open; she was holding
her purse.
When the couple’s dog followed T.M., defendant exited the
vehicle to get the dog. After he retrieved the dog and was
heading back to the vehicle, T.M. threw a glass beer bottle,
missing him but hitting the vehicle’s windshield.
Defendant appeared angry; T.M. described him as having
an “‘I want to kill you’ type” look. T.M. started running away on
the sidewalk. Defendant got back in the vehicle, drove onto the
curb, and struck T.M. with the vehicle, causing her to fall and hit
her head on the ground. T.M. sustained a bloody wound to her
right temple, a bump on her head, and scraped knees, which also
bled. When the vehicle hit her, T.M.’s purse fell behind her onto
the ground.
While T.M. was lying on the ground, defendant exited the
vehicle and “look[ed] like he was about to come st[o]mp [her] out.”
He stood over her and, at some point, grabbed her purse without
permission while she was still on the ground.
3
Defendant returned to the vehicle and drove away. As he
drove off, defendant told T.M., “‘You better hope I don’t see you
before you see me or I’m gonna kill you.’”
T.M. was transported from the scene by ambulance and
treated at the hospital. T.M. did not know if she lost
consciousness as a result of being hit by the car.
2. Ash’s Testimony
Jaclyn Ash observed the incident from the front window of
her home. She observed a sports utility vehicle approach with its
tires screeching and heard T.M. screaming from inside the
vehicle. T.M. then jumped out of the moving vehicle and walked
briskly away toward the sidewalk.
Defendant, who was driving, followed T.M. up over the
curb, turned toward her on the sidewalk, and hit her with the
vehicle. Defendant did not brake before impact. T.M. staggered
but did not fall to the ground.
Ash estimated the vehicle struck T.M. in her mid-torso at
approximately 10 to 20 miles per hour.
Defendant exited the vehicle, screaming at T.M. Then he
grabbed T.M.’s purse and used the purse to hit T.M. over the
head between four and eight times, using his full strength, for
approximately 30 seconds. Ash ran outside and screamed “stop.”
When defendant saw Ash, he returned to the vehicle and drove
off. As he drove away, defendant hit T.M. a second time with the
vehicle.
Ash called out to T.M., who ran to her. Ash observed
gashes on T.M.’s forehead and leg and called 911.
4
3. T.M.’s Mother’s Testimony
Antoinette M., T.M.’s mother, testified that she was caring
for T.M. on the day following the incident when she observed
defendant’s vehicle outside her home; she called the police.
4. Officer Trujillo’s Testimony
Los Angeles Police Department Officer Kevan Trujillo
responded to Antoinette M.’s residence. Upon arrival, he found
defendant sitting in a vehicle across the street. Defendant was
upset when Officer Trujillo detained him, and when he saw T.M.
exit the home, he began cursing and yelling as he looked toward
her. He yelled at T.M., “Thanks [T.M.] Dude, everything you
started, man. Every, everything you start[ed, the] truck is yours.
It’s right here. Your EBT card is in there. Your purse,
everything is in there, man.” T.M. remained quiet and seemed
scared. Officer Trujillo then placed defendant in the patrol
vehicle and took him in for questioning.
5. Defendant’s Testimony
Defendant testified that he and T.M. were arguing when
she exited the vehicle as it was slowing to a stop but still
traveling at approximately one to four miles per hour. She fell in
the street.
Defendant lost control of the vehicle while trying to prevent
the dog from jumping out of the rear passenger door that T.M.
left open. The vehicle headed straight towards the curb where
T.M. was standing. Defendant saw T.M.’s hand cocked back like
she was going to throw an item at him, and then a thick, glass
5
liquor bottle struck the windshield of the vehicle. Because he
ducked behind the steering wheel, he did not see whether the
vehicle hit T.M. But defendant noticed both that T.M. was
running on the grass and that she fell.
Defendant hit the brakes, put the vehicle in park, and got
out to check on T.M.’s welfare. T.M. was walking away down the
sidewalk and defendant saw the purse sitting on the grass
approximately 36 feet away from T.M. He picked up the purse
because he was concerned someone would take it.
According to defendant, he picked up the purse because it
contained his “E.B.T. card, credit cards, and maybe about $5 or
$10;” T.M. “[kept] everything in her purse for [them].” At the
time he picked up the purse, T.M. “was so far away. She was
walking up the street, and [defendant] didn’t want to leave her
purse there on the ground.” Defendant claimed the purse
belonged to both of them because his “stuff” was in there as well
as hers. “And if [she was] walking away, leaving the purse,
somebody else could come along and steal the purse[,] [¶] … her
I.D., [defendant’s] I.D.” Defendant denied hitting T.M. with the
purse.
Defendant asked T.M. to get back in the vehicle, but left
when he heard a woman screaming that she was going to call the
police. T.M. “was fine when [he] left. She was up and walking.”
Defendant denied that he hit T.M. with the vehicle as he drove
away. Defendant went to pick up T.M. the following day to take
her to breakfast.
On cross-examination, defendant reiterated that the purse
was “our purse” because it held both his and T.M.’s belongings.
He confirmed that he picked up the purse because he “thought
that [it] would best benefit both of [them] that [he] pick up her
6
purse because somebody else could come steal her purse with
[their] credit[ ] cards in there.”
C. The Verdict and Sentencing
On November 4, 2024, the jury found defendant guilty on
counts 1, 2, and 4.2 After the jury failed to reach a unanimous
verdict on the attempted murder charge, the trial court declared
a mistrial on count 5. The court later dismissed count 5 pursuant
to the prosecution’s motion.
On March 20, 2025, the trial court sentenced defendant to
an aggregate term of five years in state prison.3 Prior to the
pronouncement of sentence, defendant’s counsel argued that the
sentences on counts 1 (§ 273.5, subd. (a)) and 2 (§ 245, subd.
(a)(1)) merged under section 654. The court agreed “if the
prosecution was arguing, as the defense attorney stated earlier,
that the force and the use of the vehicle constituting that charge
was the same as that used in the domestic violence count… . [¶]
However, and I think this was the People’s position …
defendant’s conduct was … using the purse that he took from the
victim and to beat her over the head with it to give rise to the
2 As set forth above, count 3 was dismissed prior to trial.
3 On February 26, 2025, the prosecution filed a sentencing
memorandum asserting that, when defendant struck the victim
with his car, her “head hit the concrete and she suffered a
significantly scraped knee.” The memorandum did not mention
any injuries that resulted from the assault with the purse.
7
[section] 245[, subd.] (a)(1) [count] in this matter.”4 The court
continued, “[W]hether it merges or not, the court is still inclined
to make the midterm with respect to that count, the 245[, subd.]
(a)(1), concurrent to any time the court has imposed.”
The trial court imposed the upper term of four years on
count 1 (§ 273.5, subd. (a)), a one year term—calculated as one-
third the middle term of three years—on count 4 (§ 211) to run
consecutively to count 1, and the middle term of three years on
count 2 (§ 245, subd. (a)(1)), to run concurrently with counts 1
and 4.
Defendant filed a timely notice of appeal.
III. DISCUSSION
A. Sufficiency of the Evidence
Defendant contends there was insufficient evidence to
support a finding that he acted with the requisite intent to
commit robbery. “Robbery is the felonious taking of personal
property in the possession of another, from his person or
immediate presence, and against his will, accomplished by means
of force or fear.” (§ 211.) Robbery is a specific intent offense
which requires the prosecution to prove the defendant intended
to permanently deprive the victim of the property taken (People
v. Anderson (2011) 51 Cal.4th 989, 994 (Anderson)) or “to take the
property for so extended a period as to deprive the owner of a
major portion of its value or enjoyment.” (People v. Avery (2002)
4 As we discuss more fully in Part III.B., the record contains
no evidence to support a finding that the purse was used as a
deadly weapon.
8
27 Cal.4th 49, 55, 58 (Avery); CALCRIM No. 1600.) Because
there is rarely direct evidence of specific intent, it is usually
shown circumstantially. (People v. Lashley (1991) 1 Cal.App.4th
938, 945–946.)
“In resolving sufficiency of the evidence claims, ‘an
appellate court reviews the entire record in the light most
favorable to the prosecution to determine whether it contains
evidence that is reasonable, credible, and of solid value, from
which a rational trier of fact could find the defendant guilty
beyond a reasonable doubt.’ [Citation.]” (People v. Gomez (2008)
43 Cal.4th 249, 265 (Gomez).)
Defendant advances three arguments in support of his
contention that there was insufficient evidence of his specific
intent to commit robbery: (1) he had a claim of right to the
property and a good faith basis to believe it was his; (2) he did not
intend to permanently deprive T.M. of her purse; and (3) at the
time he used force or fear against T.M., his intent was to injure
her, not rob her. We disagree.
Defendant’s first argument fails because he admitted at
trial that the purse belonged to T.M. and contained her items.
Further, when defendant appeared at T.M.’s mother’s home the
day after the assaults, defendant yelled at T.M., “It’s right here.
Your EBT card is in there. Your purse, everything is in there,
man.” (Italics added.) Defendant’s claim that the evidence at
trial demonstrated, as a matter of law, that he had a good faith
basis to believe the purse belonged to him therefore fails. (See
People v. Llamas (1997) 51 Cal.App.4th 1729, 1738 [“In
California, theft occurs when a co-owner takes jointly held
property with the intent to permanently deprive other owners of
9
their interest in that property”]; People v. Aguilera (2016) 244
Cal.App.4th 489, 497–498 (Aguilera).)
Defendant next contends that he did not intend to
permanently deprive T.M. of her purse because he “returned the
following day, intending to pick her up for breakfast.” But,
defendant’s contention that the evidence could be viewed as
inconsistent with the requisite intent does not require a reversal
of the conviction. (See, e.g., People v. Houston (2012) 54 Cal.4th
1186, 1215 [“‘“[I]f the circumstances reasonably justify the jury’s
findings, the judgment may not be reversed simply because the
circumstances might also reasonably be reconciled with a
contrary finding”’”].) Further, although the evidence showed
defendant returned the following day, he did not return T.M.’s
purse to her and only identified T.M.’s belongings to her after
Officer Trujillo detained him. Finally, robbery requires only
proof of “an intent to take the property for so extended a period
as to deprive the owner of a major portion of its value or
enjoyment … .” (Avery, supra, 27 Cal.4th at p. 55; CALCRIM No.
1600.) Here, the record contains substantial evidence from which
the jury could have reasonably inferred defendant’s intent was to
temporarily, but for an unreasonable time, deny T.M. of a major
portion of her purse’s value and enjoyment. (See, e.g., Aguilera,
supra, 244 Cal.App.4th at pp. 496, 501–502 [defendant
committed robbery when he took cell phone during assault to
prevent wife from calling 911].)
We now consider defendant’s contention that his assaultive
acts were motivated only by an intent to injure T.M., not an
intent to rob her. As a specific intent crime, robbery requires the
joint operation of act and intent. (§ 20.) “[I]f the larcenous
purpose does not arise until after the force has been used against
10
the victim, there is no ‘joint operation of act and intent’ necessary
to constitute robbery.” (People v. Green (1980) 27 Cal.3d 1, 54, fn.
omitted; accord, People v. Wallace (2008) 44 Cal.4th 1032, 1077.)
According to defendant, “the taking of the purse was an
afterthought” which occurred after he beat T.M. over the head
with it. Sufficient evidence supports the jury’s contrary finding.
Indeed, defendant testified that he picked up the purse because
“her I.D., [his] I.D.”, “[his] E.B.T. card, credit cards, and maybe
about $5 or $10” were in the purse and he was afraid someone
else would take it. His statement concedes the purse had value
to him; that was why he grabbed the purse initially, and it was
reasonable for the jury to infer that he acted with an intent to
deprive T.M. of property when he picked up the purse and
exerted force to carry it away. (Anderson, supra, 51 Cal.4th at
p. 994 [“It thus is robbery when the property was peacefully
acquired, but force or fear was used to carry it away”]; People v.
Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8 [theft becomes robbery
if the perpetrator peaceably gains possession but “resorts to force
or fear while carrying away the loot”].) Accordingly, the evidence
was sufficient to support defendant’s conviction for first degree
robbery.
B. Section 654
Defendant argues that his convictions on counts 1 and 2,
for domestic violence (§ 273.5, subd. (a)) and assault with a
deadly weapon (§ 245, subd. (a)(1)), are based on the same act of
striking T.M. with his vehicle and therefore he cannot be
punished for both. The Attorney General counters that the
evidence supported a conviction on count 1 based on defendant’s
11
assault with the purse and that section 654 therefore does not
apply.
1. Legal Principles
Pursuant to section 654, subdivision (a), “An act or
omission that is punishable in different ways by different
provisions of law may be punished under either of such
provisions, but in no case shall the act or omission be punished
under more than one provision.” Our Supreme Court has “often
said that the purpose of section 654 ‘is to insure that a
defendant’s punishment will be commensurate with [the
defendant’s] culpability.’” (People v. Latimer (1993) 5 Cal.4th
1203, 1211.)
A substantial evidence standard of review applies to the
trial court’s determination of the applicability of section 654.
(People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1289; People
v. Osband (1996) 13 Cal.4th 622, 730.) We review the trial
court’s factual findings, express or implicit, in the light most
favorable to the respondent and presume the existence of every
fact the trial court could reasonably deduce from the evidence.
(People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312–1313;
People v. Moseley (2008) 164 Cal.App.4th 1598, 1603.)
2. Analysis
Count 1 required that the defendant’s act inflicted a
physical injury upon T.M. that resulted in a traumatic condition.
(§ 273.5, subd. (a).) Ash, the only witness who testified that
defendant struck T.M. with the purse, described T.M.’s injuries to
include a gash on her forehead and on her knee. She did not
12
testify that either of those injuries were a result of the assault
with the purse rather than the assault with the deadly weapon,
namely, the vehicle. Further, T.M. attributed her injuries to
being struck by the vehicle and falling to the ground. When she
testified to having a “knot” on her head, she agreed with the
prosecutor that the injury was the result of falling after being
struck by the vehicle. Accordingly, the only legally viable theory
for count 1, the domestic violence conviction, is that defendant’s
criminal act was assault with the vehicle.
The same is true for count 2. The prosecution elected to
proceed on a theory of assault “with a deadly weapon or
instrument other than a firearm … .” (§ 245, subd. (a)(1).) “In
determining whether an object not inherently deadly or
dangerous is used as such, the trier of fact may consider the
nature of the object, the manner in which it is used, and all other
facts relevant to the issue. [Citations.]” (People v. Aguilar (1997)
16 Cal.4th 1023, 1028–1029.) The evidence at trial did not
support a reasonable inference that defendant used the purse as
a deadly weapon. The only legally viable theory for the
conviction of assault with a deadly weapon is the one argued by
the prosecutor, that defendant used his vehicle as a deadly
weapon.
“When confronted with offenses within the purview of
section 654, the proper procedure is to stay execution of sentence
on all but one of the offenses subject to this section. [Citation.] A
concurrent sentence simply does not satisfy the prohibition
against double punishment. [Citations.]” (People v. Pena (1992)
7 Cal.App.4th 1294, 1312.) Here, the trial court sentenced
defendant to three years on count 2 to be served concurrently
with counts 1 and 4. Instead, it should have stayed the execution
13
of the sentence on count 2. Accordingly, under section 1260, the
judgment must be modified to reflect a stay of count 2. We will
therefore modify the judgment ourselves to stay the sentence on
count 2 in accordance with section 654. (See People v. Bey (2025)
108 Cal.App.5th 144, 167–168, citing People v. Alford (2010) 180
Cal.App.4th 1463, 1473 [exercising authority under § 1260 to
modify judgment rather than remand as remedy for trial court’s
failure to impose and stay sentence].)
14
IV. DISPOSITION
The judgment is modified to stay the sentence on count 2
under section 654. The trial court is directed to prepare an
amended abstract of judgment reflecting this modification and to
forward a certified copy to the Department of Corrections and
Rehabilitation. As so modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM (D.), J.
We concur:
HOFFSTADT, P. J.
BAKER, J.
15