P. v. Kelly
Defendant Joseph Neil Kelly appeals from judgment entered following a jury conviction for first degree burglary (count 1; Pen. Code, 459).[1]Defendant was sentenced to an upper term of six years in state prison. On appeal, defendant contends (1) the trial court erred in denying his motion to represent himself (Faretta motion)[2]; (2) there was insufficient evidence of burglary; (3) the prosecution was barred from arguing the theory of burglary; and (4) imposition of the upper term sentence violated Cunningham v. California (2007) __ U.S. __, 127 S.Ct. 856, 860 (Cunningham). Court conclude that the trial courts denial of defendants Faretta motion was harmless error, but we find that while there was no evidence that defendant entered the victims house with the intent to commit larceny, there was sufficient evidence that he committed the felony of stalking based upon his repeated threats and harassment of the victim and her family.
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