Filed 10/22/15 P. v. Kelly CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068251
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. MF010309A)
                   v.

EMILY ALLISON KELLY,                                                                     OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Harry M.
Dougherty, Judge. (Retired judge of the Riverside Sup. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.)
         Monique Q. Boldin, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Poochigian, Acting P.J., Detjen, J. and Smith, J.
       Defendant Emily Allison Kelly was convicted by jury trial of possession of a
controlled substance (Health & Saf. Code, § 11377, subd. (a); count 1), carrying a
concealed dirk or dagger (Pen. Code, § 21310; count 2), misdemeanor possession of drug
paraphernalia (Health & Saf. Code, § 11364.1; count 3), and misdemeanor being under
the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 4).
On appeal, she contends a mistake in a written jury instruction requires that her
conviction for carrying a concealed dirk or dagger be reversed. We affirm.
                                         FACTS
       On May 8, 2012, at about 1:30 a.m., Kern County Sheriff’s Deputies Mountjoy
and Chambless were dispatched to a residence in the Mojave area. They exited their
patrol vehicle and walked up to the residence. As they approached, they encountered
defendant and a heavily intoxicated male, Miles, outside the residence. Defendant, who
was standing near the open carport, exhibited symptoms of methamphetamine use.
       A few feet from defendant were a pile of rocks, a large soda-type cup with a straw
coming out of it, some clothing, shoes, and a lady’s purse. The deputies asked defendant
if these were her items, and she said everything except the purse was hers. The purse was
about five inches from the soda cup and about 12 inches from the other items. The items
appeared to be all together. The purse did not have any dust or debris on it. Defendant
said something about rocks. When the deputies requested her identification, she said it
was inside her vehicle. They asked if they could search her vehicle, but when they did,
they found no identification. Then they inquired about the purse, again asking if it was
hers. She said it was not. The deputies did not see any other females present.
       When the deputies determined they would be arresting defendant for being under
the influence of a controlled substance, they searched the purse. Inside, they found
defendant’s driver’s license, mail addressed to her, two methamphetamine pipes, and a
baggie containing a usable amount of methamphetamine.



                                             2.
       Deputy Mountjoy while speaking to defendant did not observe any weapons over
her clothing. When Deputy Morales arrived on the scene, she got a good look at
defendant’s upper body and, like the other deputies, did not see any weapons. Deputy
Morales asked defendant if she had any weapons and she said she did not. But when
Deputy Morales searched defendant, she found a small, fixed-blade knife in a leather
sheath hanging from a lanyard around defendant’s neck and concealed under her shirt and
over her bra.
       At the station, defendant was extremely uncooperative and she refused to provide
a urine sample.
Defense Evidence
       Defendant’s father, Forest Helm, testified that he owned the Mojave residence
with defendant. One of his other daughters lived there. He went to the property often to
water the trees and clean up some of the junk around there. When he visited before
May 8, 2012, he noticed junk in the carport. There was a purse or bag that had papers
and other things in it. The bag had been there for five or six weeks. He let his other
daughter know it was there.
       On cross-examination, Helm explained that he did not pay too much attention to
the bag until one day he thought it might be important to someone. So he opened it and
saw quite a few papers inside. But he did not read them and did not see papers belonging
to defendant. He agreed that sandstorms were not infrequent in Mojave. The first time
he mentioned to defense counsel that he had seen the bag was on the day before this
testimony.
       On redirect, Helm said the bag was brown and kind of like a purse.
       On recross-examination, Helm testified he was not sure if he was at the residence
at the time of defendant’s arrest.
       On redirect, he said he did not think he was present when defendant was arrested.



                                            3.
         Defendant’s husband, William Kelly, testified that defendant’s car had been stolen
close to the time of her arrest. Defendant normally always had her purse with her. But
after the car was stolen, he no longer saw her purse in the house. He had no idea where
her purse was at that time.
         Kelly was not present when defendant was arrested. He later went to retrieve her
property from the evidence room. He was given a large, brown bag. He did not
recognize the bag and wondered whose bag it was.
         On recross, Kelly said he did not think defendant’s purse had ever been recovered.
He received only the brown bag that he did not recognize as hers. Nevertheless, he did
not go to anyone in law enforcement and tell them the bag he received was not his wife’s
purse.
         Defendant testified on her own behalf. She explained that when her car was
stolen, it was missing for about 10 days before it was found. The small, black purse she
had been using, which contained her keys, wallet, and identification, was stolen along
with the car.
         She was at the residence that evening because her sister had called her and told her
there were some items left in her carport that had been stolen in her car. They had been
there for some time, but she had forgotten to tell defendant. When defendant arrived at
the residence that night, her sister wanted her to come into the house. Defendant declined
and said she was there to get her property. The sister got upset and called the police. The
deputies arrived when defendant was outside with Miles. She told them there was no
disturbance. She was wearing shorts and sandals, and she was getting cold. She had
stopped by her girlfriend’s house and had borrowed her girlfriend’s daughter’s black
velveteen jacket that had a broken zipper and did not close. Under that jacket, she was
wearing a very light camisole-type of blouse. She wore a small knife hanging around her
neck and hanging over her camisole. The knife was a gift purchased at a sporting goods
store.

                                              4.
       Deputy Morales asked her if she had anything illegal and she said no. As Deputy
Morales moved behind her and started searching her, Deputy Morales asked her if she
had any weapons. Defendant said yes, but Deputy Morales found the knife at the same
time. The knife was hanging over the camisole but under the jacket that would not zip
up.
       Defendant told the deputies her identification was in the middle console of her car.
They did not find it because they did not look where she told them to look. When the
deputies asked her if the purse was hers, she said it was not. She did not know how her
identification got into the bag, which belonged to Miles. The papers got into the bag with
her permission. The methamphetamine and pipes were not hers. She had never seen
them before and was not aware they were in Miles’s bag.
       She wanted to give the deputies a urine sample, but she did not receive the water
she asked for and then she fell asleep. She was never given the opportunity to give a
sample.
       On cross-examination, defendant explained that the lady’s purse belonged to
Miles, and he put defendant’s mail, court documents, and lipstick into his purse. She told
the deputies that the person who stole her car (her nephew) must have stolen her things
and put them in the purse. Her nephew stole the car at gunpoint, causing her, Miles, and
another man to jump out of her moving car.
       Regarding the knife, defendant explained that all three of the deputies were talking
to her at the same time. When Deputy Morales decided to search her, Deputy Morales
walked behind her and told her to raise her hands. Deputy Morales asked her if she had
anything illegal on her and she answered that she did not. Defendant’s knife was hanging
where everyone could see it, but her black jacket probably caused the deputies to miss it.
When Deputy Morales found the knife, she laughed and laughed at the other deputies and
showed them how funny it was that they had missed it. Yet Deputy Morales did not think
it was very funny; she pointed it out and the other deputies laughed. She said, “[L]ook

                                             5.
what you guys missed.” Defendant agreed with the prosecutor that the knife had been
“right in the open the whole time just everyone didn’t see it.”
       Defendant explained that she did not refuse to provide a urine sample. She was
looking forward to providing one because a deputy told her she would not be charged if
she gave a sample that proved she was not on drugs.
       Defendant and her husband later went to retrieve her personal items from the
sheriff’s station. She took Miles’s purse, even though it was not hers, because he was
incarcerated and asked her to get it.
       Following this testimony and the attorneys’ arguments, the trial court orally
instructed the jury. Regarding count 2, the trial court orally instructed the jury with
CALCRIM No. 2501, as follows:

              “The defendant is charged in Count 2 with unlawfully carrying a
       concealed dirk or dagger, in violation of Penal Code Section 21310. To
       prove the defendant is guilty of this crime, the People must prove:

              “One, the defendant carried on her person a dirk or dagger.

              “Two, the defendant knew that she was carrying it.

              “Three, it was substantially concealed on the defendant’s person;
       and

            “Four, the defendant knew that it could be readily used as a stabbing
       weapon.

              “The People do not have to prove the defendant used or intended to
       use the alleged dirk or dagger as a weapon. A dirk or dagger is a knife or
       instrument with or without a hand guard that is capable of ready use as a
       stabbing weapon that may inflict great bodily injury or death. Great bodily
       injury means significant or substantial physical injury. It is an injury that is
       greater than moderate or minor harm.

              “A pocket knife or non-locking folding knife is not a dirk or dagger
       unless the blade is exposed and it is in a locked position. A knife carried in
       a sheath worn openly is not concealed.” (Italics added.)




                                              6.
       The written form of this instruction, however, contained an additional phrase in
the final sentence. It stated:

             “The defendant is charged in Count 2 with unlawfully carrying a
       concealed dirk or dagger in violation of Penal Code section 21310.

              “To prove that the defendant is guilty of this crime, the People must
       prove that:

              “1. The defendant carried on her person a dirk or dagger;

              “2. The defendant knew that she was carrying it;

              “3. It was substantially concealed on the defendant’s person;

              “AND

            “4. The defendant knew that it could readily be used as a stabbing
       weapon.

              “The People do not have to prove that the defendant used or
       intended to use the alleged dirk or dagger as a weapon.

               “A dirk or dagger is a knife or other instrument with or without a
       handguard that is capable of ready use as a stabbing weapon that may
       inflict great bodily injury or death. Great bodily injury means significant or
       substantial physical injury. It is an injury that is greater than minor or
       moderate harm.

              “A pocket knife or nonlocking folding knife is not a dirk or dagger
       unless the blade is exposed and in the locked position.

              “A knife carried in a sheath and worn openly suspended from the
       waist of the wearer is not concealed.” (Italics added.)
                                      DISCUSSION
       Defendant contends the mistaken phrase (“suspended from the waist of the
wearer”) in the written instruction was factually unsupported by the evidence and likely
misled the jury into believing that the only place in which a person could legally wear an
unconcealed sheathed knife is around the waist and not around the neck or some other




                                             7.
part of the body. She asserts that this instruction vitiated her defense that she wore the
sheathed knife openly around her neck.
        The People concede the written instruction was technically erroneous because
there was no evidence defendant wore the knife around her waist. But they argue there is
no reasonable probability the erroneous instruction could have led the jury to conclude
that a sheathed knife worn openly around the waist is not concealed but a sheathed knife
worn openly around the neck is concealed.
        The additional phrase, “suspended from the waist of the wearer,” is found in the
official CALCRIM No. 2501 instruction itself, as part an optional sentence: “[A knife
carried in a sheath and worn openly suspended from the waist of the wearer is not
concealed.]” Presumably, this optional sentence is provided because sheathed knives are
often worn on a belt around the waist. But in this case, it was not. Accordingly, the trial
court correctly eliminated the “suspended from the waist of the wearer” phrase from the
oral instruction, tailoring the instruction to the facts of the case. Unfortunately, the
phrase was mistakenly left in the written instruction.
        When oral and written instructions conflict it is presumed the jury followed the
written instructions. (People v. Mills (2010) 48 Cal.4th 158, 201; People v. Majors
(1998) 18 Cal.4th 385, 409-410.) “When an appellate court addresses a claim of jury
misinstruction, it must assess the instructions as a whole, viewing the challenged
instruction in context with other instructions, in order to determine if there was a
reasonable likelihood the jury applied the challenged instruction in an impermissible
manner. [Citations.]” (People v. Wilson (2008) 44 Cal.4th 758, 803-804.) We assess
instructions “in the context of the evidence presented and other circumstances of the trial
to determine whether the error was prejudicial.” (People v. Flood (1998) 18 Cal.4th 470,
489.)
        Here, we conclude the instructional error was harmless beyond a reasonable doubt.
(Chapman v. California (1967) 386 U.S. 18, 24.) “First, the court orally instructed the

                                              8.
jury with the correct instruction. Although this court gives priority to the written version
of an instruction when a conflict exists between the written and oral versions, the jury is
not informed of this rule. It is thus possible the jury followed the oral instruction.
Second, there is no indication the jury was aware of the slight difference between the
written and oral versions of the instructions, as it asked no questions about this point.”
(People v. Wilson, supra, 44 Cal.4th at p. 804.) Third, the evidence was overwhelming
that the knife hanging around defendant’s neck was substantially concealed and not worn
openly. The deputies did not see the knife and were unaware of its presence until Deputy
Morales found it under defendant’s shirt during a search of her person. Even if the jury
believed defendant’s version, she testified that the deputies did not see the knife because
the jacket she was wearing covered it. Thus, defendant’s testimony supported the
conclusion that the knife was substantially concealed by her jacket.
       We agree with the People that it is extremely unlikely the jury would have taken
the erroneous instruction to mean that the only way an openly worn sheathed knife could
be considered not concealed is if it is suspended from the waist, as opposed to the neck.
The entire issue regarding the knife was whether it was concealed, not whether it was
suspended from defendant’s waist or neck. “We ‘credit jurors with intelligence and
common sense’” (People v. McKinnon (2011) 52 Cal.4th 610, 670), and we think there is
no reasonable possibility the jury applied the challenged instruction in the manner
defendant proposes, particularly in light of the testimony and argument presented in this
case. Considering all of the factors, we conclude the error did not contribute to the guilty
verdict and was harmless beyond a reasonable doubt.
                                      DISPOSITION
       The judgment is affirmed.




                                              9.
