P. v. Kelly
Filed 2/16/07 P. v. Kelly CA4/2
NOT TO BEPUBLISHED IN OFFICIAL REPORTS
California Rules of Court,rule 977(a), prohibits courts and parties from citing or relying on opinionsnot certified for publication or ordered published, except as specified by rule977(b). This opinion has not been certified for publication or orderedpublished for purposes of rule 977.
IN THE COURT OFAPPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATEDISTRICT
DIVISION TWO
| THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID LEE KELLY et al.,
Defendants and Appellants.
|
E037668
(Super.Ct.No. FWV 024397)
OPINION
|
APPEAL from the Superior Court of San BernardinoCounty. Ingrid Adamson Uhler, Judge. Affirmed.
Christine Vento, underappointment by the Court of Appeal, for Defendant and Appellant David LeeKelly.
David L. Polsky, underappointment by the Court of Appeal, for Defendant and Appellant Xavierre DmawrAllen.
Bill Lockyer and EdmundG. Brown, Jr., Attorneys General,Robert R. Anderson and Mary Jo Graves, Chief Assistant Attorneys General, GaryW. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising DeputyAttorney General, and Andrew Mestman, Deputy Attorney General, for Plaintiffand Respondent.
1. Introduction[1]
Ajury convicted defendant Kelly of false imprisonment by violence(§ 237, subd. (a)), plus an enhancement for personallyinflicting great bodily injury (§ 12022.7, subd. (a)); and torture (§ 206). The juryalso found Kelly had three prior â€
| Description | A jury convicted defendant of false imprisonment by violence(S 237, subd. (a)), plus an enhancement for personally inflicting great bodily injury (S 12022.7, subd. (a)); and torture (S 206). The juryalso found Kelly had three prior "strike" convictions for kidnapping, robbery, and first degree burglary. (SS 207, 211, 459, and 667, subd. (b)(i).) On the torture count, the court sentenced defendant to life with the possibility of parole. The court stayed imposition of the sentence on count 1. (S 654.) A jury also convicted defendant of false imprisonment by violence (S 237,subd. (a)), plus an enhancement for personally inflicting great bodily injury(S 12022.7, subd. (a)); torture (S 206); and attempted forcible oral copulation. (SS 664/288a, subd. (c)(2).) The court sentenced Defendant to life with the possibility of parole, plus a consecutive one year term on count 3. The court again stayed imposition of the sentence on count 1. (S 654.) Onappeal, defendant contends the trial courterred by allowing evidence of uncharged acts and by not giving the correct instruction on its use for impeachment. Additionally, defendant asserts the court should have given an instruction on torture. Defendant maintains the trial courterred in its instruction on eyewitness identification. (CALJIC No. 2.92.) Both defendants adopt one another's arguments to the extent they are relevant. In supplemental briefing, defendant argues that the prosecutor committed misconduct and defendant suffered ineffective assistance of counsel, both stemming from the victim's inconsistent testimony in an earlier trial. Court reject defendants' contentions and affirm. |
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