People v. Stone CA3

Filed 7/27/16 P. v. Stone CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C074420

Plaintiff and Respondent, (Super. Ct. No. CM035993)

v.

WALTER KEVIN STONE,

Defendant and Appellant.

Following the jury’s verdict, the prosecution agreed to dismiss a pending felony charge in return for which defendant Walter Kevin Stone agreed not to file a motion for new trial, and to limit any appeal to sentencing issues. Defendant also understood the court would sentence him to the upper term for corporal injury to a cohabitant with the possibility of a consecutive one-year term for assault with a deadly weapon if the court determined Penal Code section 654 did not apply. The trial court imposed the longer

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term, but erred by also imposing an enhancement it had earlier found not to be true. Defendant asks us to remand the case for resentencing with instructions not to impose the longer term. For the reasons that follow, we remand for resentencing but without the instructions defendant seeks. BACKGROUND In March 2012, defendant lived with Caryann Gonzales. One evening, the two argued for much of the night and into the morning. The argument became physical. Around 2:30 a.m., defendant struck Gonzales in her right thigh with a wooden club wrapped in black electrical tape. He threatened to “crush her head” with the club. He also struck her on her left knee with a screwdriver. Defendant left the apartment and returned around 5:00 a.m. While Caryann was reaching into the bedroom closet, defendant slammed the closet door on her foot. The prosecutor charged defendant in count 1 with corporal injury to a cohabitant, the crime occurring within seven years of a conviction for the same crime (Pen. Code, § 273.5, subds. (a), (f)(1));1 2 in count 2 with possession of a billy (§ 22210); and in count 3 with assault with a deadly weapon (§ 245, subd. (a)(1)). The prosecutor alleged as special allegations that defendant used a billy club in committing counts 1 and 3 in violation of section 12022, subdivision (b)(1), a dangerous weapon use enhancement; and that he had served a prior prison term within the meaning of section 667.5, subdivision (b). Defendant waived preliminary hearing. Subsequently, the prosecution filed a second action against defendant (CM036784), charging him with dissuading Caryann from testifying in this case. While in jail awaiting trial in this matter, defendant called Caryann’s brother, Edwin Gonzales,