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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,


1     At the time defendant was charged, current subsection (f)(1) was designated as
subsection (e)(1). (Stats. 2012, ch. 867 (S.B. 1144) § 16.)
2      Undesignated section references are to the Penal Code.

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and asked him to get Caryann out of town so she would not be able to testify. Although
she had been subpoenaed, Caryann did not appear at trial, and the court issued a warrant
for her arrest. Meanwhile, defendant received an email from Edwin saying, “ ‘What you
need has been taken care of brother, so handle your business with your legal battle.’ ” An
investigator found Caryann one month later at her sister’s home in Portola, hiding in a
closet under some blankets. When called as a witness at trial, Caryann refused to testify,
and the court held her in contempt.3
       During trial on this action, the court gave the jury two unanimity instructions. The
instructions stated the prosecution had presented evidence of three acts to prove
defendant committed corporal injury: striking Caryann in the thigh with the club, striking
her on the knee with a screwdriver, and slamming the closet door on her foot. The
instruction also stated the prosecution had presented evidence of two acts to prove
defendant committed assault with a deadly weapon: striking with the club, and striking
with the screwdriver. The court instructed the jury not to find defendant guilty of the
offenses unless each juror agreed either that the prosecution proved defendant committed
at least one of the acts and each agreed as to the act he committed for each offense, or
that the prosecution proved defendant committed all of the acts and at least the number of
offenses charged.
       The jury convicted defendant on all counts and found the weapon use allegations
on counts 1 and 3 to be true. The verdict forms did not ask the jury to state which acts it
found constituted the crimes of corporal injury and assault with a deadly weapon.




3      Diane Freese, defendant’s former cohabitant, testified at trial of physical abuse she
suffered from defendant. She stated she was afraid to testify because defendant had
threatened to kill her when they were in a relationship, and because the night before her
testimony, she received a phone call from an unknown person who whispered,
“ ‘[T]estify, and you being a dead bitch.’ ” Defendant admitted he had been convicted in
2006 for domestic violence against Freese.

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       The trial court found the prior prison term allegation and the prior conviction
allegation to be true.
       However, the court (Robert A. Glusman, J.) discovered an error in the verdict
form for count 1. The form asked the jury to find defendant guilty of committing
corporal injury under section 273.5, but it incorrectly asked the jury to find true the
weapon use allegation under section 12022 as a result of convicting defendant on count 1
of assault with a deadly weapon under section 245. Due to the clerical error on the
verdict form, and having already dismissed the jury, the trial court found the weapon use
allegation as to count 1 not to be true.
       Thereafter, the prosecution and defendant entered into an agreement and recited it
to the court (Kristen A. Lucena, J.). Defendant agreed he would not file a motion for new
trial, he would waive his appeal rights except for sentencing issues, and he would be
sentenced to a prison term of either seven years eight months or six years eight months,
calculated as follows: the upper term of five years on count 1; a consecutive eight
months (one-third the middle term) on count 2; a consecutive one year for the prior
prison term, and, if not barred under section 654, one year (one-third the middle term) on
count 3. The parties disagreed over whether the verdicts on counts 1 and 3 were based on
separate acts, and they asked the court to decide that issue. In exchange for the
defendant’s agreements, the prosecution agreed to drop the action against defendant for
dissuading Caryann not to testify.4




4       Although the jury found true a weapon use enhancement under section 12022,
subdivision (b)(1), for count 3, the enhancement is not authorized for a conviction of
assault with a deadly weapon under section 245. The weapon use enhancement is not
available where “use of a deadly or dangerous weapon is an element” in the commission
of the felony. (§ 12022, subd. (b)(1); People v. McGee (1993) 15 Cal.App.4th 107, 114-
115.) However, the parties did not include the enhancement in their settlement
agreement, the court did not impose it when it imposed sentence, and no party has

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        At sentencing, the court (Glusman, J.) recited it would sentence defendant to state
prison for a term of seven years eight months, calculated as follows: the upper term of
five years on count 1, plus one year for the weapon use enhancement under section 12022
for count 1; a consecutive eight months on count 2; and a consecutive one year for the
prior prison term enhancement. Neither party caught the court’s mistake of imposing the
weapon use enhancement on count 1 which the court had previously determined was not
true.
        As for count 3, the court said the sentence would run concurrently, but it did not
initially determine a specific term. Moreover, although it said the sentence would run
concurrently, the court stated count 3 was not a concurrent act: “I believe it was
separated sufficiently in time to make it consecutive. But not withstanding that, the
Court’s going to honor the agreement reached by the parties.”
        Defense counsel objected to the court imposing the weapon use enhancement on
count 1 not because the court had earlier found the enhancement not to be true, but
because, in his opinion, count 1 was based on defendant closing the closet door on
Caryann’s foot, and a closet door was not a dangerous weapon.
        The court said it was basing its ruling “on the fact there were three separate acts of
violence here. One with a billy club, one with the closet door, one with a screwdriver.
The Court is finding the screwdriver was a dangerous or deadly weapon, giving rise to
the enhancement . . . . [¶] . . . The jury made findings under 12022(b)(1) on both Count
1 and Count 3, and so I’m going to go with that.” The court then sentenced defendant as
it had recited earlier. Also at that time, it stated the term for count 3 was the upper term
of four years to run concurrently.




claimed the omission was error. Indeed, the Attorney General concedes the enhancement
is unlawful in this instance and must be stricken. We agree.

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                                          ANALYSIS
       Defendant contends on appeal (1) the trial court erred by sentencing him to the
one-year weapon use enhancement; and (2) on remand for resentencing, we should direct
the court to impose a sentence of six years eight months. He argues we should so direct
the trial court because (a) section 654 bars consecutive sentencing on count 3 due to the
fact the information alleged defendant committed both counts 1 and 3 by use of a billy
club, and (b) defendant was not put on notice by the pleading that he would be charged
for any act other than use of the billy club.
       The Attorney General agrees the trial court erred by sentencing defendant to the
weapon use enhancement on count 1, but she argues section 654 does not prevent the
court on remand from imposing a sentence of seven years eight months, as agreed to by
the parties, by imposing a consecutive sentence of one year (one-third the midterm of
three years) on count 3. She acknowledges the information charged defendant in count 3
with committing an assault with the billy club and, as an enhancement to count 1,
charged defendant with committing corporal assault with a billy club. However, she
contends the language of count 1 did not limit itself to a billy club, and the jury was
instructed by means of the unanimity instructions it could find defendant guilty of count 1
based on defendant’s use of the billy club, the screwdriver, or the closet door. She argues
we can reasonably infer from the record that the jury found defendant guilty on count 1
based at least on his act of slamming the victim’s foot with a closet door.
       We conclude the trial court incorrectly imposed sentence for the weapon use
enhancement on count 1. A sentence enhancement based on an enhancement found not
to be true is an unauthorized sentence.
       We reject defendant’s remaining arguments, and remand the matter for
resentencing without directing the court to impose a sentence no greater than six years




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eight months.5 In People v. McCoy (2012) 208 Cal.App.4th 1333, 1340, this court held
that a trial court exercising its sentencing discretion under section 654 may base its
decision on any facts that are in evidence at trial, without regard to the verdicts, unless
some circumstance in those verdicts forecloses the trial court from doing so. For
example, in People v. Siko (1988) 45 Cal.3d 820, both the charging document and the
verdicts specified two particular sex offenses as the basis for generic charges of lewd and
lascivious conduct. Neither the closing argument nor the instructions suggested any other
basis for the molestation counts. (Id. at p. 826.) “Siko is thus authority that where there
is a basis for identifying the specific factual basis for a verdict, a trial court cannot find
otherwise in applying section 654.” (People v. McCoy, supra, at p. 1339.) Where there
is not a basis for identifying the specific factual basis for a verdict, the trial court is not
foreclosed from considering all the available evidence in making its decision under
section 654.
       Here, the information originally foreclosed the trial court from sentencing on
counts 1 and 3 consecutively, as both counts were based on the same act, striking
Caryann with a billy club. However, the prosecution submitted evidence of two
additional separate and different acts not alleged in the information to establish guilt
under both counts, and the court instructed the jury it could convict defendant on any of
those acts. These actions had the effect of amending the information.




5      Our review is limited under the California Rules of Court solely to defendant’s
claim under section 654 against the sentence imposed on counts 1 and 3. “By agreeing to
a specified prison term personally and by counsel, a defendant who is sentenced to that
term or a shorter one abandons any claim that a component of the sentence violates
section 654’s prohibition of double punishment, unless that claim is asserted at the time
the agreement is recited on the record.” (Cal. Rules of Court, rule 4.412(b).) Defendant
asserted his claim under section 654 when the parties recited the settlement agreement to
the court, but limited it to the sentences applied on counts 1 and 3. That, in turn, limits
our review accordingly.

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       Defendant thus argues he did not receive constitutionally adequate notice of the
charges against him, and section 654 should prevent the court from sentencing him
consecutively on counts 1 and 3 as they were originally charged. But defendant did not
object to the admission of the evidence, the unanimity instructions, nor to the
prosecution’s closing argument explaining the role of the three acts. He thereby forfeited
any claim he may have had for being tried for an offense different than the one alleged in
the information. (See People v. Burnett (1999) 71 Cal.App.4th 151, 178-179 [failure to
object to prosecution for a crime not subject to preliminary examination and the giving of
a unanimity instruction forfeits claim of error].)
       Accordingly, because the jury instructions and the verdict forms authorized the
jury to convict defendant on any of three separate acts, the trial court has discretion under
section 654 to base its sentencing decision on the evidence of those three acts introduced
at trial and sentence defendant consecutively on counts 1 and 3.
       In his reply brief, defendant contends for the first time his trial counsel rendered
ineffective assistance of counsel by not objecting to the additional evidence and
instructions. A claim of ineffective assistance of counsel raised by a defendant for the
first time in a reply brief is forfeited. (People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.)
                                       DISPOSITION
       The judgment is affirmed, and the matter is remanded solely for resentencing in
accordance with this opinion.

                                                         NICHOLSON              , J.


We concur:

      RAYE                   , P. J.


      HOCH                   , J.



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