Filed 4/2/15 P. v. Smith CA2/8
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B254089

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA128748)
                   v.

KELVIN D. SMITH,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Sean D. Coen, Judge. Affirmed as modified, with directions.


         Sunnie L. Daniels, under appointment by the Court of Appeal, for Defendant and
Appellant.


         No response by Respondent.




                                       __________________________
       On April 3, 2012, Kelvin Smith appeared in the backyard of his estranged wife,
Linda Smith, from whom he had been separated since 1991, and began harassing some
contractors. He left only after sheriff’s deputies arrived and told him to go.
       On May 1, 2012, Smith confronted Linda Smith as she returned home and began
pounding on her car window. Their adult son intervened, leading to a scuffle where
Smith struck his son with a cane. Smith grabbed Linda Smith’s cell phone when she tried
to call 911, shoved her against a truck, and ran off with the phone. A sheriff’s deputy
later arrived and obtained an emergency protective order. Smith returned to the house
that night, yelled at his wife to come outside, and threatened his son. A sheriff’s deputy
responded to a call about a possible burglary, arrested Smith, and served him with the
emergency protective order.
       On May 10, 2012, the court issued a domestic violence restraining order
commanding Smith to stay at least 100 yards away from his son and Linda Smith and to
have no contact with them for three years.
       On November 7, 2012, Smith was waiting for Linda Smith as she arrived home
and forced her inside her house. Bags of feces were on and around the porch. Smith,
who smelled of alcohol, shouted that he had been waiting hours for her and accused her
of being with another man. He said he would kill her if he caught her with someone else.
Smith pushed and slapped Linda Smith, ripped her blouse, and scratched her chest.
When she tried to call for help, Smith took away her cell phone again. Her legs were
bruised, her face was swollen, and she had a red mark on her eye.
       One week later, as Linda Smith sat in her parked car outside of church, Smith
entered and apologized for the previous incident. Smith approached Linda Smith at
church again two more times, warning that he would kill her if he caught her with another
man. In February 2013, Smith approached Linda Smith as she waited at a grocery store
checkout line and began to bag her groceries. He asked her to go home with him, and
when she refused he threatened to shove her into the store’s glass cigarette case. He once
more grabbed her cell phone and ran off.


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       On April 4, 2013 Smith walked into an optometry office where Linda Smith was
waiting for an appointment. Smith told her he hoped she would die and again threatened
to kill her if he found her with another man. When Linda Smith mentioned the
restraining order, Smith said it was worthless and left. She called 911 and a sheriff’s
deputy took a report. On April 10, 2013, Linda Smith and her son spotted Smith trying to
enter their back yard. The son physically detained Smith until sheriff’s deputies arrived,
at which time Smith was arrested for violating the restraining order.
       Smith was charged with violating a restraining order, making criminal threats, and
stalking. The information alleged four prior convictions under the Three Strikes law, two
of which also required a state prison sentence under Penal Code section 1170,
subdivision (h)(3).
       Smith represented himself at trial. Dora Lee Smith, Smith’s elderly mother,
testified on his behalf. Smith lived with his mother. According to her, she drove Smith
to Linda Smith’s house on May 1, 2012, and saw her grandson attack Smith without
provocation. Smith asked her to return Linda Smith’s cell phone. Linda Smith still came
to visit her son two or three times a week and would sometimes stay over in Smith’s
motor home. On November 7, 2012, she drove her other son to retrieve Smith’s motor
home, which was parked near Linda Smith’s house. According to the mother, she
retrieved the keys from Linda Smith, who did not appear to have any injuries. In March
2013 she drove Smith to the same grocery store where he later encountered Linda Smith.
In April 2013, Smith took a bus to his insurance company, which was located near the
office of Linda Smith’s optometrist.
       The jury acquitted Smith of the criminal threats charge, found him guilty of
stalking and violating a restraining order, and found true all the prior conviction
allegations. The trial court dismissed one of the Three Strikes allegations, and noted that
a Three Strikes sentence was not available because the current offenses were not serious
or violent. It then imposed a combined state prison sentence of six years.
       Smith filed a notice of appeal. On September 24, 2014, his appointed counsel
filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) in which no

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issues were raised. The brief included a declaration from counsel that she had reviewed
the record and had sent Smith a letter advising him that such a brief would be filed and
that he could file a supplemental brief if he chose to. That same day this court sent Smith
a letter advising him that a Wende brief had been filed and that he had 30 days to submit
a brief raising any issues he wanted us to consider. Smith asked for and was granted an
extension of time to do so, but he did not file a supplemental brief.
       We have examined the entire record and are satisfied that appellant’s attorney has
fully complied with her responsibilities and that no arguable issues exist. (Smith v.
Robbins (2000) 528 U.S. 259; Wende, supra, 25 Cal.3d 436.)
       Our review of the record reveals one clerical error, however. Although Smith was
convicted of stalking and sentenced pursuant to Penal Code section 646.9, subdivision
(a), the abstract of judgment states that he was convicted under subdivision (b) of that
section, which imposes a higher sentencing range where the stalking occurred while a
restraining order was in place. We will modify the judgment to reflect the true facts.

                                      DISPOSITION

       The judgment is modified to state that Smith was convicted of stalking under
Penal Code section 646.9, subdivision (a). The superior court is directed to modify the
abstract of judgment accordingly and send a corrected copy to the Department of
Corrections and Rehabilitation. The judgment as modified is affirmed.




                                                  RUBIN, ACTING P. J.
WE CONCUR:




              FLIER, J.                                                       GRIMES, J.



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