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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

Plaintiff and Respondent,

v.

WALTER KEVIN STONE,

Defendant and Appellant.

C074420

(Super. Ct. No. CM035993)

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));

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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.