P. v. Stone

Filed 4/13/06 P. v. Stone CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Albert J. Wojcik, Judge. Affirmed with directions.

Jill Lansing, under appointment of the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Garrett Beaumont, Senior Deputy Attorney General, and Andrew S. Mestman, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Following a jury trial, Paris Stone (appellant) was convicted of making criminal threats, a felony (Pen. Code,^[1] § 422),^[2] and violating a restraining order, a misdemeanor (§ 273.6),^[3] both involving his wife, Kimu Stone (Kimu). The court sentenced him to five years in prison, including two years on the section 422 count, doubled as a second strike (§ 1170.12), plus one year for a prison prior (§ 668.5); a concurrent sentence of 365 days was imposed on the remaining count, with credit for 277 days served.

On appeal, appellant raises three issues: His first contention, that the trial court committed prejudicial error in admitting evidence of his bad character and prior violence (Evid. Code, § 1101, subd. (b)), has no merit. His second contention, that the court acted improperly in allowing certain testimony to impeach Kimu with prior inconsistent statements (Evid. Code, § 1235), has some merit; however, we conclude that any error was harmless. Finally, the People concur with appellant's final contention, that the sentence imposed violates section 654. We therefore remand the matter for the sole purpose of modifying the judgment to reflect the proper sentence.

FACTUAL AND PROCEDURAL HISTORY

A. The Events of May 12, 2004.

During the afternoon hours on May 12, 2004, Deputy Manual Campos of the Riverside County Sheriff's Department was dispatched to the home of Kimu's mother, Candace Smith. Kimu, who had been residing in her mother's home since April, arrived a few minutes later. Kimu told Campos that appellant was on his way there to pick up some property which she did not want to give to him, and she feared that he would become physical with her. She indicated that appellant was very aggressive and that he had abused her in the past. She had recently obtained a restraining order against him, but as far as she knew, he had not yet been served. In fact, apparently then unknown to Kimu, appellant had been served earlier that day, after which he threw the order on the ground and ran away.

According to Campos, Kimu was â€