People v. Stone CA3

Filed 9/17/20 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Placer)
----
THE PEOPLE, C090859
Plaintiff and Respondent, (Super. Ct. No. 62115828)
v.
JAMES MICHAEL STONE,
Defendant and Appellant.
Appointed counsel for defendant James Michael Stone filed an opening brief that
sets forth the facts of the case and asks this court to review the record and determine
whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal. 3d
436.) After examining the record, we find no arguable error that would result in a
disposition more favorable to defendant and affirm.
1
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was originally charged with molesting two young girls, including his
daughter, by inappropriately touching both girls and kissing one. A jury found him guilty
of three counts of lewd and lascivious conduct on a child under 14 years of age (Pen.
Code, § 288, subd. (a)),1 and found true a multiple victim enhancement (§ 667.61, subd.
(c)). The trial court found true allegations that defendant had a serious felony prior
(§ 667, subd. (a)(1)), a strike prior (§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)), and a
prior sex offense (§ 667.61, subd. (d)(1)). He was sentenced to 155 years to life in
prison.
Defendant appealed, and in a March 2019 unpublished opinion we reversed the
lewd and lascivious conduct count related to defendant’s daughter as well as the multiple
victim enhancement. (People v. Stone (Mar. 12, 2019, C078779) [nonpub. opn.].) We
remanded the matter for the trial court to amend the abstract of judgment and to
determine whether to exercise newly granted discretion under Senate Bill No. 1393 to
strike defendant’s prior serious felony conviction under section 667, subdivision (a).
(People v. Stone, supra, C078779.)
Upon remand, defense counsel filed a written motion to strike the five-year prior
serious felony enhancement. The prosecutor opposed the motion.
On October 9, 2019, the trial court conducted a hearing on the motion. Defendant
was not present at the hearing, having executed and filed a written waiver of personal
presence under section 977.
Following the hearing, the court denied defendant’s motion to strike the prior
serious felony enhancement. After acknowledging its discretion to dismiss the
enhancement and considering the arguments of counsel as well as the facts of the case,
1 Further undesignated statutory references are to the Penal Code.
2
the court declined to exercise its discretion to dismiss the five-year prior serious felony
enhancement.
On October 30, 2019, the trial court filed an amended abstract of judgment
showing the imposition of consecutive, doubled terms of 50 years to life for counts one
and two, plus five years for the prior serious felony enhancement under section 667,
subdivision (a). Defendant timely appealed.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief setting forth the facts of the case and requesting that this court review the record to
determine whether there are any arguable issues on appeal. (People v. Wende, supra,
25 Cal. 3d 436.) Defendant was advised of his right to file a supplemental brief within 30
days of the date of filing of the opening brief. More than 30 days elapsed, and we
received no communication from defendant.
Having undertaken an examination of the entire record, we find no other arguable
error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
/s/
Duarte, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Murray, J.
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