P. v. Rhone

Filed 7/14/10 P. v. Rhone CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

Appeal from a judgment of the Superior Court of Los Angeles County. Roger Ito, Judge. Affirmed as modified.

Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

__________________________

This case is before us a second time, following our remand for resentencing. (People v. Rhone (July 27, 2009, B203239) [nonpub. opn.].) Steven Alan Rhone was charged by information with making a criminal threat (count 1) (Pen. Code,  422),[1]dissuading a witness by force or threat (count 2) ( 136.1, subd. (c)(1)), false imprisonment by violence (count 3) ( 236) and two counts of resisting, obstructing or delaying a peace officer (counts 4 and 5) ( 148, subd. (a)(1)).[2] The information further alleged Rhone had suffered two prior serious or violent felony convictions within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior serious felony convictions within the meaning of section 667, subdivision (a)(1). Finally, the information alleged Rhone had served 12 separate prison terms for prior felony convictions warranting sentence enhancements under section 667.5, subdivision (b).

The evidence at trial established that Rhone had fathered the two children of Samenthia King. On November 14, 2006 Los Angeles County Sheriffs deputies arrived at Kings home to investigate a report of domestic violence. King and Rhone were visible through the open front door. Rhone spoke softly to King, who refused the deputies requests to leave the house and told them she was fine. After more than an hour, the deputies entered the house when they saw Rhone push King onto the sofa and hit her in the chest. Following Rhones arrest, King reportedly told the deputies he had said he would kill her before he would let her leave the house. (People v. Rhone, supra, B203239.)

The jury acquitted Rhone of making a criminal threat but convicted him of dissuading a witness by force or threat and resisting a peace officer.[3] At the commencement of the bifurcated bench trial on the prior conviction allegations, the People amended the information to correctly allege Rhone had suffered only one prior serious or violent felony conviction within the meaning of the Three Strikes law and section 667, subdivision (a). The court found the remaining allegations true and sentenced Rhone to an aggregate state prison term of 19 years: eight years on the witness intimidation count (the upper term of four years doubled under the Three Strikes law), plus enhancements of five years for the prior serious felony conviction and an additional six years for prior prison terms. (The court imposed and stayed the remaining enhancements for prior prison terms under section 667.5, subd. (b).) (People v. Rhone, supra, B203239.)

Rhone appealed, contending the trial court erred by failing to instruct on a necessary elementthe use of force or threatof the charge of dissuading a witness by threat or force under section 136.1, subdivision (c)(1). We concluded the failure to instruct on this element was not harmless beyond a reasonable doubt and modified the judgment with respect to count 2 by reducing the conviction to a felony violation of section 136.1, subdivision (a), dissuading a victim, and remanded the matter for resentencing. (People v. Rhone, supra, B203239.)

At Rhones second hearing on January 27, 2010, the trial court sentenced Rhone as a second strike offender to an aggregate state prison term of 17 years: six years for dissuading a victim under section 136.1, subdivision (a) (the upper term of three years doubled under the Three Strikes law) (count 2), plus five years for the section 667, subdivision (a) prior serious felony enhancement, plus six years for the section 667.5, subdivision (b) prior prison term enhancements. Sentencing on count 4 for resisting, delaying or obstructing a peace officer was stayed under section 654. The remaining prior prison term enhancements were dismissed. ~(RT 4-5, CT 16-17)~

We appointed counsel to represent Rhone on appeal. After examination of the record counsel filed an opening brief in which no issues were raised. On May 27, 2010 we advised Rhone he had 30 days within which to personally submit any contentions or issues he wished us to consider. No response has been received to date.

We have examined the entire record and are satisfied Rhones attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v.Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436, 441.)

The judgment is affirmed.

PERLUSS, P. J.

We concur:

WOODS, J.

JACKSON, J.

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[1] Statutory references are to the Penal Code.

[2] Count 5 was dismissed at the start of the trial.

[3] After the jury returned without a verdict on count 3, the false imprisonment count, the People dismissed it.