(Super. Ct. No. CM030716)
The opinion of the court was delivered by: Robie ,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After his wife screamed at him for purposefully leaving on every light and appliance in the house, defendant Colin Lee Exum choked her for 10 seconds, while yelling he was going to kill her and her animals and burn down the house. She called 911, leading to a four-hour standoff between police and defendant during which defendant refused to talk with police or allow them inside the house without a warrant. The police eventually accompanied the wife inside to collect some of her belongings. Once inside, they arrested defendant, who smelled of alcohol and tried to resist being handcuffed.
Following a bench trial in which defendant took the stand and denied fighting with or choking his wife, the court found him guilty of inflicting corporal injury on his spouse. (Pen. Code,*fn1 § 273.5.) Thereafter, the court denied defendant's motion to reduce the offense to a misdemeanor (§ 17, subd. (b)(3)),*fn2 suspended imposition of sentence, and placed him on probation for three years.
Defendant appeals, contending abuse of discretion in denying his motion to reduce the offense to a misdemeanor and vagueness and overbreath problems with two of the probation conditions. Finding one of the probation conditions vague and overbroad, we modify that condition and affirm the judgment as modified.
The Court Did Not Abuse Its Discretion
In Refusing To Reduce The Offense To A Misdemeanor
The court denied defendant's motion to reduce the offense to a misdemeanor for the following three reasons: (1) defendant took the stand, offering "possible false testimony"; (2) he engaged in a "four[-]hour standoff [with police], which shows extremely bad judgment, and perhaps some disrespect for authority, and some character problems that would make it inappropriate to reduce the charge"; and (3) he choked the victim in "an extremely sensitive area . . . where your air intake is closed off for a brief period of time," which could also lead to "overwhelming" "psychological injury."
On appeal, defendant contends the court abused its discretion because it "violated [his] right to due process by punishing [him] for electing to testify," "violated [his] Fourth Amendment rights by punishing [him] for exercising his right against warrantless search and seizure," and "denied the motion based on generalized rather than individualized factors." We take each contention in turn, finding merit in none.
As to the court's consideration that defendant possibly perjured himself, defendant claims error because the court did not make "on-the-record findings as to each element of perjury" and the court imposed a greater punishment without actually finding defendant committed perjury. Defendant's argument relies on People v. Howard (1993) 17 Cal.App.4th 999, which held that "when imposing an aggravated sentence on the ground the defendant committed perjury at trial, the sentencing court is constitutionally required to make on-the-record findings as to all the elements of a ...