Superior Court of Contra Costa County, No. 05-080361-9, John Hideki Sugiyama, Judge. (Contra Costa County Super. Ct. No. 05-080361-9)
The opinion of the court was delivered by: Simons, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant Clenard Cebron Wade appeals following his conviction by a jury of grand theft, battery causing serious bodily injury, criminal threats, assault by force likely to produce great bodily injury, and false imprisonment. He contends the trial court erred in denying his pretrial motion to represent himself, his convictions for battery causing serious bodily injury and grand theft are unlawful, and the court improperly denied him presentence conduct credits. In the published portion of this opinion, we address two issues. First, we reject defendant's argument that Penal Code section 243, subdivision (f)(5)*fn2 helps define the phrase "serious bodily injury" in section 243, subdivision (d); that phrase is defined solely by section 243, subdivision (f)(4). Second, we agree with defendant's contention that a recent amendment to the definition of grand theft should be applied retroactively, reducing his conviction of that offense to petty theft. We remand for resentencing, including recalculation of defendant's presentence conduct credits.
In March 2008, the Contra Costa County District Attorney filed an information charging defendant with robbery (§§ 211, 212.5, subd. (c); count 1); battery causing serious bodily injury (§§ 242, 243, subd. (d); count 2); inflicting corporal injury on a cohabitant (§ 273.5, subd. (a); counts 3 and 13); criminal threats (§ 422; counts 4, 8, 12, and 21-23); assault with a firearm (§ 245, subd. (a)(2); counts 5 and 14); false imprisonment by violence (§§ 236, 237, subd. (a); counts 6 and 15); being a felon in possession of a firearm (§ 12021, subd. (a)(1); count 7); residential burglary (§§ 459, 460, subd. (a); count 9); assault by force likely to cause great bodily injury (§ 245, subd. (a)(1); count 10); forcible sexual penetration (§ 289, subd. (a)(1); count 11); forcible oral copulation (§ 288a, subd. (c)(2); counts 16 and 18); and forcible rape (§ 261, subd. (a)(2); counts 17, 19, and 20). Jane Doe II was the alleged victim in counts 1, 2, and 8, and Jane Doe I was the alleged victim in the remaining counts, except the firearm possession charge. The information also alleged various enhancements, prior strike convictions, serious felony convictions, and prison terms.
The trial court granted defendant's motion to dismiss counts 21 through 23. After trial, a jury found defendant guilty of the lesser included offense of grand theft (§ 487) from Jane Doe II on count 1, battery causing serious bodily injury to Jane Doe II on count 2, criminal threats against Jane Doe II on count 8, assault by force likely to produce great bodily injury to Jane Doe I on count 10, and false imprisonment by violence of Jane Doe I on count 15. The jury found defendant not guilty on the remaining counts.
The trial court found true the allegations regarding defendant's prior strike convictions, serious felony convictions, and prison terms. The court imposed a term of 25 years to life on count 15, concurrent terms of 25 years to life on counts 2 and 8, a concurrent term of three years on count 10, and a consecutive term of eight months on count 1. The court also imposed a total of eight additional years on four enhancements. The total prison sentence was 33 years 8 months to life. This appeal followed.
Because the facts underlying the counts involving Jane Doe I are not relevant to the issues on appeal, we need not summarize them, other than to point out that they involve several alleged episodes of threats and physical and sexual violence against Jane Doe I, a woman with whom defendant had resided in a romantic relationship. Because the facts underlying the counts involving Jane Doe II are relevant to the issues on appeal, we do summarize them.
Jane Doe II testified she had a brief relationship with defendant in August 2006. He arrived at her house in the early morning hours of August 26th. He was slurring his words and being very loud, and she told him to leave. He got on top of her on her bed and refused to leave. They argued and he began to choke her with his arm. She managed to get his arm off her neck and they struggled. Defendant threatened to kill her and began to choke her again, this time with his two hands. Defendant put so much pressure on her throat that she could not breathe, and she blacked out. She did not know for how long she was unconscious.
Jane Doe II's daughter came to Jane Doe II's room and they yelled at defendant until he exited through the front door. Jane Doe II saw that defendant was holding her purse. Jane Doe II's daughter tried to retrieve the purse, but defendant hit her with the purse and pushed her. The purse fell on the ground during the struggle; Jane Doe II tried to pick it up, but defendant managed to get it.*fn3 Defendant left with the purse, which contained about $700.
Jane Doe II testified she had bruises on her neck from the choking; the bruises remained for about a week. The mobility of her neck was not impaired by the choking. She did not seek medical treatment.
About two weeks after the incident, defendant left Jane Doe II a voice mail message stating, "I see you are not home and this is O'fear. I wouldn't come home tonight because you are gonna die."
I. The Trial Court Did Not Err in Denying Defendant's Faretta Motion*fn4
Defendant contends the trial court erred in denying his pretrial motion to represent himself pursuant to Faretta v. California (1975) 4 ...