People v. Selu CA1/5 ( 2021 )

Filed 4/1/21 P. v. Selu CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A159356
v.
WAYNE SELU, JR., (San Mateo County
Super. Ct. No. 18NF000489)
Defendant and Appellant.
Wayne Selu Jr. appeals from the judgment imposed after a jury
convicted him of felony false imprisonment (Pen. Code § 236)1 and making
criminal threats (§ 422, subd. (a)). The jury also found he used a deadly or
dangerous weapon (§ 12022, subd. (b)(1)) in committing those offenses. Selu’s
appointed appellate counsel has filed a brief pursuant to People v. Wende
(1979) 25 Cal.3d 436. Our independent review of the record reveals a clerical
error in the abstract of judgment but no other arguable issues. We affirm.
1
Undesignated statutory references are to the Penal Code.
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BACKGROUND
A.
Kathryn Doe and Selu dated between 2002 and 2004 and then again in
2014 through 2018. Doe first tried to end their relationship in April 2004. At
Selu’s request, they met to talk. Doe brought her five-year-old daughter.
Selu grabbed Doe’s sweater by the collar and forced her to sit, while he
stood above her. Holding a knife in his hand, Selu said something like, “what
if I just cut your fucking throat[?]” After Doe told Selu that she hated him, he
stabbed her 24 times—in her face, neck, shoulder, hands, and wrists. As a
result, Doe was in the hospital for eight days, suffered a permanent eye
injury, and has multiple scars, including one that runs down her neck from
her left ear.
In 2005, Selu was convicted of attempted voluntary manslaughter
(§§ 192, subd. (a), 664), mayhem (§ 203), felony infliction of corporal injury on
a cohabitant (§ 273.5, subd. (a)), and assault with a deadly weapon (§ 245,
subd. (a)(1)).
B.
Two years later, Doe began visiting Selu in prison—attempting to
understand his actions. Their visits became friendlier and, eventually, Doe
forgave him. When Selu was released from prison in 2014, he contacted Doe
and they reestablished a romantic relationship.
One evening in January 2018, Selu’s car broke down and Doe met him
in a parking lot to help. When she arrived, Selu was already angry. Doe
stood on the passenger side of his car, while Selu sat in the driver’s seat. He
was holding something that looked like a large pastry cutter, but with a thin
razor at the end of its curved top. Selu told Doe that he “would slice [her]
throat with it.” He made slices in the dashboard with the tool and told Doe
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he “would murder [her] . . . in cold blood.” Given Selu’s previous attempt to
kill her, Doe believed him.
A police officer heard a man yelling and asked if Selu was yelling at
Doe. Selu said he was yelling at voices in his head. Doe said she was
“absolutely fine.” Doe explained that, at the time the officer intervened, she
was afraid of further angering Selu.
At some point after the police officer left, Selu also threatened to “burn
[Doe’s] children alive.” Again, she believed he would carry through on these
threats because of his acts in 2004.
Selu then tried, unsuccessfully, to start his car, using a pry bar that
looked like a “giant oversized screwdriver.” He pointed the pry bar at Doe’s
neck and told her that “he would jab it through [her] throat.” Doe was afraid
because of what happened in 2004 and because Selu was so angry. She took
a few steps away from the car, but Selu told her, “don’t try to run ‘cause I’ll
catch you.”
Selu’s friend, Gary, arrived and described an ongoing “altercation”
between Selu and Doe. Selu was yelling at Doe, as well as at others Gary
could not see. He had seen Selu doing this before—yelling “at nothing, like
somebody in the shadows.”
Doe was pleading with Selu to calm down and to let her go home. Selu
said she could leave when he said so. Selu, who stands about 6’2” tall and
weighs around 400 pounds, also approached her, while bouncing the pry bar
back and forth in his hand. He backed her into a space between their two
cars and a fence. Although Doe wanted to leave, she believed she could not.
Gary believed that Selu was threatening Doe with the pry bar and that this
was “an emergency.” Selu remained standing in front of Doe, with the pry
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bar in his hands, for the next five to 10 minutes while she pleaded with him
to stop.
In response to Doe’s request for help, Gary tried to distract Selu with
the car. Eventually, Selu put the pry bar down and told Doe to go home. Doe
did not call the police that night, after she left, because she remained afraid
that Selu would not be arrested and would only retaliate. After enduring a
week of threatening phone calls from Selu, from phone numbers she did not
recognize, Doe contacted the police and obtained a restraining order.
C.
The defense did not present any evidence and argued the People had
not proved their case beyond a reasonable doubt.
After the jury reached its verdicts, the trial court found “true” that Selu
suffered four prior serious or violent felony convictions, within the meaning of
the three strikes law (§§ 667, 1170.12). The trial court also denied Selu’s
motion to strike his prior strike convictions, pursuant to People v. Superior
Court (Romero) (1996) 13 Cal.4th 497.
Sentencing Selu pursuant to section 1170.12, subdivision (c)(1), the
trial court imposed an aggregate prison term of 13 years and 8 months. Selu
received 1,412 total days’ credit (706 actual days and 706 conduct credits) for
time served.
The trial court imposed a $300 restitution fine (§ 1202.4, subd. (b)), two
$40 court operations assessments (§ 1465.8, subd. (a)(1)) and two $30
conviction assessments (Gov. Code, § 70373, subd. (a)(1)). A $300 parole-
revocation restitution fine (§ 1202.45) was also imposed but suspended.
Although the trial court did not orally pronounce imposition of a 10 percent
($30) administrative fee on the restitution fine, the court clerk nonetheless
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added such a fee to the abstract of judgment (presumably pursuant to section
1202.4, subd. (l)).
DISCUSSION
Selu’s appointed appellate counsel advised him, as required by People
v. Kelly (2006) 40 Cal.4th 106, 124, of his right to file a supplemental brief to
bring to this court’s attention any issue he believes deserves review. Selu has
not filed such a brief. We have independently reviewed the entire record and
identified no arguable issues that would result in a disposition more
favorable to Selu.
The trial court erred in instructing the jury, regarding the weapon
enhancement, with an unmodified version of CALCRIM No. 3145. (People v.
Aledamat (2019) 8 Cal.5th 1, 6, 8 (Aledamat).) The court instructed, in
relevant part: “A deadly or dangerous weapon is any object, instrument, or
weapon that is inherently deadly or dangerous or one that is used in such a
way that it is capable of causing and likely to cause death or great bodily
injury. [¶] In deciding whether an object is a deadly or dangerous weapon,
consider all the surrounding circumstances, including when and where the
object was possessed, where the person who possessed the object was going,
and any other evidence that indicates whether the object would be used for a
dangerous rather than a harmless purpose.” (Italics added.) However,
“[o]nly a few items that are designed to be used as deadly weapons are
inherently deadly.” (Id. at p. 8.) Objects like box cutters, pry bars, and
screwdrivers are not inherently deadly or dangerous as a matter of law
because they are designed for innocent uses. (See id. at pp. 6, 14.)
Here, the instructional error was harmless beyond a reasonable doubt.
(See Aledamat, supra, 8 Cal.5th at p. 13.) The jury was unlikely to consider a
pry bar or screwdriver inherently deadly or dangerous, even in a lay sense.
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The prosecutor argued only the proper alternative—that Selu used the pry
bar in a way that was capable of causing and likely to cause death or great
bodily injury. And the defense did not contest that point. Our Supreme
Court has held that the same error was harmless beyond a reasonable doubt
on less compelling facts. (See Aledamat, supra, at pp. 4-6, 8, 13-14
[prosecutor argued box cutter was an “inherently deadly weapon”].)
The abstract of judgment must be corrected to delete the ten percent
($30) administrative fee (§ 1202.4, subd. (l)) added to the restitution fine.
The trial court did not impose this fee in its orally pronounced judgment. In
the case of a discrepancy, the trial court’s oral pronouncement of judgment
controls over the minutes or abstract of judgment. (People v. Mesa (1975) 14
Cal.3d 466, 471; People v. Zackery (2007) 147 Cal.App.4th 380, 385.) We will
order the abstract of judgment corrected to reflect the trial court’s judgment.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an
amended abstract of judgment that deletes the 10 percent administrative fee
($30), which was added to the $300 restitution fine. The trial court is further
directed to forward a certified copy of the amended abstract of judgment to
the Department of Corrections and Rehabilitation.
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_______________________
BURNS, J.
We concur:
____________________________
NEEDHAM, ACTING P.J.
____________________________
RODRIGUEZ, J.*
A159356
* Judge of the Superior Court of Alameda County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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