People v. Wade

• Citation: 139 Cal.Rptr.3d 529,204 Cal.App.4th 1142,12 Cal. Daily Op. Serv. 3897
• Decision Date: 09 April 2012
• Docket Number: No. A126393.,A126393.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Clenard Cebron WADE, Defendant and Appellant.

12 Cal. Daily Op. Serv. 3897

139 Cal.Rptr.3d 529

204 Cal.App.4th 1142

The PEOPLE, Plaintiff and Respondent,

v.Clenard Cebron WADE, Defendant and Appellant.

No. A126393.

Court of Appeal, First District, Division 5, California.

April 9, 2012.Certified for Partial Publication.*As Modified on Denial of Rehearing May 8, 2012.

Walter K. Pyle, Berkeley, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Catherine A. Rivlin and Allan Yannow, Deputy Attorneys General, for Plaintiff and Respondent.

SIMONS, J.

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) ¹ 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.

II. The Trial Court's Instruction on Battery with Serious Bodily Injury Was Proper

Defendant contends the evidence does not support the finding that the battery committed against Jane Doe II resulted in serious bodily injury, because there was no evidence that the injury required medical treatment. Although defendant presents his claim as a challenge to the sufficiency of the evidence, we construe it as one of instructional error, and conclude the trial court's instruction on serious bodily injury was proper. (See People v. Gaio (2000) 81 Cal.App.4th 919, 922, 97 Cal.Rptr.2d 392 [rejecting claims of instructional error and insufficiency of the evidence based on same misinterpretation of statutory requirements].)

A battery is “any willful and unlawful use of force or violence upon the person of another.” (§ 242.) “If, however, the batterer not only uses unlawful force upon the victim but causes injury of sufficient seriousness, then a felony battery is committed. For this second category of battery, ‘serious bodily injury’ is required. (§ 243, subd. (d).)” ( People v. Longoria (1995) 34 Cal.App.4th 12, 16, 40 Cal.Rptr.2d 213 ( Longoria ).) The statute provides that “ ‘Serious bodily injury’ means a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.” (§ 243, subd. (f)(4).) Section 243 also prescribes enhanced punishment for batteries against peace officers and other specified persons. “If what would otherwise be a simple battery (any unlawful touching, even without causing pain or injury) is committed against, e.g., a peace officer engaged in the performance of his/her duties, then the offense is punishable by one year in county jail and a $2,000 fine.” ( Longoria, at p. 16, 40 Cal.Rptr.2d 213; see § 243, subd. (b).) “Similarly, a distinction is made when it is a peace officer” or another specified person “who is injured by a batterer. Unlike the ordinary victim, for enhanced punishment to be imposed ‘serious bodily injury’ is not required. Section 243, subdivision (c) provides that a battery against a peace officer engaged in the performance of his/her duties is punishable by a $2,000 fine and three years in state prison when ‘an injury is inflicted on that victim.’ ” ( Longoria, at pp. 16–17, 40 Cal.Rptr.2d 213, first italics added; see also People v. Wilkinson (2004) 33 Cal.4th 821, 831, 16 Cal.Rptr.3d 420, 94 P.3d 551.) The statute provides that “ ‘Injury’ means any physical injury which requires professional medical treatment.” (§ 243, subd. (f)(5).)

In the present case, defendant argues that both the section 243, subdivision (f)(4) and (f)(5) definitions must be satisfied in order to show the “serious bodily injury” required to sustain a conviction for felony battery under section 243, subdivision (d). That is, he argues that, because the word “injury” is part of the phrase “serious bodily injury,” the injury suffered by the victim must both require medical treatment (§ 243, subd. (f)(5)) and also constitute serious impairment of a physical condition (§ 243, subd. (f)(4)). The instruction given by the trial court, CALCRIM No. 925, did not require a finding of necessity of medical treatment: “Whether a particular injury qualifies as a ‘serious bodily injury’ is a matter for the jury to determine. You must evaluate the nature, extent, and seriousness of any injury when considering this question. To find an injury to be a ‘serious bodily injury,’ you must find that the injury caused a serious impairment of physical condition. Such an injury may include, but is not limited to, loss of consciousness. While a loss of consciousness may qualify as serious bodily injury, whether it so qualifies in this case is a matter for the jury to determine.” If defendant's interpretation of the statute is correct, the trial court's instruction was erroneous, because “The trial court must instruct even without request on the general principles of law relevant to and governing the case. [Citation.] That obligation includes instructions on all of the elements of a charged offense. [Citation.]” ( People v. Cummings (1993) 4 Cal.4th 1233, 1311, 18 Cal.Rptr.2d 796, 850 P.2d 1.) Under defendant's interpretation of the statute, an injury requiring medical treatment is an element of the offense of battery with serious bodily injury.

To resolve whether defendant's interpretation of section 243 is correct, we are guided by familiar canons of statutory construction. “ ‘[I]n construing a statute, a court [must] ascertain the intent of the Legislature so as to effectuate the purpose of the law.’ [Citation.] In determining that intent, we first examine the words of the respective statutes: ‘If there is no ambiguity in the language of the statute, “then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.” [Citation.] “Where the statute is clear, courts will not ‘interpret away clear language in favor of an ambiguity that does not exist.’ [Citation.]” ' [Citation.] If, however, the terms of a statute provide no definitive answer, then courts may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. [Citation.] ‘We must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.’ [Citation.]” ( People v. Coronado (1995) 12 Cal.4th 145, 151, 48 Cal.Rptr.2d 77, 906 P.2d 1232.)

We conclude that the plain language of section 243, subdivision (f)(4) controls. That is, a loss of consciousness that constitutes a “serious impairment of physical condition” is a “serious bodily injury” without any showing that the injury required medical treatment. If the Legislature had intended that “serious bodily injury” means a “serious impairment of physical condition” that also required medical treatment, it could have so provided. The separate definition of “injury” in subdivision (f)(5) does not render ambiguous the clear language of subdivision (f)(4), because subdivision (f)(5) clearly applies to section 243, subdivision (c), for batteries against peace officers or other specified persons causing “injury.” Accordingly, applying the plain language of subdivision (f)(4) does not, contrary to defendant's assertion, make the definition of “injury” in subdivision (f)(5) surplusage. (See In re Jerry R. (1994) 29 Cal.App.4th 1432, 1437, 35 Cal.Rptr.2d 155 [“Whenever possible, we must give effect to every word in a statute and avoid a construction making a statutory term surplusage or meaningless. [Citations.]”].) ³

PROCEDURAL BACKGROUND

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...