People v. Wade CA1/5

Filed 1/27/14 P. v. Wade CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A137316 v. CLENARD C. WADE, (Contra Costa County Super. Ct. No. 05-080361-9) Defendant and Appellant.

Clenard C. Wade was convicted 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. In an earlier appeal, we reversed the judgment with directions as to the grand theft conviction, remanded on an issue of presentence conduct credits, and otherwise affirmed the judgment. (People v. Wade (2012) 204 Cal.App.4th 1142 (Wade I).) In this second appeal, Wade challenges the trial court’s November 30, 2012 resentencing order. Wade contends the trial court should have ordered a supplemental probation report before resentencing, and that the court should have resentenced him on all counts instead of limiting resentencing to the one count reversed in the first appeal. We affirm. I. BACKGROUND Because this appeal only involves sentencing issues, it is unnecessary to detail the underlying facts. Suffice it to say the judgment of conviction involved Wade’s threats and acts of violence against two victims, Jane Doe I and Jane Doe II. The judgment of

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conviction resulted in an initial sentence of 33 years eight months to life, consisting of a term of 25 years to life on count 15 (false imprisonment by violence, Pen. Code, §§ 236, 237, subd. (a)),1 concurrent terms of 25 years to life on count 2 (battery causing serious bodily injury, §§ 242, 243, subd. (d)) and count 8 (criminal threats, § 422), a concurrent term of three years on count 10 (assault by force likely to cause great bodily injury, § 245, subd. (a)(1)), a consecutive term of eight months on count 1 (grand theft, § 487), and eight additional years on four enhancements. (Wade I, supra, 204 Cal.App.4th at pp. 1145–1146.) As pertinent here, Wade’s first appeal resulted in the reversal of his grand theft conviction (§ 487). (Wade I, supra, 204 Cal.App.4th at pp. 1150–1153.) Our disposition states: “The judgment on count 1 is reversed with directions as follows: If the People do not bring the defendant to trial within 60 days after the filing of the remittitur in the trial court pursuant to section 1382, the trial court shall proceed as if the remittitur constituted a modification of the judgment to reflect a conviction of petty theft (§§ 484, 488) and shall resentence the defendant accordingly, including the determination of presentence conduct credits. [Citation.] Following resentencing, the trial court is directed to send an amended abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.” (Id. at p. 1153.) The People apparently elected not to retry Wade on count 1. At the November 30, 2012 resentencing hearing, defense counsel asserted that this court’s disposition in Wade I entitled Wade to resentencing on all counts. Counsel indicated his intent to ask the trial court to strike one or more strikes and to impose a sentence without a life term. Counsel further insisted that Wade was entitled to a supplemental probation report under California Rules of Court, rule 4.411,2 and requested that the court direct the probation department to conduct an investigation into Wade’s behavior and performance in prison during the three years subsequent to the original sentencing. Defense counsel made an