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Filed 4/1/21 P. v. Selu 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

WAYNE SELU, JR.,

Defendant and Appellant.

 A159356

 (San Mateo County

 Super. Ct. No. 18NF000489)

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 parolerevocation 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.