Filed 5/21/14 P. v. Reed CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059705

v.                                                                       (Super.Ct.No. RIF1300690)

GUY DAVID REED,                                                          OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Richard Todd Fields,

Judge. Affirmed.

         John L. Dodd, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         A jury found defendant and appellant Guy David Reed guilty of assault by means

of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count 1);1

         1   All future statutory references are to the Penal Code unless otherwise stated.


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battery inflicting serious bodily injury (§ 243, subd. (d); count 2); and criminal threats

(§ 422; count 3). The jury also found true that during the commission of count 1,

defendant personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)).

In a bifurcated proceeding, defendant admitted that he had suffered three prior prison

terms (§ 667.5, subd. (b)), one prior serious felony conviction (§ 667, subd. (a)), and one

prior serious and violent felony strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12,

subd. (c)(1)). Defendant was sentenced to a total term of 16 years in state prison with

credit for time served. Defendant appeals from the judgment. We find no error and will

affirm the judgment.

                                              I

                   FACTUAL AND PROCEDURAL BACKGROUND

       On January 27, 2013, an altercation ensued between defendant and the victim,

both homeless, inside a McDonald’s restaurant in the city of Corona when the victim

refused to give defendant money to buy a soda. During the altercation, defendant told the

victim, “‘I’m going to kick your ass.’” The victim left the McDonald’s and walked

across the street. Defendant followed the victim with a knife in his hand. Scared, the

victim walked to the entrance of the Stater Bros. grocery store and stopped.

       Defendant followed the victim, walked by him, and said, “‘Fuck you. I’ll fuck

you up. I’ll kill you.’” The victim did not see the knife on defendant at that time, but the

victim feared that defendant would hurt him. Defendant walked past the victim, but the

victim followed him because the victim was frustrated with defendant for threatening



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him. As the victim approached defendant, he told defendant “‘F you.’” Defendant

stopped, got into a boxing stance with his arms up and fists closed, and said, “I’m going

to fuck you up.” The victim put his hand out in front of him with his palm open and

asked defendant, “What the fuck is wrong? Why is this happening?” Defendant then put

the victim in a choke hold and punched the victim in the head, leaving the victim in a

daze. Defendant then smashed the victim’s head into the side of the building.

       Several witnesses observed defendant and the victim arguing and fighting near the

entrance of the Stater Bros. grocery store. One of the witnesses testified that the victim

walked over toward defendant, saying “Let’s fight.” Some hand gestures were then

exchanged; defendant took off his jacket; and the two began fighting. Another witness

testified that he saw defendant take the first swing at the victim—a straight jab with a

closed fist. Both of the witnesses stated that they saw defendant slam the victim’s head

into the concrete wall several times and that they heard the sound of the victim’s head

making contact with the wall. One of the witnesses attempted to stop the fight.

Defendant eventually stopped after the witness said the police were coming.

       The victim was bleeding profusely and one of the witnesses wrapped his shirt

around defendant’s head. After the witness alerted Stater Bros. personnel of the situation,

an employee called 911.




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       As defendant left the scene, the other witness followed defendant. The witness

saw defendant holding a box cutter pointing downwards in defendant’s left hand. At this

point, the witness stopped following defendant. Defendant never turned around or

threatened the witness.

       Officers arrived at the scene and saw blood splatter on the sidewalk and on the

wall. The victim was transported to a hospital in an ambulance. At the hospital, the

victim was still bleeding from his head. An officer observed that the victim appeared

intoxicated and had an odor of alcohol on his breath. The victim had a two-and-a-half

inch laceration on his forehead and his skull was visible. The victim required two layers

of stitches—about five deep stitches and 20 to 30 on the skin.

       Corporal Ryan Brett of the Corona Police Department located defendant standing

outside the McDonald’s restaurant with a box cutter in his hand. Defendant appeared

“worked up or very excited.” Corporal Brett told defendant to put down the box cutter;

after questioning why, defendant put the box cutter down. Corporal Brett asked

defendant for his identification and if he was involved with the incident at Stater Bros.

Defendant replied that he “had some involvement.”

       Corporal Daniel Hackett of the Corona Police Department interviewed defendant.

Defendant appeared agitated and was angry and upset at the victim, and at the witnesses

for playing cops. Defendant claimed that the victim had been harassing him all day, and

that he (defendant) had taken the first swing, but that neither he nor the victim had hit

each other. Defendant stated that while in the headlock, he and the victim tripped and fell



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into the wall. Defendant did not state that he was defending himself or that he was afraid

of the victim.

       On July 1, 2013, an amended information was filed charging defendant with

one count of assault by means of force likely to produce great bodily injury (§ 245,

subd. (a)(4); count 1); battery inflicting serious bodily injury (§ 243, subd. (d); count 2);

criminal threats (§ 422; count 3); attempted robbery (§§ 664/211; count 4); and exhibiting

a deadly weapon other than a firearm (§ 417, subd. (a)). The amended information

further alleged that during the commission of count 1, defendant personally inflicted

great bodily injury upon the victim (§ 12022.7, subd. (a)). The amended information also

alleged that defendant had sustained three prior prison terms (§ 667.5, subd. (b)), one

prior serious felony conviction (§ 667, subd. (a)), and one prior serious and violent felony

strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).

       The jury trial began on July 10, 2013. After the prosecution rested, the trial court

granted defendant’s section 1118.1 motion to dismiss counts 4 and 5. At the conclusion

of trial on July 19, 2013, the jury found defendant guilty of counts 1, 2 and 3. The jury

also found true that during the commission of count 1, defendant personally inflicted

great bodily injury. In a bifurcated proceeding, defendant admitted that he had suffered

three prior prison terms, one prior serious felony conviction, and one prior strike

conviction.




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       On September 6, 2013, the trial court sentenced defendant to a total term of 16

years in state prison with credit of 256 days for time served as follows: the upper term of

eight years for count 1, plus a consecutive three years for the great bodily injury

enhancement, plus a consecutive five years for the prior serious felony conviction; the

upper term of eight years on count 2 and the upper term of six years on count 3 were

stayed pursuant to section 654; and the court struck the three prior prison term

enhancements under section 1385. Defendant appeals from the judgment.

                                             II

                                       DISCUSSION

       We appointed counsel to represent defendant on appeal. After examination of the

record, counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d

436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a

summary of the facts and potential arguable issues, and requesting this court conduct an

independent review of the record.

       We offered defendant an opportunity to file a personal supplemental brief, and he

has not done so.

       Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

independently reviewed the record for potential error and find no arguable issues.




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                                     III

                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                               RAMIREZ
                                                         P. J.
We concur:



HOLLENHORST
                       J.



MILLER
                       J.




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