P. v. Reed



















Filed 9/15/10 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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, v. JERMEL DEAN REED, Defendant and Appellant.

E049356 (Super.Ct.No. FSB704096) OPINION

APPEAL
from the Superior Court
of San
Bernardino County.
Ronald M. Christianson, Judge.
Affirmed.

Stephen
S. Buckley, under appointment by the Court of Appeal, for Defendant and
Appellant.

Edmund
G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Daniel Rogers and Raymond
M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.

A
jury convicted defendant Jermel Dean Reed of sodomy by force or fear (count
2--Pen. Code, § 286, subd. (c)(2)).^[1] The trial court sentenced defendant to eight
years' incarceration with total accumulated credits of 824 days. On appeal, defendant raises three
issues: (1) the court erred in denying
his motion for new trial based upon
alleged juror misconduct; (2) the court erred in failing to give a sua sponte jury instruction on battery
as a lesser included offense of sodomy; and (3) the court erred in imposing the
upper term of incarceration based on factors not determined by the jury. We affirm the judgment.

>FACTUAL AND PROCEDURAL HISTORY

The
victim knew codefendant Gerald Thomas^[2] since they were in high school together. They had regained contact through an internet
social networking site. They had
exchanged several messages over that site during the previous months. On September
25, 2007, the victim received a message from Thomas asking her if
she wanted to hang out. Around 10:00 p.m. she received a call from Thomas
telling her to come over; she immediately drove to his location.

Thomas
met the victim outside and guided her to an apartment. Two other men whom she had never met before
were inside. Thomas introduced her; one
of them was defendant.

At
some point that evening, the victim left the apartment with Thomas to buy some
liquor. They purchased a bottle of
brandy. When they returned to the
apartment, everybody started drinking and talking. They finished drinking the bottle within an
hour and a half. Thereafter, Thomas went
into the bedroom, lay down on the bed, and went to sleep.

The
victim was beginning to feel really drunk.
She decided she should go home since she did not know the other two
men. The victim went into the bedroom;
she sat on the bed to talk to Thomas.
The victim started â€