P. v. Von Reed
Filed 12/13/12 P. v. Von Reed CA2/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
REGINALD VON REED,
Defendant and Appellant.
B238574
(Los Angeles
County
Super. Ct.
No. BA383185)
APPEAL
from a judgment of the Superior Court
of
County. Leslie A.
Swain, Judge. Affirmed.
Reginald
Von Reed, in pro. per., and John Raphling, under appointment by the Court of
Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
_________________________________
A jury
convicted defendant Reginald Von Reed of stalking
and criminal threats. The trial
court found true allegations that defendant had suffered a prior serious felony
conviction for purposes of the “Three Strikes†law and Penal Code section 667,
subdivision (a)(1), and had served two prior prison terms within the scope of
Penal Code section 667.5, subdivision (b).
It sentenced him to nine years in prison, consisting of a second strike
term of four years for criminal threats, plus a five-year serious felony
enhancement.
Defendant’s
conviction was based on his course of conduct from March 22 to April 5, 2011,
against his former girlfriend (and the mother of his children), Ruby R., who
had broken up with defendant and ejected him from her apartment in October of
2010, then rekindled a relationship with her former boyfriend, Andre. (Undesignated date references pertain to
2011.) On the night of March 21, someone
drove a plant stake through Ruby’s bedroom window. She and Andre boarded up the window. On the morning of March 22, defendant knocked
out the board and threw two or three rocks through the hole in the window. Ruby was angry and afraid, and her mother
called 911. The next day, as Ruby walked
her son to school, defendant ran up and grabbed her mobile phone from her. Later, she found that all four tires on her
car had been flattened. After she
repaired them, she found them flattened again.
Defendant phoned her and admitted flattening the tires “again.†The parties stipulated that two police
officers responded and saw three deflated tires on Ruby’s car.
Defendant
also called Ruby’s mobile phone repeatedly and left numerous messages. Ruby played some of the messages for the
police, who recorded them. The
recordings of these messages were played at defendant’s trial. In one of the messages played for the jury,
defendant said, “Okay, I got yo’ ass, bitch.
Fuck you up, bitch. I’ll fuck yo’
ass up, you fuckin’ bitch!†Ruby was
frightened by this message, which she interpreted as a threat to harm her. Ruby and her children moved into a motel for
10 days. On April 5, she returned to her
apartment to get something and discovered that it had been ransacked. Her sofa had been slashed, and furniture,
windows, her children’s aquarium, and family pictures had been smashed. There was glass and blood everywhere. The police arrested defendant, who had fresh
cuts on one hand and blood on his jeans and shoes. After defendant’s arrest, there were no
further acts of vandalism to Ruby’s car or apartment.
Defendant
filed a timely appeal. We appointed
counsel to represent defendant on appeal.
After examination of the record, counsel filed an opening brief raising
no issues and asking this court to independently review the record. Defendant filed a supplemental brief raising
numerous points, which we now address.
Defendant
argues that numerous witnesses committed perjury, the damage to Ruby’s
apartment was “staged,†he still lived in the apartment and had bills in his
name, the police report does not match unspecified transcripts, he never
received photographs or minute orders, Andre’s and Ruby’s statements to the
police conflicted, a police officer took the case to destroy defendant’s
character and obtain “revenge for womans [sic]
rights,†the prosecutor removed 16 pages from the preliminary hearing
transcript, two voice mails were “not the same as his attorney’s,†he was never
interviewed by law enforcement, and Ruby was coerced into testifying because
she had “other matters with the law†and was in danger of losing her
children. None of these points is
supported by the appellate record.
Defendant
also argues that “no-body could say who took the photo’s†of Ruby’s vandalized
apartment. This is not true; one of the
responding officers testified that Officer Coller took them.
Defendant
also complains that Andre did not testify.
Defendant does not explain why this was error or how such purported
error prejudiced him.
Defendant
argues the trial court erred by failing to instruct the jury on late disclosure
of the voice mail recordings, which the police had apparently forgotten about
and the prosecutor did not know existed.
They were rediscovered and turned over to the defense on September
21. Defendant did not seek a
continuance. Jury selection began on
September 26 and the defense rested on October 5. The court denied defendant’s request to
instruct the jury on the belated disclosure because there was no showing of
prejudice or misconduct by the prosecutor or police. The message upon which the prosecutor relied
as the threat supporting the charges was transcribed in the police report that
the defense had possessed throughout the proceedings. Penal Code section 1054.5, subdivision (b),
permits, but does not require, the trial court to instruct the jury on delayed
disclosure. Under the circumstances of
this case, we cannot say the trial court abused its discretion by declining to
so instruct. In addition, defendant has
failed to show he was prejudiced by the absence of such an instruction.
Defendant
argues the trial court should have given CALJIC instructions on how to evaluate
witnesses’ testimony. The court did not
err. It gave CALCRIM Nos. 226, 315, 316,
and 318.
Defendant
argues his trial attorney rendered ineffective assistance by failing to file a
motion asking the court to instruct upon late disclosure of the voice mail
recordings and by failing to cross-examine witnesses. Neither of these arguments are true. Defendant also argues counsel was ineffective
because he did not claim that the officers committed perjury. Because the record does not support the
perjury claim, it also fails to support this ineffective assistance claim. Defendant also argues his attorney missed a
court appearance and “sent Ms. Baessier [sic]
to stand in for him.†The record reveals
Ms. Baessler represented defendant at the preliminary
hearing only. Thereafter, Mr.
Kitahara was assigned to represent defendant, and no other attorney ever stood
in for him at any time during proceedings in this case.
Defendant
argues that the counts should have been severed because he had not
confessed. No authority supports his
contention.
Defendant argues
there were references to his gang membership.
There were not. He argues there
were references to him not being afraid of police. Ruby made such a statement, but it was
immediately stricken upon defense objection.
He argues he was denied his right to be present “when decisions to
impanel dual juries were discussed and made.â€
There were no such discussions or decisions, and the record reveals no
proceedings were conducted in defendant’s absence.
Defendant
argues that Ruby’s testimony was, without more, insufficient to support his
convictions. Defendant’s convictions
were supported by the testimony of Ruby, Ruby’s mother, Officers Gutierrez and
London (who responded to three 911 calls by Ruby and her mother), the parties’
stipulation regarding the observation of Ruby’s tires by Officers Bracamontes
and Williams, the recordings of the messages defendant left on Ruby’s phone,
and the recordings of 911 calls made by Ruby and her mother. Viewing the evidence in the light most
favorable to the judgment, substantial evidence supports defendant’s criminal
threats and stalking convictions.
Defendant
also argues his “strike prior should have been stayed, due to the fact it was a
25 year old prior and [he] was just a youth.â€
The trial court denied defendant’s motion under People v.
Cal.4th 497, after applying the proper standards and considering all of the
pertinent facts, including the age of the strike prior, which occurred 22 years
before sentencing in this case, and defendant’s lengthy record of convictions
between the strike prior and the current offenses. Defendant had seven misdemeanor convictions
and seven felony convictions in between his strike prior and the current
offenses, with no significant period in which he was free of both custody and
crime. He was on probation at the time
he committed the current offenses. We
further note that the strike prior was a conviction, not a
discretion by concluding defendant did not fall outside the spirit of the Three
Strikes law.
Defendant
also claims his appellate attorney rendered ineffective assistance by failing
to raise the claims defendant set forth in his supplemental brief. None of the claims defendant has raised have
merit, and his appellate attorney was not ineffective for failing to raise
them.
We have
examined the entire record and are satisfied that defendant’s attorney has
fully complied with his responsibilities and that no
v. Kelly (2006) 40 Cal.4th 106, 109–110; People v.
The judgment is affirmed.
NOT TO BE PUBLISHED.
MALLANO, P. J.
We concur:
ROTHSCHILD, J.
CHANEY, J.
