People v. Reed CA3

Opinion

Filed 8/20/26 P. v. Reed CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento)

THE PEOPLE, C103571 Plaintiff and Respondent, (Super. Ct. No. 23FE019734) v. FREDERICK VINCESON REED, Defendant and Appellant.

In July 2023, defendant Frederick Vinceson Reed got into an altercation with the victim E.P. outside a homeless shelter where both men were staying. A jury found Reed guilty of simple battery and assault by means of force likely to produce great bodily injury, and he was sentenced to two years in prison. Reed’s appointed counsel asked this court to independently review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Reed filed a supplemental brief alleging several trial and evidentiary errors. Having reviewed the record, we find no merit to Reed’s contentions. However, we conclude the trial court erred in orally reciting the total amount of custody credits to which he is entitled and erred regarding the restitution fines imposed. Accordingly, we shall modify the judgment to award 196 days of custody credit and impose and stay a 1 $450 parole revocation restitution fine to match the total restitution fine imposed by the trial court. We find no other arguable error that would result in an outcome more favorable to Reed and affirm the judgment as modified. BACKGROUND In March 2025, an amended information charged Reed with battery resulting in serious bodily injury (Pen. Code, § 243, subd. (d); count one)1 and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count two). Two aggravating circumstances were also alleged. (Cal. Rules of Court, rule 4.421(a)(1) [crime involved great violence], (b)(3) [prior prison term].) The trial court granted Reed’s request to bifurcate the aggravating factors. Prior to trial, Reed filed a motion in limine pursuant to Evidence Code section 1103 to introduce four instances of E.P.’s character for violence, including: (1) a May 2015 domestic violence incident where E.P. pushed a woman in the shoulder at a mall; (2) an October 2016 incident where E.P. hit a man with a metal bat and kicked him in the face; (3) a May 2017 incident where E.P. made multiple threats to a Solano County sheriff’s officer while E.P. was incarcerated at the Solano County jail; and (4) a January 2021 incident where E.P. jumped on top of a man, strangled him, and threatened to kill him. The trial court ruled the May 2015 and October 2016 incidents were admissible, but excluded the remaining two incidents after finding they were more prejudicial than probative under Evidence Code section 352. At trial, E.P. testified that on July 10, 2023, he lived in a Sacramento homeless shelter and got into an altercation with Reed, whom he did not know. While E.P. ate in the shelter’s dining hall, Reed stood behind him and started harassing and threatening him, telling E.P. he was “gonna fuck [him] up.” E.P. told Reed, “[i]f it’s that serious, you 1 Undesignated statutory references are to the Penal Code.

2 can see me up the hill and back it up.” Reed agreed. E.P. removed his shirt and walked to the hill, which was located about a block from the shelter, and Reed followed a few minutes later. Once there, they exchanged more words but did not physically fight. Reed called someone, and E.P. returned to the shelter as Reed followed. After returning to the shelter, E.P. walked outside to his car to get his shirt. As E.P. walked back from his car toward the shelter’s driveway, Reed walked toward E.P. and their paths crossed near the end of the driveway. The two men exchanged more words and Reed punched E.P. in the face. Reed repeatedly struck E.P. as he tried to get away. Reed continued to pursue E.P. while hitting him in the body; E.P. eventually grabbed Reed’s legs and they fell to the ground. E.P. got on top of Reed, but an individual, later identified as Reed’s son, pushed E.P. off Reed and the altercation ceased. E.P. was bleeding extensively and believed his nose was broken; he returned to the shelter to seek medical attention. E.P. went to the hospital where he was diagnosed with “multiple facial fractures”; he had surgery on his nose a month later as a result of the attack. He also had pain on his left side from Reed hitting him in the body. E.P. admitted that during the incident he had a knife clipped in his pocket. Although the clip was visible, the knife was not, and E.P. never removed the knife or threatened Reed with it. Video surveillance cameras located outside the shelter captured Reed striking E.P. at the end of the driveway and the assault that followed. The video, which had no audio, was admitted at trial and shown to the jury. During the second day of trial, Reed moved to relieve his appointed counsel under People v. Marsden (1970) 2 Cal.3d 118. He complained that counsel had not subpoenaed several witnesses seen in the surveillance video and failed to present police body camera footage showing E.P. correcting certain inaccuracies contained in the officer’s report. Defense counsel explained tactical reasons for not calling each of the witnesses, including that several said they had not seen anything and that at least two other 3 witnesses’ statements claiming E.P. had swung at Reed conflicted with the surveillance video, which she believed would undermine Reed’s case. Counsel had also reviewed the body camera footage and agreed that the officer’s initial report contained inaccuracies that were properly corrected. After considering Reed’s complaints and defense counsel’s responses, the court denied the Marsden motion. The court found counsel had made reasonable strategic trial decisions and had adequately represented Reed. Trial proceeded and Reed testified on his own behalf. He claimed E.P. was the aggressor who tried to fight him after E.P. threatened him multiple times. Reed thought E.P. had a weapon, although he admitted he did not see a weapon and E.P. never threatened him with one. Reed walked back to the shelter after they met on the hill and E.P. followed him, calling him a coward. Later, Reed went outside the shelter to meet his son. Reed spotted E.P. outside near his car on the street; E.P. began to threaten him again and began walking towards Reed. Reed was “pretty much afraid of the guy,” and punched E.P. multiple times when they crossed paths because he did not want to give E.P. the opportunity to hurt him. Following deliberations, the jury found Reed not guilty of battery causing serious bodily injury (§ 243, subd. (d); count one) but guilty of simple battery (§ 242) as a lesser included offense and guilty of assault with force likely to produce great bodily injury (§ 245, subd. (a)(4); count two). In a bifurcated court trial, the trial court found both aggravating factors true. The trial court sentenced Reed to the low term of two years in prison for the assault offense and 180 days in the county jail for the misdemeanor battery, which it stayed under section 654. The court orally awarded 98 days of actual credit plus 98 days of conduct credit but calculated the total credit amount as 180 days of credit. The abstract of judgment lists the total credit amount as 196 days. The court imposed a $300 restitution fine (§ 1202.4) for count two, an identical parole revocation restitution fine, stayed pending successful completion of parole (§ 1202.45), and a $150 restitution fine 4 (§ 1202.4) for the misdemeanor simple battery in count one. The court also imposed an $80 court operations assessment (§ 1465.8) and a $60 court facilities assessment (Gov. Code, § 70373); all other fines and fees were waived. The court reserved jurisdiction to determine direct victim restitution. Reed timely appealed. DISCUSSION Reed’s counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Reed was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief, and filed a supplemental brief raising numerous alleged errors. Reed first argues his public defender provided ineffective assistance because she failed to call two “character witnesses.” Reed, however, does not identify the “character witnesses” or explain what evidence or information such unidentified witnesses might have provided that would have resulted in a more favorable outcome. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218 [to establish ineffective assistance of counsel, a defendant must show by a preponderance of the evidence that his counsel’s representation fell below the standard of a competent advocate and a reasonable probability exists that, but for counsel’s errors, the result would have been different].) To the extent Reed argues that counsel should have called various people from the surveillance video, defense counsel explained during the Marsden hearing her tactical reasons for not calling those witnesses. Several said they had not seen anything, and the others’ descriptions of the events contradicted the video surveillance showing the incident. Counsel could rationally believe calling those persons as witnesses would be more detrimental than helpful to Reed’s case. The decision to call various witnesses is a matter of trial strategy and nothing on this record supports second guessing counsel’s reasonable tactical decisions. (People v. Carrasco (2014) 59 Cal.4th 924, 989 [“[t]he 5 decision whether to call certain witnesses is a ‘matter[] of trial tactics and strategy which a reviewing court generally may not second-guess’ ”].) Reed next contends defense counsel should have called the arresting officers as witnesses. He seems to assert he was not initially charged with a crime because the officers determined he and E.P. engaged in mutual combat. It was only after the district attorney’s office received E.P.’s medical records that it decided to charge him. While it may or may not be true that the arresting officers found the parties engaged in mutual combat, “[i]t is well settled that the prosecuting authorities, exercising executive functions, ordinarily have the sole discretion to determine whom to charge with public offenses and what charges to bring.” (People v. Birks (1998) 19 Cal.4th 108, 134.) The prosecution’s authority to charge is founded upon the principle of separation of powers and generally is not subject to supervision by the judicial branch. (Ibid.) Reed asserts the evidence against him was insufficient because E.P. allegedly lied during his testimony about having a weapon or putting something in his car, E.P. was not credible, and it was E.P.’s word against his own. Reed bears the burden to show the evidence was insufficient to sustain his convictions. (People v. Paredes (2021) 61 Cal.App.5th 858, 863.) In determining the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment and we do not reevaluate witness credibility or reweigh evidence. (People v. Brooks (2017) 3 Cal.5th 1, 57; People v. Brown (2014) 59 Cal.4th 86, 106.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence [i.e., evidence that is reasonable, credible, and of solid value] to support” ’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357; Brooks, at p. 57.)

6 Here, Reed failed to meet his burden to show the evidence was insufficient to sustain the assault and battery convictions. (People v. Zamudio, supra, 43 Cal.4th at p. 357.) E.P. admitted that he had a knife in his pocket, which he never took out, and Reed conceded he never saw a weapon nor did E.P. ever threaten him with a weapon during the incident. Thus, their testimony did not conflict regarding the weapon, and the jury reasonably could have inferred that Reed was unaware E.P. had the knife in his pocket throughout their encounter. And we fail to see how whether E.P. lied about putting something in his car would have affected the outcome at trial or the jury’s rejection of Reed’s self-defense claim. The jury heard from both Reed and E.P. and saw the assault on video, and they alone could judge the credibility of the witnesses and evidence. That they believed E.P. over Reed does not mean insufficient evidence supports his assault and simple battery convictions. Reed also argues that the police reports showed his innocence and implies they should have been admitted at trial. Police reports and related witness statements collected by police are hearsay because they were created out of court and are offered for the truth of the matter asserted in the report. (Evid. Code, §§ 1200, subd. (a) [hearsay is an out-of-court statement offered to prove that its assertion is true], 1201 [multiple hearsay admissible only if each hearsay statement is admissible under hearsay exception]; see also People v. McVey (2018) 24 Cal.App.5th 405, 415 [in general, “police reports do not fall under the business records exception” to the hearsay rule and are inadmissible].) Reed has identified no exception to the hearsay rule that would have permitted admission of the police reports, and any statements contained therein, for their truth. Reed also complains that his trial was unfair because the video surveillance did not show the jury what occurred in the 45 minutes that led up to the assault. While it may be true that the jury viewed an excerpt of the total video surveillance, both Reed and E.P. testified about what occurred in the build-up to the incident and their testimony was largely consistent. Thus, the jury was made aware of the events leading up to Reed 7 punching E.P. in the face, even if the previous 45 minutes of surveillance video was not introduced at trial. After reviewing the record, we have determined the trial court erred in pronouncing judgment regarding custody credits and the parole revocation restitution fine. As previously noted, the trial court awarded Reed 98 days of actual credit and 98 days of conduct credit (§ 4019), but made a mathematical error in announcing Reed’s total credit as 180 days rather than 196 days. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [judgment is the trial court’s oral pronouncement of judgment; an abstract of judgment is not the judgment of conviction and does not control if different from the trial court’s oral pronouncement of judgment].) We shall modify the judgment to award Reed 196 days of custody credit. Because the abstract of judgment already reflects the proper total of 196 days, it need not be corrected regarding custody credits. The court also imposed a total restitution fine of $450 ($300 for the felony assault and $150 for the misdemeanor battery) under section 1202.4, subdivision (b), but only imposed a $300 parole revocation restitution fine under section 1202.45. These amounts must be identical. Accordingly, we shall modify the judgment to impose a $450 parole revocation restitution fine, which is stayed pending successful completion of parole. We find no other arguable error that would result in an outcome more favorable to Reed. DISPOSITION Reed’s convictions are affirmed. The judgment is modified to award Reed 196 days of custody credit and to impose a $450 parole revocation restitution fine, which is stayed pending successful completion of parole. The clerk of the trial court shall prepare an amended abstract of judgment that lists a $450 restitution fine (§ 1202.4) and a stayed 8 $450 parole revocation restitution fine (§ 1202.45), and shall forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.

/s/ BOULWARE EURIE, J.

We concur:

/s/ EARL, P. J.

/s/ MESIWALA, J.