People v. Reed CA1/1

Filed 6/29/15 P. v. Reed CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A139727 v. MARSHALL REED, JR., (Humboldt County Super. Ct. No. CR1201535) Defendant and Appellant.

Defendant Marshall Reed, Jr., appeals from a conviction, following trial to the court, of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))1 while personally inflicting great bodily injury (§ 12022.7). Defendant was sentenced to a total of six years in state prison. We conclude defendant’s conviction is supported by substantial evidence and therefore affirm the judgment. However, we direct the trial court to modify the abstract of judgment to reflect the correct amount of presentencing credits. BACKGROUND A two-count information charged defendant with attempted murder and assault with a deadly weapon. Each count included the special allegation under section 12022.7, subdivision (a), that defendant personally inflicted great bodily injury on the victim, Michael Foreman. Defendant and Foreman were long-term occupants of a motel in Eureka, California. They resided two rooms apart and had known each other a few months, but were not on good terms. One day, Foreman and a friend, Carolyn Whiffing, were in 1 All further statutory references are to the Penal Code unless otherwise indicated.

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Foreman’s room. Defendant came by and began speaking aggressively with Whiffing, who was seated in a chair. Foreman got angry, told defendant to stop badgering Whiffing and to leave, and thrust a knife blade into the wall above his bed as a warning to defendant. Defendant threw an iron at Foreman, missed, and then started to run off. Foreman chased, defendant turned around, and the two started wrestling and then punching. Foreman got the better of defendant, and realizing he might be cutting off defendant’s air supply, asked defendant if he had had enough. The two stood up and Foreman held defendant against the wall. Foreman asked “[a]re you done?” and defendant said “ ‘[y]es,’ ” so Foreman let go and went back to his room. As Foreman was closing his door, defendant kicked it open, cursed at Foreman, and, according to Foreman, “started stabbing” Foreman. One neighbor heard Foreman scream “ ‘I’m stabbed.’ ” Foreman never saw what was stabbing him, rather he felt he was being stabbed with “something” and felt pinches. Whiffing saw blood and underhanded stabbing motions, but, like Foreman, did not see the weapon. Nonetheless, Foreman was stabbed five times: in his left side, puncturing his left lung; in his left side, by his ribs or stomach; under his right armpit; in his right forearm; and in his back. Foreman fell to his bed. Foreman gave somewhat conflicting testimony about where Whiffing was (either in the chair or near his side as he fell), even though Whiffing testified at trial that she remained in her chair until the fight was over and did not remember telling police she was so close defendant fell onto her. Regardless, after the attack, Foreman told her to call the police. After a discussion with Foreman about her likely having an outstanding warrant, she left. Whiffing recalls tending to Foreman’s wounds. Foreman does not recall this. Whiffing did have Foreman’s blood on her. Foreman did not believe Whiffing could have stabbed him, and Whiffing denied attacking Foreman. Defendant, when he later spoke to police, hypothesized Whiffing had stabbed Foreman. Responding to a call about the disturbance, the motel manager came out of his office to check on the situation and saw defendant pounding on the door to room 208.