People v. Reed CA1/4 ( 2021 )

Filed 4/19/21 P. v. Reed CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FOUR
THE PEOPLE,
Plaintiff and Respondent, A155280
v. (San Francisco City & County
Superior Ct. No. 226661)
MICHAEL D. REED,
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on March 30, 2021, be
modified as follows:
1. On page 5, the first full sentence of the first full paragraph beginning,
“The following Tuesday, August 1, 2017, . . .” is changed to:
The following Tuesday, August 1, 2017, after the jury had
returned its phase 1 verdict, Juror No. 12 told the court's bailiff
at a break about the vandalism episode at his home.
There is no change in judgment.
The petition for rehearing is denied. Presiding Justice Pollak and
Justice Brown joined in the decision. Justice Streeter would have granted
the petition.
Date: _____________________ ________________________________ P. J.
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Filed 3/30/21 P. v. Reed CA1/4 (unmodified opinion)
See dissenting opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FOUR
THE PEOPLE,
Plaintiff and Respondent, A155280
v. (San Francisco City & County
Superior Ct. No. 226661)
MICHAEL D. REED,
Defendant and Appellant.
A jury found defendant Michael D. Reed guilty of possession of a
firearm by a felon (Pen. Code, § 29800, subd. (a)(1)), together with true
findings on various sentencing enhancements.1 He received an aggregate
sentence of seven years in prison, which included one year for a prior prison
term. On appeal, he argues (1) the trial court erred by failing to declare a
mistrial on grounds of juror misconduct, (2) the one-year component of his
sentence for a prior prison term must be stricken in light of the recent
enactment of Senate Bill No. 136 (2019–2020 Reg. Sess.) (Stats. 2019,
ch. 590, § 1), which he contends applies retroactively to nonfinal cases on
appeal, and (3) the abstract of judgment erroneously states that he is entitled
to 1376 days of custody credits, which he contends conflicts with the court’s
oral pronouncement of sentence awarding him 1378 days of custody credits.
1 All further statutory references are to the Penal Code.
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We reject defendant’s first argument, but we agree that the one-year
enhancement to his sentence must be stricken and that the abstract of
judgment should be corrected to reflect the accurate number of custody
credits. We shall therefore modify the judgment, but otherwise affirm.
I. BACKGROUND
A. The Charges and Verdict
One evening in 2016, Reed and a group of approximately 25 others
attended a party at a residence on Turk Street in San Francisco. After
drinking so much alcohol at the party that he became inebriated and
staggered out of the house, Reed heard gunshots and was also startled by a
bright flash that appeared to be gunfire coming from a car in the distance.
This took place in a neighborhood where gunplay was common. Because
Reed himself had been the victim of a shooting and had witnessed shootings
multiple times, and because someone at the party had mentioned that a
group of armed men was stirring up trouble nearby, Reed was fearful. So, he
testified, he grabbed a “community gun” that was stashed on the top of a tire
of a nearby parked car, and fired back in self-defense. Alerted to gun shots in
the area by “shotspotter” sensors, police responded. Reed was eventually
arrested after video surveillance footage identified him as a shooter. It
turned out there were nine people in the car he saw, none of whom was
hostile to Reed. One of them, in fact, was a good friend of his.
Reed was charged with nine counts of attempted first degree murder
(§§ 664, 187, subd. (a); counts 1, 3, 5, 7, 9, 11, 13, 15, and 17), nine counts of
assault with a semi-automatic firearm (§ 245, subd. (b); counts 2, 4, 6, 8, 10,
12, 14, 16, and 18), one count of possession of a firearm by a felon (§ 29800,
subd. (a)(1); count 19), one count of discharge of a firearm at an occupied
vehicle (§ 246; count 20), and one count of participating in a criminal street
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gang (§ 186.22, subd. (a); count 21). The information further alleged that in
the commission of counts 1 to 18 Reed personally discharged a firearm
(§§ 12022.53, subd. (c), 12022.5, subd. (a)), and acted in association with a
criminal street gang (§ 186.22, subd. (b)(1)); that he used a firearm in the
commission of count 19 (§§ 667, subd. (e)(2)(C)(iii), 1170.12,
subd. (c)(2)(C)(iii)), and that in the commission of count 20 he acted in
association with a criminal street gang (§ 186.22, subd. (b)(4)(B)). Finally,
the information alleged that Reed was on parole when he committed the
offenses (§ 1203.085, subds. (a), (b)), and had been convicted of two prior
strike offenses (§§ 667, subds. (d)–(e), 1170.12, subds. (b)–(c)) and two prior
serious felonies (§ 667, subd. (a)(1)).
To minimize prejudice to Reed from evidence of his gang membership,
gang activities, and prior convictions, the court conducted the trial in phases,
starting in a first phase involving counts 1–20, the attempted murder,
assault with a semi-automatic weapon, felon in possession of a weapon, and
shooting at an occupied motor vehicle charges, along with accompanying
enhancement allegations (except for the criminal street gang allegation
pertaining to count 19); moving next to a phase 2 involving count 21 and all
criminal street gang charges; and finishing in a third phase involving the
prior conviction and prior prison term allegations. At the conclusion of the
evidence in phase 1, the court granted a motion to dismiss the allegations
that the attempted murders were willful, deliberate, and premeditated (as to
counts 1, 3, 5, 7, 9, 11, 13, 15, and 17). The jury hung on the attempted
murder and assault charges (counts 1 through 18), resulting in a mistrial on
those charges, and returned verdicts of guilty on the felon in possession of a
weapon and shooting at an occupied motor vehicle charges (counts 19 and
20). The court later recognized it was error not to have instructed the jury on
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a lesser included charge to count 20, and granted a motion for a new trial on
that ground. In phase 2, the jury hung on the criminal street gang charge
(count 21) and the related gang enhancement allegations. And in phase 3,
the jury returned true findings on the allegation that defendant was on
parole at the time of the alleged offenses, and that defendant had suffered
one prior conviction and served two prison terms.
B. Deliberations
The jury began its deliberations on the phase 1 charges at 9:43 a.m. on
Wednesday, July 26, 2017. They continued deliberating from 9:07 a.m. to
4:00 p.m. (with a 65-minute lunch break) on July 27. The jury resumed its
deliberations on Friday morning, July 28. At 2:54 pm that day, the jury told
the court it was unable to reach a verdict on any of the phase 1 counts. The
court informed the jury that further instructions would be read to them on
Monday morning, July 31, and ordered them to return at 9:00 a.m. the
following Monday for continued deliberations.
Before coming to court on Monday, July 31, Juror No. 12 discovered
that someone had sprayed yellow or gold graffiti on the steps and walkway
leading to the street in front of his house. He interpreted the graffiti as gang-
related, which was highly unusual for his neighborhood. He did not take a
photograph of the graffiti, which he did not recognize and could not read, and
he did not speak to anyone at his home about the graffiti when he saw it that
morning. He did not mention the graffiti to anyone at the court when he
arrived and proceeded to deliberate that day with his fellow jurors, nor did he
inform anyone within the city government that the graffiti should be
removed. Only upon returning home from court on Monday evening did he
discuss the graffiti with his husband, who had seen it by that point.
4
The following Tuesday, August 1, 2017, after the jury had returned its
phase 1 verdict and counsel had presented opening argument at the start of
phase 2, thus alerting Juror No. 12 for the first time to the prospect that
there would be evidence of gang activity in the case, Juror No. 12 told the
court’s bailiff at a break about the vandalism episode at his home. The
episode made him feel fearful, and he appeared to be upset when he disclosed
this.
With counsel present, the court then conducted an inquiry outside the
presence of the other jurors. In his testimony, Juror No. 12 explained that he
did not mention the spray-painting in front of his house on Monday, July
31—the day he saw it—because it appeared to him that the jury was about to
hang on counts 1–18, which he thought would conclude the trial. He stated
he suspected the case might be gang-related because he had grown up in
Chicago and was aware of gangs; the court responded that the jury
questionnaire had also raised the issue of gangs, which Juror No. 12
confirmed. Juror No. 12 explained that “right at the beginning of
deliberations,” he mentioned to the other jurors his suspicion that the case
could be in some way gang-connected. Because there was no gang-related
evidence in the case at that point, however, none of the other jurors was
interested in further discussing the issue “because they felt it was
unsubstantiated.” Juror No. 12 said he thereafter “dropped that line of
thought because, as a group, [the jury] did not want to pursue” it. Then,
having learned at the start of phase 2 the following Tuesday, August 1, that
there may be a gang component to the case—which Juror No. 12 described as
“all new news”—he “no longer felt [he] could be fair as related to” the phase 2
charges. The court inquired about possible bias before phase 2 began, and
Juror No. 12 stated that the vandalism episode had not affected his fairness
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and impartiality in the phase 1 deliberations. In response to a question from
defense counsel, Juror No. 12 also made clear that he did not “bring up the
topic of gang or gangs at all in any of [the] deliberations on Monday” after he
saw the graffiti. At the conclusion of this inquiry, the court excused Juror
No. 12 and replaced him with an alternate. Reed made no motion for a
mistrial on the phase 1 verdict.
II. DISCUSSION
A. Phase 1 Verdict
Governing Legal Principles
“An accused has a constitutional right to a trial by an impartial jury.
[Citations.] An impartial jury is one in which no member has been
improperly influenced [citations] and every member is ‘ “ ‘capable and willing
to decide the case solely on the evidence before it.’ ” ’ ” (In re Hamilton (1999)
20 Cal.4th 273, 293–294.) “A sitting juror’s involuntary exposure to events
outside the trial evidence, even if not ‘misconduct’ in the pejorative sense,
may require . . . examination for probable prejudice. Such situations may
include attempts by nonjurors to tamper with the jury, as by bribery or
intimidation.” (Id. at pp. 294–295.) “Misconduct by a juror, or a nonjuror’s
tampering contact or communication with a sitting juror, usually raises a
rebuttable ‘presumption’ of prejudice.” (Id. at p. 295.) A juror is permitted to
testify to “ ‘any facts bearing upon the question of the existence of the
disturbing influence,’ ” but may not testify whether and to what extent the
influence operated upon the juror’s mind. (People v. Holloway (1990)
50 Cal.3d 1098, 1109; Evid. Code, § 1150.)
“[W]hether an individual verdict must be overturned for jury
misconduct or irregularity ‘ “ ‘is resolved by reference to the substantial
likelihood test, an objective standard.’ ” ’ [Citation.] Any presumption of
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prejudice is rebutted, and the verdict will not be disturbed, if the entire
record in the particular case, including the nature of the misconduct or other
event, and the surrounding circumstances, indicates there is no reasonable
probability of prejudice, i.e., no substantial likelihood that one or more jurors
were actually biased against the defendant.” (In re Hamilton, supra,20 Cal.4th at p. 296.)
The Supreme Court has recognized that some extraneous material,
judged objectively, is so prejudicial in context as to be “inherently and
substantially likely to have influenced the juror.” (In re Carpenter (1995)
9 Cal.4th 634, 653.) A court can also find bias, even if the information is not
“inherently prejudicial” where, from the nature of the misconduct and the
surrounding circumstances, the court determines that it is substantially
likely a juror was “actually biased.” (People v. Nesler (1997) 16 Cal.4th 561,
579.) On a record disclosing that there is a substantial likelihood a juror was
actually biased, failure to set aside a verdict on which the juror voted compels
reversal. “[N]o matter how convinced we might be that an unbiased jury
would have reached the same verdict, . . . a biased adjudicator is one of the
few structural trial defects that compel reversal without application of a
harmless error standard.” (Ibid.)
Analysis
Juror No. 12 discovered on July 31, the fourth day of phase 1
deliberations, that his home had been vandalized in an incident he felt was
gang-related. He mentioned this incident to no one in court on that date,
first reporting it to the court the next day when he learned that the case
would involve gang-related evidence. During the court’s inquiry into the
issue on August 1, Juror No. 12 testified he could no longer be impartial,
given the “all new news” that phase 2 would involve gang-related issues.
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As a preliminary matter, defendant concedes that his trial counsel
failed to move for a mistrial or to set aside the phase 1 verdict based on Juror
No. 12’s disclosure of the graffiti outside his home.2 His claim of error is
therefore waived. (People v. Stanley (2006) 39 Cal.4th 913, 950 [after
learning that a juror had read a newspaper article about the trial, defendant
failed to object to the juror’s continued service and failed to request a
mistrial; “[a]s such, the claim is waived on appeal”]; People v. Russell (2010)
50 Cal.4th 1228, 1250 ([“Defense counsel did not object to Juror No. 8’s
continued service on the jury, and did not request a mistrial based upon juror
misconduct. A claim of prejudicial misconduct is waived when the defendant
fails to object to a juror’s continued service and fails to seek a mistrial based
upon prejudice”].)3
Even if we were inclined to exercise our discretion to address this
claim, we would find no basis for reversal. On this record, the illegible
graffiti was not inherently prejudicial, and any presumption of prejudice
arising from Juror No. 12’s viewing of the graffiti was rebutted, as there is
2 We note that defense counsel seems to have made a conscious tactical
decision not to move to set aside the phase one verdict (which ultimately
resulted in a conviction as to only count 19) on the basis of Juror No. 12’s
viewing of the graffiti. Defense counsel made no such request at the time of
Juror No. 12’s statements to the court and counsel, nor did defense counsel
raise any issue as to Juror No. 12 in her motion for a new trial.
3 Although Reed cites People v. Vera (1997) 15 Cal.4th 269, 276 for the
proposition that “ ‘a defendant is not precluded from raising for the first time
on appeal a claim asserting the deprivation of certain fundamental,
constitutional rights,’ ” he fails to recognize that Vera predated the Supreme
Court’s subsequent decisions in Stanley and Russell. Moreover, the Supreme
Court subsequently called this statement from Vera “dictum,” noting that it
was “not intended to provide defendants with an ‘end run’ around the
forfeiture rule, thus eviscerating it.” (People v. Tully (2012) 54 Cal.4th 952,
980, fn. 9.)
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“no substantial likelihood that one or more jurors were actually biased
against the defendant.” (In re Hamilton, supra, 20 Cal.4th at p. 296, italics
omitted.) Juror No. 12 did not raise the graffiti with his fellow jurors or
anyone at the court on the day he saw it, the fourth day of deliberations on
the phase 1 charges, which did not involve any gang-related allegations or
evidence. These facts strongly suggest that the graffiti did not cause Juror
No. 12 to be biased during the phase 1 deliberations, especially given that he
had previously suspected and briefly raised with his fellow jurors the
possibility that the case was gang-related “right at the beginning of
deliberations.” If viewing the graffiti on Monday morning, July 31, had
caused Juror No. 12 to harbor gang-related bias toward Reed during
consideration of the phase 1 charges, one would expect him to have raised the
incident or the issue of gangs again that day. He made clear, however, that
he did not “bring up the topic of gang or gangs at all in any of [the jury’s]
deliberations on Monday.”
Second, the court’s observation of and colloquy with Juror No. 12 on
August 1 further supports the inference that Juror No. 12 was not biased
during the phase 1 deliberations, and only began to feel partial after learning
on August 1 the “all new news” that the case would, in fact, involve gang
evidence. The court observed that Juror No. 12 appeared shaken and
distraught when speaking with the court and counsel about the graffiti.
After confirming that Juror No. 12 had not shared the information about the
graffiti with the other jurors on July 31, the court summarized her
understanding of what Juror No. 12 stated on August 1: “[G]iven the graffiti
in front of your house and given that there are gang allegations in this case
now, you could no longer be unbiased. And you seemed to imply that you no
longer felt you could be fair as related to these charges to Mr. Reed.” Juror
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No. 12 confirmed the court’s summary. Again, if Juror No. 12 had felt
distraught and biased when deliberating on the day he saw the graffiti, one
would expect him to have corrected the trial court and said that his bias had
arisen earlier, and one would expect that someone in the courthouse would
have noticed his distress before August 1. Similarly, if Juror No. 12 had felt
distraught and shaken on the morning he saw the graffiti, one would have
expected him to photograph it or at least mention it to his husband before
that evening.
Third, on the afternoon of July 28—three days before Juror No. 12 saw
the graffiti—the jury informed the court that it believed itself to be
deadlocked on the phase 1 counts. The court ordered the jury to continue
deliberating the following Monday, and the jury ultimately returned guilty
verdicts on only counts 19 and 20, which were the felon in possession of a
firearm and shooting at an occupied motor vehicle charges.4 As the factual
basis for those two charges was supplied by a stipulation as to defendant’s
status as a felon, his testimony that he grabbed a gun and began shooting,
and the forensic evidence showing multiple shell casings next to a black SUV,
the jury’s July 28 note and the July 31 verdict itself rebut any presumption
that Juror No. 12’s viewing of the graffiti caused gang-related bias toward
defendant.
Accordingly, defendant’s argument as to alleged juror misconduct
provides no basis for reversal.
4 As noted previously, the trial court ultimately granted the defense’s
motion for a new trial as to count 20, the shooting at an occupied motor
vehicle charge.
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B. Senate Bill No. 136
The trial court sentenced defendant to the upper term on count 19 (the
felon in possession of a firearm charge), doubled for a strike prior, plus a one-
year enhancement pursuant to section 667.5, subdivision (b) for a prior
conviction. When defendant was sentenced, “section 667.5, subdivision (b)
required trial courts to impose a one-year sentence enhancement for each
true finding on an allegation the defendant had served a separate prior
prison term and had not remained free of custody for at least five years.
(§ 667.5, subd. (b).) Courts nevertheless had discretion to strike that
enhancement pursuant to section 1385, subdivision (a). [Citation.] Effective
as of January 1, 2020, Senate Bill 136 amend[ed] section 667.5, subdivision
(b) to limit its prior prison term enhancement to only prior prison terms for
sexually violent offenses, as defined in Welfare and Institutions Code section
6600, subdivision (b).” (People v. Jennings (2019) 42 Cal.App.5th 664, 681.)
The conviction underlying Reed’s prior prison term enhancement was for a
violation of section 245, subdivision (b), which is not listed in Welfare and
Institutions Code section 6600, subdivision (b). (Welf. & Inst. Code, § 6600,
subd. (b).)
Because Senate Bill No. 136 (2019–2020 Reg. Sess.) reduced a criminal
punishment, “[i]t is an inevitable inference that the Legislature must have
intended that the new statute imposing the new lighter penalty now deemed
to be sufficient should apply to every case to which it constitutionally could
apply.” (In re Estrada (1965) 63 Cal.2d 740, 745; People v. Buycks (2018)
5 Cal.5th 857, 882 [“ ‘The rule in Estrada has been applied to statutes
governing penalty enhancements, as well as to statutes governing
substantive offenses’ ”].) “This intent seems obvious, because to hold
otherwise would be to conclude that the Legislature was motivated by a
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desire for vengeance, a conclusion not permitted in view of modern theories of
penology.” (Estrada, at p. 745.) Accordingly, as the People here concede,
Senate Bill No. 136 applies retroactively to defendants like Reed, whose case
was not yet final when the statute took effect on January 1, 2020. (People v.
Cruz (2020) 46 Cal.App.5th 715, 738–739.) The one-year enhancement must
therefore be stricken from defendant’s sentence.
C. Custody Credits
The People also concede that the abstract of judgment, which states
that defendant had a total of 1376 custody credits, should be corrected to
reflect 1378 custody credits as of the date of sentencing, consistent with the
trial court’s oral pronouncement that the defendant had served 689 days in
custody and was entitled to 689 custody credits. We accept the concession.
(People v. Zackery (2007) 147 Cal.App.4th 380, 385 [“Where there is a
discrepancy between the oral pronouncement of judgment and the minute
order or the abstract of judgment, the oral pronouncement controls”].)
DISPOSITION
The judgment is modified by correcting the credits calculation to reflect
1378 custody credits and by striking the one-year enhancement pursuant to
Senate Bill No. 136 (2019–2020 Reg. Sess.) and section 667.5, subdivision (b),
as amended. The trial court is ordered to amend the abstract of judgment in
accordance with this opinion, and to forward a certified copy of the amended
judgment to the Department of Corrections and Rehabilitation. As modified,
the judgment is affirmed.
BROWN, J.
I CONCUR:
POLLAK, P. J.
People v. Reed (A155280)
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STREETER, J., Dissenting.
I respectfully dissent from the majority’s holding that the trial court
did not err in failing to set aside the Phase I verdict. Juror No. 12 admitted
believing the graffiti incident at his home was gang-related, admitted raising
the issue of gang motivation with fellow jurors in Phase I deliberations
(which shows he thought there was a gang issue in the case at that stage),
and admitted actual bias a few days after the jury rendered its Phase I
verdict, which resulted in his excusal for cause. On these facts I cannot agree
that Juror No. 12’s admitted bias suddenly appeared when the prosecution
made clear what he suspected all along—that there was a gang issue in the
case. For him to participate in the Phase I deliberations and cast a vote on
the verdict was wrong. Because the right to a fair and impartial jury is not
subject to waiver or forfeiture, and because the presence of even a single
biased juror on a jury violates that right, resulting in structural error that is
prejudicial per se, I would reverse on grounds of juror misconduct.
STREETER, J.
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