Filed 5/6/21 P. v. Reed CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B301475
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA105464)
v.
JAMAL REED,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Gary J. Ferrari, Judge. Affirmed.
Juliana Drous, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr., and Steven D.
Matthews, Deputy Attorneys General, for Plaintiff and
Respondent.
******
Jamal Reed (defendant) appeals his conviction for
attempted voluntary manslaughter and the resulting 20-year
prison sentence on the grounds of (1) insufficiency of the
evidence, and (2) the trial court’s erroneous failure to exercise its
discretion in dismissing two sentencing allegations stemming
from his 1994 robbery conviction. His arguments lack merit, so
we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
During the first few days of December 2016, Humberto
Moreno (Moreno) was hosting a multi-day birthday celebration
for himself in the common area of an apartment complex in Long
Beach, California. Around 6:00 p.m. on December 3, Moreno
heard a commotion in one of the complex’s apartments where his
friend lived and went to check it out. As he entered the
apartment, Moreno saw eight to 10 people in the apartment’s
living room. One of those people was defendant, who had been a
long-term guest in that apartment for a few months.
After Moreno and defendant exchanged “What’s up?”
greetings, defendant told Moreno, “I don’t like you . . . , cuz” and
punched Moreno in the chest. The two men exchanged several
blows. Moreno was younger and bigger than defendant, and
managed to knock defendant to the ground two times. While
defendant was on the ground the second time, defendant told a
second man in the room to “get [Moreno]. It’s your turn.” As
Moreno and the second man started to exchange blows, defendant
pulled out a knife and stabbed Moreno in the leg. Moreno fell
backwards, knocking down a glass TV stand, and landing on his
back. At that point, and as the second man was punching
Moreno, defendant crouched over Moreno and stabbed him 20
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more times in his abdomen, left side, left hip, leg, lower back,
buttocks and left shoulder and arm. Blood splattered
everywhere. Defendant and the second man then ran out of the
apartment.
Moreno spent three days in the hospital. While there,
doctors repaired 21 stab wounds and repaired five punctures to
Moreno’s abdominal wall, which had lost its integrity due to the
multiple knife incisions. However, because Moreno had a “large
layer of fat” around his midsection, none of the knife incisions
harmed a “vital organ[].” The doctor classified Moreno’s injuries
as “serious.”
II. Procedural Background
The People charged defendant with (1) attempted
premeditated murder (Pen. Code, §§ 187, subd. (a), 664),1 and (2)
assault with a deadly weapon (§ 245, subd. (a)(1)). As to both
charges, the People further alleged that defendant personally
inflicted great bodily injury (§ 12022.7, subd. (a)) and personally
used a deadly and dangerous weapon (namely, a knife) (§ 12022,
subd. (b)(1)). The People also alleged that defendant’s 1994
robbery conviction constituted a “strike” under our Three Strikes
Law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(j)) as well as a
prior serious felony (§ 667, subd. (a)(1)).
Defendant took the stand at trial, testifying that Moreno
threw the first punch, that Moreno sat on top of defendant, and
that defendant stabbed Moreno just two or three times because
he “fear[ed] for [his] life and [his] safety.” Defendant had no
explanation for how Moreno got the other 18 or 19 stab wounds.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
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The trial court instructed the jury on the charged crimes of
attempted premeditated murder and assault with a deadly
weapon; on the lesser included crime of attempted voluntary
manslaughter (both due to heat of passion and imperfect self-
defense); and on perfect self-defense.
The jury found defendant guilty of attempted voluntary
manslaughter and assault with a deadly weapon, and found the
great bodily injury and weapon allegations to be true. After
defendant waived his right to a jury trial on the prior “strike”
allegation, the trial court subsequently found that allegation to
be true.
The trial court sentenced defendant to 20 years in state
prison. Specifically, the court imposed a 20-year sentence for the
attempted voluntary manslaughter count comprised of a base
sentence of 11 years (the high-end term of five and one-half
years, doubled due to the prior strike), plus five years for the
prior serious felony, plus three years for the great bodily injury
enhancement, plus one year for the weapon enhancement. The
court imposed a sentence of two years for the assault with a
deadly weapon count, but stayed the sentence pursuant to section
654. In imposing this sentence, the court expressly denied
defendant’s motion to dismiss the prior “strike” allegation.
Defendant filed this timely appeal.
DISCUSSION
I. Sufficiency of the Evidence for Attempted Voluntary
Manslaughter Conviction
Defendant argues that there was insufficient evidence that
he had the intent to kill Moreno, and thus could not be convicted
of attempted voluntary manslaughter. In reviewing whether the
evidence supports the jury’s finding that defendant acted with
the intent to kill, our task is not to “substitute [our] judgment for
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that of the jury” (People v. Pride (1992) 3 Cal.4th 195, 247
(Pride)); rather, our job is merely to assess whether, viewing the
evidence in the light most favorable to the jury’s verdict, there is
“‘“‘substantial evidence—that is, evidence which is reasonable,
credible, and of solid value—such that a reasonable [jury] could
find the defendant guilty beyond a reasonable doubt.’”’
[Citation.]” (People v. Casares (2016) 62 Cal.4th 808, 823,
overruled in part on other grounds as stated in People v. Dalton
(2019) 7 Cal.5th 166, 214; People v. Covarrubias (2016) 1 Cal.5th
838, 890.)
Because voluntary manslaughter is a type of intentional
homicide that lacks malice aforethought (People v. Bryant (2013)
56 Cal.4th 959, 970) and because all attempt crimes require
specific intent (§ 21a; People v. Gutierrez (2003) 112 Cal.App.4th
704, 710), a person may be convicted of attempted voluntary
manslaughter only if he acts with the intent to kill. (People v.
Montes (2003) 112 Cal.App.4th 1543, 1545.) Because there is
“‘rarely direct evidence of a defendant’s intent’” to kill, that intent
is usually to be “inferred from the defendant’s acts and the
circumstances of the crime.” (People v. Smith (2005) 37 Cal.4th
733, 741 (Smith).)
Substantial evidence supports the jury’s finding that
defendant acted with the intent to kill Moreno. That is because a
jury may infer an intent to kill from a defendant’s conduct of
repeatedly stabbing a person, particularly in vulnerable areas of
the body like the torso or the head. (People v. Moore (2002) 96
Cal.App.4th 1105, 1114; Smith, supra, 37 Cal.4th at p. 741;
People v. Morales (2020) 10 Cal.5th 76, 91; Pride, supra, 3 Cal.4th
at pp. 247-248; People v. Avila (2009) 46 Cal.4th 680, 701-702
(Avila); People v. San Nicolas (2004) 34 Cal.4th 614, 658 [“sheer
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number of wounds” implies intent to kill].) Viewing the evidence
in the light most favorable to the verdict, defendant crouched
over Moreno as Moreno was being punched by the second man
and proceeded to stab him 21 times, with the majority of those
wounds in Moreno’s abdomen and back.
Defendant resists this conclusion with what boil down to
two arguments. First, defendant argues that he could not have
formed an intent to kill because his victim had a “large layer of
fat” around his midsection, so repeated stabs with a shorter knife
would not hit any vital organs. We reject this argument. It is
well settled that the extent of injury a defendant inflicts is “not
dispositive” of his intent. (Avila, supra, 46 Cal.4th at p. 702.)
Just as an assailant’s fortuitous bad aim with a gun or a knife
does not negate his intent to kill (People v. Gonzalez (2005) 126
Cal.App.4th 1539, 1552; People v. Lashley (1991) 1 Cal.App.4th
938, 945), the fortuity that Moreno’s “large layer of fat” resulted
in more severe structural damage to his abdominal wall but less
severe injury to his vital organs does not negate the intent to kill
defendant displayed by his rapid-fire stabbing of Moreno’s torso
and back nearly two dozen times in 30 seconds. Second,
defendant urges that his attack was just a “rash impulse”
stemming from a mutual combat and lacked any real motive.
This argument ignores that an intent to kill may be inferred
“‘even if the act was done without advance consideration and only
to eliminate a momentary obstacle or annoyance’” (Smith, supra,
37 Cal.4th at p. 741, italics omitted), and defendant himself
testified that Moreno “bothered” him. The absence of a more
sinister motive for defendant’s attack is of no consequence for the
same reason.
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II. Sentencing Challenges
A. Refusal to dismiss the “strike” allegation
Defendant argues that the trial court erred in denying his
motion to dismiss the allegation that his 1994 robbery conviction
constituted a “strike” under our Three Strikes Law. A trial court
has the discretion to dismiss such allegations. (§ 1385, subd. (a);
People v. Williams (1998) 17 Cal.4th 148, 162.) In deciding
whether to exercise this discretion, the court is to “‘consider
whether, in light of the nature and circumstances of [the
defendant’s] present felonies and prior serious and/or violent
felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside
the [Three Strikes] scheme’s spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted
of one or more serious and/or violent felonies.’” (People v.
Carmony (2004) 33 Cal.4th 367, 377.) There is a “strong
presumption” against granting a motion to dismiss. (Id. at p.
378.) We evaluate a trial court’s decision not to grant a motion to
dismiss for an abuse of discretion. (Id. at pp. 373-374.)
The trial court did not abuse its discretion in denying
defendant’s motion to dismiss the strike allegation. The court
cited three reasons for declining to strike the allegation
notwithstanding the age of the prior “strike” conviction and the
absence of any felony convictions in the intervening 22 years—
namely, (1) the prior 1994 robbery involved defendant robbing
the victim at gunpoint, (2) the current crime “was a serious,
serious offense,” and (3) defendant’s felonies involved an
“increasing use of violence” (presumably because he went from
threatening someone with a deadly weapon to actually using a
deadly weapon). These are valid considerations, and the trial
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court’s weighing of the factors favoring and disfavoring dismissal
of the allegation was not an abuse of discretion.
Defendant levels four challenges at the court’s ruling.
First, he argues that the court did not give weight to the jury’s
decision to convict defendant of the lesser included offense of
attempted voluntary manslaughter rather than attempted
premeditated murder. What matters, however, is what the
defendant did—and the court properly considered the seriousness
of defendant’s conduct in stabbing Moreno 21 times. Second,
defendant argues that the trial court erred in giving “sole[]”
weight to the seriousness of his current offense. This misreads
the court’s stated explanation. Third, defendant argues that he is
not a “career criminal” because his prior “strike” conviction is old
and because he only committed two misdemeanors in the decades
between robbing someone at gunpoint and stabbing Moreno
repeatedly with a knife. However, the age of a prior strike
conviction, while relevant, is not dispositive; the trial court
considered the age of that conviction, but found it offset by
defendant’s intervening (albeit minor) criminal history and the
escalating nature of his use of violence. Lastly, defendant argues
that the trial court “failed to balance the relevant facts.” We
“presume[] that the trial court considered all the relevant factors
in denying [a] motion to strike” (People v. Pearson (2008) 165
Cal.App.4th 740, 749), and defendant has not rebutted that
presumption. At bottom, defendant is asking us to reweigh the
factors in a way more to his liking, but that is beyond our
purview. (People v. Myers (1999) 69 Cal.App.4th 305, 309 [“‘[W]e
do not reweigh the circumstances of the case to determine
whether, in our opinion, the trial court should have
. . . exercis[ed] its discretion to strike a prior conviction’”].)
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B. Failure to strike the prior serious felony
allegation
On January 1, 2019, the law changed to give trial courts
the discretion to strike the five-year enhancement for having a
prior serious felony conviction. (§ 667, subds. (a) & (f)(2); Stats.
2018, ch. 1013, §§ 1-2.) At defendant’s sentencing in late
September 2019, the trial court did not dismiss that
enhancement. Defendant argues that because the court did not
expressly indicate that it was declining to exercise its discretion
to dismiss that enhancement, the court erred and a remand is
required. He is wrong. Although the trial court did not discuss
its authority to dismiss this allegation, its silence on this point is
of no consequence. That is because, “[i]n the absence of
. . . evidence to the contrary, we must presume the [trial] judge
was aware of his [or her] discretion and chose not to exercise it.”
(In re Consiglio (2005) 128 Cal.App.4th 511, 516; see also People
v. Mosley (1997) 53 Cal.App.4th 489, 496 [“The general rule is
that a trial court is presumed to have been aware of and followed
the applicable law”].) Here, there is no evidence to the contrary.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
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