People v. Mays CA4/1 ( 2020 )

Filed 11/17/20 P. v. Mays CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077179
Plaintiff and Respondent,
v. (Super. Ct. No. SCN404816)
JOSIAH J. MAYS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Brad A. Weinreb, Judge. Affirmed.
Rachel M. Ferguson, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
A jury convicted Josiah J. Mays of assault with a deadly weapon (Pen.
Code,1 § 245, subd. (a)(1)) and found he personally used a dangerous or
deadly weapon. Mays admitted a serious felony prior conviction (§ 667,
subd. (a)(1)) and a strike prior (§ 667, subds. (b)-(i)).
1 All further statutory references are to the Penal Code.
The court denied the motion to strike the “strike” prior but granted the
motion to strike the serious felony prior. Mays was sentenced to a
determinate term of eight years in prison.
Mays filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende) indicating she has not been able to identify any
arguable issues for reversal on appeal. Counsel asks the court to review the
record for error as mandated by Wende. We offered Mays the opportunity to
file his own brief on appeal, but he has not responded.
STATEMENT OF FACTS
The opening brief contains an accurate summary of the facts
surrounding the offense. We will incorporate that summary for convenience;
however, we will remove the victim’s name and substitute initials in its place.
On the night of September 10, 2019, Encinitas resident L.P. was
awakened around 11:00 p.m. by the sound of arguing. She heard a man’s
voice and tried to listen to understand what was happening but things
quieted and she went back to sleep. She woke a second time when the yelling
resumed; she recognized an angry sounding voice from the first time but
could not distinguish the second voice. The voice sounded agitated and she
thought she heard hitting. She called 911 because “it sounded like somebody
was getting hurt.” L.P. heard a smacking/spanking sound as though skin
was hitting skin. She did not hear the sound of a chain. She went to her
front yard; after calling 911, things got quiet. L.P. could see Glen Park from
her house, but it was unlit and dark. As the deputies arrived, she saw a man
stumble from the park and walk up the street yelling “Call the police.” L.P.
told the deputy someone had just exited the park and gave him the direction;
the deputy went in the indicated direction.
2
That night, R.S. was by himself, out for a walk after leaving a friend’s
house where he’d been drinking alcoholic beverages over the course of the
evening. His friend lived near Glen Park; R.S. left the house around
10:00 p.m. and went to Glen Park, entering through a parking structure and
walking on the park sidewalk. There were no lights on in the park or the
surrounding streets, but R.S. was familiar with the terrain from frequent
walks there and could see where he was going because the moon was very
bright.
As he walked, R.S. saw someone leaning over the railing of the
footbridge and heard a male voice tell him “to get the F out of here.” R.S. had
never seen anything like that at the park and started walking by the picnic
area. He didn’t hear anything as he walked, but when he got to the covered
picnic area R.S. heard a rattling chain and when he looked, someone was
walking behind him. R.S. and the individual, identified as Mays, were
separated by about 30 feet; R.S. was moving away from Mays, but Mays
appeared to follow him. Mays was wearing a beige/black hoodie sweater with
the hood pulled up on his head and black jeans.
When R.S. saw Mays, Mays did not say anything, but as Mays started
coming towards him, R.S. said “please don’t hit me,” “please don’t hit me.”
R.S. walked faster and faster; he looked back, saw Mays still there and heard
a chain rattling. R.S. assumed Mays was going to attack him and tried to get
away as fast as he could. He tried to run, but the grass was wet and he fell
on his knees. After R.S. fell, Mays hit him on the head with a chain from two
to three feet away.
R.S. put his hand over his head; blood was “gushing out,” then someone
else walked up and said, “leave him alone” and Mays stopped hitting him.
R.S. turned around and got out of there as quickly as he could. He tried to
3
get his phone out of his pocket to call 911 but was too flustered; the next
thing he knew, law enforcement was there. R.S. was not sure whether Mays
stayed there, but thinks he may have walked away from the footbridge. The
third person, the one who said to leave R.S. alone, also walked away.
Deputy Brett Fuller made contact with R.S. and took his statement.
R.S. was shaken up, blood coming down the left side of head, and stains near
the collar of his shirt. R.S.’s eyes welled up, and he started to cry a little bit.
It was difficult for him to tell Fuller what was going on and Fuller advised
him to “slow down a little bit.” R.S. recalled the officers asking what
happened, whether he could provide a description of the person who hit him,
whether he could describe the object used to strike him and whether he would
be able to identify someone in a lineup. He replied affirmatively and
described his assailant’s attire as “all like in black and a hoodie.” He further
told the officers his assailant had hit him two or three times with “like a whip
thing made of steel.”
Deputy Frank Ramos received a description of the suspect and arrived
at the south side of Glen Park near the playground area and tennis court. He
assessed the perimeter and began to walk around the park to attempt to
locate a suspect. Along the south side of the tennis court Ramos looked in the
bushes and noticed an object that seemed to be breathing. The object moved
slightly and it looked like someone was there; Ramos saw there was a person
in the bushes and commanded the individual to come out, “Come out with
your hands up. I see you. If you don’t come out with anything but your
hands you may be shot.” At first unresponsive, Mays emerged from the
bushes when Ramos’s partners arrived and issued more commands. Mays
was detained and later arrested.
4
A search of the bushes revealed a backpack three to five feet from
where Mays had been. The search also yielded a black baseball cap, a blue
long-sleeve flannel shirt, and a chain. The chain and shirt were found
together, about five feet away from where Mays was contacted. There was a
piece of chain on the backpack that was similar to the chain found next to the
shirt. Officers did not observe blood, particles, fibers, or hair on the chain.
The officers asked R.S. to participate in a curbside lineup and
admonished him that he was not obligated to identify anyone. Seated in
Fuller’s patrol vehicle, R.S. saw the person police had detained and asked if
the individual had a hoodie. Fuller instructed the officers to put the hood on
the suspect and R.S. identified him as Mays, “Yes! 100 [percent].”
The paramedics on scene treated R.S.’s injuries—a cut on his head and
scraped up knees and elbows from his fall. R.S. declined to go to the hospital
with the paramedics, because he thought he could apply pressure to his head
and the bleeding would stop. About two hours later R.S.’s head was still
bleeding so he asked someone at the 7-Eleven next to the park to call the
paramedics to take him to the hospital.
Physician’s assistant Mark Beyer treated R.S. at the hospital. A
physical examination revealed a laceration on R.S.’s scalp with some oozing,
bleeding, and mild swelling, but no pulsatile bleeding, no contamination by
foreign bodies, no depressed skull fracture, and no large hematoma. The
laceration was on the upper left side of R.S.’s head towards the middle. It
was three centimeters or one and three quarters inches long, five millimeters
deep. Beyer did not notice any other injuries that needed to be treated. R.S.
had “just an isolated laceration,” with little swelling, no significant bruising,
and no palpable deformity to suggest a skull fracture. Per the standard of
care for trauma, and given R.S.’s story and mechanisms, Beyer performed a
5
CAT scan of R.S.’s head on suspicion of possible underlying brain/skull
injury. The CAT scan results were unremarkable. Beyer treated the
laceration with three staples and instructed R.S. to use Neosporin daily to
keep the wound clean. The injury was described as moderate, in that it
required intervention in the form of the staple. Beyer determined it was
possible that a chain caused the injury, but there was nothing remarkable
about the wound that would make him say a chain had caused it.
During the exam R.S. was “slightly slurring words” which led Beyer to
believe he was “acutely intoxicated.” Beyer questioned what happened that
evening because R.S. could not describe people or things around him. Beyer
questioned the chronicity of the events because he clinically finds that anyone
who is showing signs of intoxication “may not be the best historian,” and he
found R.S.’s story bizarre. R.S. told Beyer he’d had three alcoholic beverages,
was experiencing nausea and headache (no dizziness or loss of consciousness)
and believed nausea and headache were related to overconsumption of
alcohol.
After treatment, R.S.’s pain lasted three to four days, diminishing each
day until it was gone. He felt dizzy and confused after being hit that night
and took painkillers to manage the pain.
DISCUSSION
As we have noted appellate counsel has filed a Wende brief and asks
the court to review the record for error. To assist the court in its review and
in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel
has identified issues that were considered in evaluating the potential merits
of this appeal:
1. Did the trial court err in denying Mays’s motion to strike his strike
prior; and
6
2. Did the trial court err in failing to give an instruction for the lesser
included offense of simple assault.
We have reviewed the entire record as required by Wende and Anders.
We have not discovered any arguable issues for reversal on appeal.
Competent counsel has represented Mays on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
AARON, J.
DATO, J.
7