People v. Mays CA4/1

Filed 11/17/20 P. v. Mays CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.