Opinion
H047298
11-20-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA ANDREW NAY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 19CR01888)
Defendant was placed on probation after a jury found him guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and delaying a peace officer (Pen. Code, § 148, subd. (a)(1)). His appointed appellate counsel has filed an opening brief which states the case and the facts but raises no issues. Defendant was notified of his right to submit written argument on his own behalf but has failed to avail himself of the opportunity. Under these circumstances, our role is to review the entire record pursuant to People v. Wende (1979) 25 Cal.3d 436 to determine whether there are any arguable issues on appeal. We find none and affirm the order of probation.
I. FACTS
On March 23, 2019, Nicholas Joseph Porter was working as an event coordinator for a 5K and 10K "She Is Beautiful" race on West Cliff Drive in Santa Cruz. The race organizers had put up 10-foot-long aluminum barricades to prevent westbound traffic from entering West Cliff during the race. After the race ended, Porter was assigned to detour westbound traffic onto a side street to keep cars off of West Cliff while the organizers cleaned up after the race. Porter was wearing a "fluorescent green traffic vest."
Defendant drove up West Cliff in a Volkswagen Golf, parked right in front of Porter, got out of his car, and approached Porter, who was standing in the eastbound lane of West Cliff. Defendant, who was visibly angry, told Porter that the road was public and that he had the "right" to drive down it even though it was blocked. He told Porter to " '[g]et the fuck out of the way.'" Porter, who was concerned about his coworkers who were working in the roadway on West Cliff further to the west, told defendant that he could not drive down West Cliff.
Defendant "got more upset" and threw the two barricades in the westbound lane into the bushes. Porter told him that he was going to have to pay for the barricades. Defendant responded by stating his name, flashing an identification card bearing his name, and saying " 'I don't give a shit if you know my name,' " before getting back in his car. Porter took a "live" photograph of defendant as he did this, and defendant could be seen and heard in the photo identifying himself by name and flashing his identification card.
Defendant got back in his car and told Porter " 'If you don't move, I will run you over.' " Porter again told defendant that he could not drive down West Cliff, and Porter positioned himself in front of defendant's car as the car moved slowly toward him. Defendant drove toward Porter, "swerved a little bit," and stopped in the intersection within arm's reach of Porter. Porter again positioned himself in front of defendant's car and told him " 'You can't come down here.' " Defendant repeated his threat: " 'I mean it. If you don't move, I'm going to run you over.' " Defendant quickly backed up his car about 20 or 30 feet and then drove directly toward Porter "at a fast pace." Porter jumped out of the way as defendant drove at 20 miles per hour directly through the spot where Porter had been standing. Defendant's car passed within arm's reach of Porter. Defendant could have driven his car westbound on West Cliff without coming near Porter, but he instead drove at Porter. A bystander witnessed the entire incident.
Porter called 911. Defendant's car continued down West Cliff toward the lighthouse. The police arrived within a few minutes. Porter showed them the photo he had taken of defendant and gave them a description of defendant's car and its license number. The police located defendant's car in a parking lot across from the lighthouse on West Cliff, a quarter to a half mile away from where Porter had encountered defendant. While the police were taking photos of the car, defendant approached them and asked "why we were harassing people." An officer asked him if he knew who the car belonged to, and defendant said he "might." The officer detained defendant, called Porter, and asked Porter to come to the officer's location. Porter arrived and identified both defendant and his car.
The officer arrested defendant for assault with a deadly weapon, handcuffed him, put him in a patrol vehicle, and drove him to the jail. During this process, defendant slipped his handcuffs from behind him to in front of him, which the officer considered a safety issue. When the officer arrived at the jail, he left defendant in the car and went inside to fill out the prebooking paperwork, which usually takes about 20 to 30 minutes. The officer was working on the paperwork when defendant began banging his head against one of the car's windows. The officer tried to calm defendant down, but defendant insisted that he would "hurt himself" if he was not taken out of the car. Defendant resumed banging his head, causing a laceration to his forehead, and he told the officer that he was "going to have to take him to the hospital." The officer's body camera recorded this incident. The officer was forced to call an ambulance due to defendant's self-inflicted injury. Because the injury required stitches, defendant had to be transported to the hospital. The officer had to accompany defendant to the hospital and stand by while he was treated before he could take defendant back to the jail. Defendant's actions delayed the officer over an hour in booking defendant into the jail.
II. PROCEDURAL BACKGROUND
Defendant was charged by information with assault with a deadly weapon and delaying a peace officer. The court denied defendant's pretrial request for a new appointed attorney because defendant failed to show that his appointed attorney was not performing competently.
Defendant testified at trial that he had believed that the race would be over by the time he got to West Cliff. When he reached the barricades, he tried to go around them because he believed the road closure was invalid and in any case could not continue after 9:30 a.m. Porter stopped him by stepping in front of his car. Defendant told Porter that he had a right to drive down West Cliff, and Porter told him he could not. The two men argued, and defendant told Porter to "Get the F out of my way."
Defendant admitted that he removed the barricades. He then got back in his car and headed westbound toward the westbound lane on West Cliff. Porter "jumped in front of my car." Defendant stopped his car. He backed up and tried to head westbound down the eastbound lane. Porter again jumped in front of defendant's car, and defendant again stopped his car. Defendant backed up again and tried the westbound lane again. Porter again got in front of his car. This time, defendant backed up and was "acting like" he was going to go in the eastbound lane but then swerved into the westbound lane when he was five feet from colliding with Porter. Porter "did try to jump in front of my car a little bit and then jumped back out of the way."
On cross-examination, defendant admitted that he was "playing chicken with" Porter, but he denied "trying to hit him with the car." Defendant also admitted that he "almost hit" Porter and "came within inches" of him. Yet he insisted: "I was trying to drive around him, and each time he kept getting in front of my car. It wasn't that I was directly driving at him."
Defendant testified that after he was arrested and taken to the jail, he told the officers that he was "epileptic and I have seizures and I felt like I was going to have one in the car." He was upset because they left him in the car, so he banged his head until he had a cut, which required the officers to take him to the hospital. Defendant admitted that the trip to the hospital delayed his booking.
The court instructed the jury that it could consider "[h]ow certain was the witness when he or she made an identification" in evaluating eyewitness identification testimony. The jury submitted two questions to the court: "Does [defendant] have to be a 'reasonable person' to be found guilty[?] [¶] What is the definition of 'reasonable[?]' " The court told the jury that the answer was "no" and that reasonable had no definition: "Reasonable is reasonable." It commented: "I'm sure that helped you immensely."
While the validity of this instruction is currently pending in the California Supreme Court in People v. Lemcke, review granted October 10, 2018, S250108, there is no arguable issue concerning it in this case since defendant was photographed at the scene identifying himself to the victim. --------
The jury returned guilty verdicts on both counts after a couple of hours of deliberations. The prosecution sought a four-year prison term. The defense sought probation, which was what the probation department recommended. The court "somewhat reluctantly" placed defendant on probation with a jail term that was deemed served. The probation conditions required him, among other things, to complete a cognitive behavioral therapy program. The court also imposed a $300 restitution fine, a $30 facility fee, and a $40 court operations fee, but it later omitted this fine and this fee upon defendant's request. Defendant timely filed a notice of appeal.
III. NO ARGUABLE ISSUES
"[A]n arguable issue on appeal consists of two elements. First, the issue must be one which, in counsel's professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment." (People v. Johnson (1981) 123 Cal.App.3d 106, 109.) "[A]n arguable issue means an issue of sufficient substance that it is going to result either in a reversal or a modification of the judgment or is going to make new law." (People v. Von Staich (1980) 101 Cal.App.3d 172, 175, fn. omitted.)
We have reviewed the record in this case and have not discovered any issue that has a reasonable potential for success. Accordingly, we find no arguable issues.
IV. DISPOSITION
The order is affirmed.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
DANNER, J.