THE PEOPLE v. DEMETRIUS MCDOWELL (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

A jury convicted defendant and appellant Demetrius McDowell of one count of assault by means of force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)(1) ¹ ) and three counts of battery on hospital grounds (§ 243.2, subd. (a)).  The jury was unable to reach a verdict on a charge of criminal threats (§ 422) and the trial court declared a mistrial as to that count.   At sentencing, the trial court dismissed the criminal threats charge pursuant to section 1385, and denied a motion pursuant to section 17, subdivision (b) to reduce defendant's assault conviction to a misdemeanor.   The trial court sentenced defendant to the four-year upper term on his assault conviction and to concurrent one-year terms for defendant's battery convictions.   The trial court awarded defendant 500 days of presentence credit consisting of 250 days of actual custody credit and 250 days of conduct credit, and imposed various fees and fines.

On appeal, defendant's appointed counsel filed an opening brief in accordance with People v. Wende (1979) 25 Cal.3d 436 requesting this court to conduct an independent review of the record to determine if there are any arguable issues.   On December 9, 2010, we gave notice to defendant that counsel had failed to find any arguable issues and that defendant had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wished this court to consider.   Defendant did not file a responsive brief or letter.   We have reviewed the record and affirm the judgment.

BACKGROUND

On October 4, and October 6, 2009, Dr. Joshua Partnow, an emergency room physician at the California Hospital Medical Center, treated defendant for infected urine.   Defendant was in a wheelchair and had a Foley catheter.   On October 6, 2009, when Dr. Partnow attempted to have defendant discharged from the hospital, defendant “very rapidly and aggressively in a threatening manner” got out of his bed and into his wheelchair and yelled, “If you discharge me, I'm going to bomb your car.   I'm going to kill you.”   Dr. Partnow instructed a clerk to call security and the police.

Defendant disconnected the drainage bag from his catheter and waved the bag around, spraying or squirting urine “all over the place.”   The urine struck nurses James Joyce and Andrea Ferrada and medical technician Carlos Calacin.   Joyce, Calacin, and another medical technician attempted to subdue defendant to prevent him from further spraying urine and to detain him until the police arrived.   During that encounter, as defendant's wheelchair tipped over, defendant bit Calacin on the wrist.   Defendant would not let go of Calacin's wrist, and Calacin had to pull his arm from defendant's mouth.   Defendant “actually took skin,” and his bite left a large scar on Calacin's wrist.

DISCUSSION

We appointed counsel to represent defendant in this appeal.   After examining the record, counsel filed an opening brief asking this court to independently review the record in accordance with People v. Wende, supra, 25 Cal.3d 436.   On December 9, 2010, we gave notice to defendant that counsel had failed to find any arguable issues and that defendant had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wished this court to consider.   Defendant did not submit a brief or letter.   We have examined the entire record and are satisfied that defendant's counsel has fully complied with counsel's responsibilities and that no arguable issues exist.   (People v. Wende, supra, 25 Cal.3d at p. 441.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

We concur:

FOOTNOTES

FN1. All statutory citations are to the Penal Code unless otherwise noted..  FN1. All statutory citations are to the Penal Code unless otherwise noted.

ARMSTRONG, Acting P. J. KRIEGLER, J.