A Palo Alto man Tuesday was convicted of mayhem for biting a man's ear off during a drunken fight over stolen cigarettes outside a Redwood City bar last year.

Joshua McGriff, 40, now faces up to 24 years in state prison due to a prior conviction for mayhem in 2007, in which McGriff was found guilty of severely biting his then-girlfriend's face during a domestic dispute, San Mateo County District Attorney Steve Wagstaffe said.

"This is the only case I can remember in San Mateo County that a defendant has been convicted of a second mayhem charge," Wagstaffe said.

Mayhem differs from assault due to the injuries suffered, Wagstaffe said. Inflicting mayhem on a victim results in "loss of limb" or disfigurement.

At around 1:45 a.m. on June 10, 2013, McGriff, a crowd of patrons and the victim were standing outside the Underground Bar at 2650 Broadway.

According to Deputy District Attorney Kecia Lind, the victim walked back inside the bar to use the bathroom or pay a bill, leaving his cigarettes and a lighter outside.

When he returned, his cigarettes were gone.

The victim asked McGriff for a cigarette and recognized his missing lighter in the defendant's hand, Lind said.

He confronted McGriff and a push-and-shove fight ensued, Lind said.

"Things were happening very quickly," Lind said in her closing statement, adding that both men later admitted to being intoxicated.


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With a crowd of witnesses surrounding the fight, the victim had McGriff restrained in a bear hug and refused to let him go, Lind said.

McGriff -- who was not injured in the scuffle -- then bit off a "substantial portion" of the victim's ear and used his teeth to tear the back of the ear from the victim's head, Lind said.

"He did not reasonably need to bite the victim's ear in order to get away," Lind said.

Defense attorney Connie O'Brien said that the constrained McGriff had acted in self-defense, and that the victim -- who was "unbelievably intoxicated" -- was the main aggressor.

McGriff wanted "nothing other than to be released" and was in danger of being seriously injured, O'Brien said.

As both the defense and prosecution had agreed to go to trial without a jury, Superior Court Judge Mark Forcum was tasked with reaching a verdict.

Forcum disagreed with the defense argument and said the amount of force used by McGriff in biting off the victim's ear was clearly excessive and caused permanent disfigurement.

"He was not being hit, punched, choked ... there was no weapon present," Forcum said. "He was in a bear hug."

Forcum said McGriff was well aware of the significant injury caused by a bite due to the prior attack on his ex-girlfriend.

"The defendant knew what kind of damage that biting could result in," he said. "It's exactly the same thing that happened here."

In finding the defendant guilty, Forcum called McGriff a "serious threat to society" and raised his bail from $75,000 to $200,000.

McGriff, wearing yellow-and-orange jail clothes, remained expressionless throughout the proceeding. He is scheduled to be sentenced in Redwood City on April 2 at 9 a.m.



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