Filed 9/19/17 P. v. Zuleta CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Jeffrey L. Gunther, Judge. (Retired judge of the Sacramento Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

A jury convicted defendant and appellant, Robert Samir Zuleta, of battery by a prisoner on a nonprisoner. (Pen. Code § 4501.5; count 2.) Defendant thereafter waived a jury trial and admitted an allegation that he had suffered a prior strike conviction. (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).) The court sentenced defendant to an aggregate sentence of six years’ imprisonment, consisting of the following: the midterm of three years on the substantive count, doubled pursuant to the strike prior.

After defendant’s counsel below filed a notice of appeal, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the facts, a statement of the case, and identifying three potentially arguable issues: (1) whether there were any arguable issues related to jury instructions; (2) whether substantial evidence supports the jury’s verdict; and (3) whether the court erred in sentencing defendant. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On February 3, 2015, a correctional officer working at Ironwood State Prison began releasing inmates from the dining facility row by row. When he attempted to release the penultimate row, the inmates continued sitting, talking, and laughing. The officer released the last row, waited 30 seconds, and told the second to last row to leave once again. This time they began to leave.

As one of the men moved past the officer, the inmate mumbled something about “disrespect.” The officer turned toward the man, who threw his tray at the officer; the officer dodged the tray. The officer grabbed the handle of his baton, but the inmate ran toward the officer too fast for him to remove it. The inmate then threw a cup at the officer, which hit him above the left eye. When the inmate arrived at the officer, the officer punched him.

A second inmate ran toward a second officer and began fighting with him. Two other inmates began fighting with the first officer; they jumped on his back. A third officer got out his pepper spray and told the attacking inmate to leave the first officer alone. The third officer then sprayed the attacking inmate. Both officers then assisted one another in handcuffing the attacking inmate.

A fourth officer was in the kitchen, which was visible through a window and accessible through a door adjacent to the dining hall. After they had handcuffed the attacking inmate, the first officer saw multiple inmates in the kitchen punching the fourth officer, who had fallen to the floor. The remaining officers attempted to go through the door to the kitchen to assist the fourth officer; however, they were unable to open the door completely. The first officer could see multiple inmates punching and kicking the fourth officer in the kitchen; he recognized one of the inmates as defendant. The fourth officer was curled into a ball on the floor.

The first officer was able to open the door just enough to get his wrist through so that he could pepper spray in the vicinity of the fight. All the inmates then fled toward the back of the kitchen. The other officers were then able to push the door open and rescue the fourth officer.

The fourth officer testified that he was able to see the altercation between the first officer and the attacking inmate through the window in the door between the kitchen and the dining area. He was then beset upon by two inmates. He fell to the ground, where he assumed the fetal position as he was being kicked and punched by multiple inmates. The fourth officer sustained multiple contusions to his head and chest and bruising on his legs, chest, and back. He was transported via ambulance to the hospital where he was treated in the emergency room.

The People initially charged defendant along with seven other inmates.[1] However, by the time of trial, the other defendants had either had their cases severed or had pled out.

With respect to sentencing, the court found that “the defendant and the others . . . participated in what really was a melee and near riot in this situation.” The court found that the fourth officer “was exposed to great bodily harm. He received blows to his body while he was on the ground trying to protect vital parts of his body from the kicks, blows, and the strikes of the inmates all around him.” In considering “the totality of all the factors,” the court found imposition of the midterm for the substantive offense appropriate.

II. DISCUSSION

We offered defendant an opportunity to file a personal supplemental brief, which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

FIELDS

J.