Filed 11/8/18 P. v. Azlin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge.

Matthew J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

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A jury convicted appellant Kenneth D. Azlin of battery of a nonconfined person (Pen. Code, § 4501.5)[1] and found true allegations that Azlin had a prior conviction within the meaning of the “Three Strikes” law. Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On August 10, 2017, the Kings County District Attorney filed an information charging Azlin with battery of a nonconfined person and alleging that he had a prior conviction within the meaning of the Three Strikes law.

A jury trial in this matter began on October 18, 2017. The evidence at trial established that on November 7, 2015, Azlin was an inmate at the Substance Abuse Treatment Facility at Corcoran State Prison. On that date, Correctional Officer Jaylord Permejo went to Azlin’s cell to escort him to a scheduled phone call. After conducting an unclothed body search and handcuffing Azlin’s hands behind his back, Permejo grabbed Azlin’s right arm with his left hand and began walking a step behind him on Azlin’s right side. Azlin then turned slightly right, kicked backwards with his right leg “like a mule kick,” striking Permejo on the knee.

The kick caused Permejo to take a step back, but he managed to hold on to Azlin’s right forearm as Azlin flailed his arms and attempted to run away. Permejo then grabbed Azlin’s left arm with his right hand and with his body weight, forced Azlin to the ground. Permejo activated his personal alarm on his belt and another officer responded and assisted him in handcuffing Azlin, who was then escorted to a holding cell. Permejo began feeling pain in his knee a few minutes after he was kicked and his knee continued to be very painful for the next four days. He eventually sought medical treatment and received medication for the pain, which he took for thirty days.

On November 17, 2017, the court sentenced Azlin to a doubled middle term of six years, consecutive to the term Azlin was already was serving.

Azlin’s appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) However, in a confusing and rambling letter filed on April 25, 2018, Azlin appears to contend he received ineffective assistance of counsel because defense counsel did not: (1) “see” Azlin “off the record”; (2) file a Pitchess[2] motion; (3) properly identify a witness who misrepresented his identity; or (4) subpoena Permejo’s medical records or impeach him on his account of the injury he suffered. Azlin further contends the court should have instructed on misdemeanor battery.

“To establish incompetence, petitioner must show that counsel’s performance was deficient. Counsel is deficient if he or she fails to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates. Petitioner must also show that it is reasonably probable that a determination more favorable to defendant would have resulted in the absence of counsel’s failings. [Citation.]

“Generally, a reviewing court must affirm the judgment unless petitioner demonstrates that the record affirmatively discloses that counsel’s acts or omissions cannot be explained on the basis of any knowledgeable choice of tactics.” (People v. Shoals (1992) 8 Cal.App.4th 475, 501.)

Azlin has not demonstrated that defense counsel’s failure to file a Pitchess motion, subpoena Permejo’s medical records, or attempt to impeach the officer cannot be explained on the “basis of any knowledgeable choice of tactics.” Further, there is no support in the record for his claims that his defense counsel never met with him “off the record” or that a witness misrepresented his identity, and derivatively, that defense counsel did not properly identify this witness for the court. Thus, we reject Azlin’s ineffective assistance of counsel claim.

Moreover, “[g]enerally, ‘[a] party is not entitled to an instruction on a theory for which there is no supporting evidence.’ ” (People v. Tufunga (1999) 21 Cal.4th 935, 944.) Although the gravamen of the crime described in section 4501.5 generically can be described as a battery, what distinguishes this crime from its more generic counterpart is the particular relationship the perpetrator and victim bear to each other. The perpetrator is a prisoner and the victim is not a prisoner. The status of the perpetrator and victim is, in all but the most unusual of circumstances, fixed by law and not a matter of legal contention. There was no factual basis upon which a jury possibly could have found that Azlin was not a prisoner or that his victim, Permejo, was a prisoner.

Section 4501.5 describes a type of assault or battery that can be charged where the perpetrator is a prisoner and the victim is not. Where, as here, the relationship of the perpetrator and victim is legally determinable as being that of prisoner and nonprisoner, respectively, simple battery is not a lesser included offense; it is a completely separate crime that has no pertinence to the proceeding. There is no legal basis upon which Azlin’s jury could have returned a verdict of not guilty as to the charge of battery of a nonconfined person but guilty as to a charge of simple assault or battery. Thus, there is also no merit to Azlin’s contention that the court should have instructed the jury on simple battery.

Further, following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.

DISPOSITION

The judgment is affirmed.