People v. Colon CA5

Filed 2/18/25 P. v. Colon CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F086570 Plaintiff and Respondent, (Super. Ct. No. DF013380A) v.

JOSE COLON, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. Heather E. Shallenberger, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Peña, J. and Meehan, J.

Counsel for appellant Jose Colon (appellant) has asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Counsel filed an opening brief setting forth the case’s relevant facts. On October 25, 2024, appellant was advised of his right to file a supplemental brief within 30 days. To date, we have received no communication from appellant. Finding no arguable error that would result in a disposition more favorable to appellant, we affirm the judgment. The following is a brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) Factual Background On February 9, 2017, appellant was an inmate in the California penal system. On that day, defendant’s housing unit was subject to a “mass search,” i.e., a search in which every inmate and cell are searched. Correctional Officer Ardath Downey went to defendant’s cell and opened the food port. Through the opened food port, Downey twice ordered defendant to strip down to his underwear and shower shoes and step out of his cell so that a search could be conducted. According to Downey, defendant wanted to know why he had to strip and come out of his cell, refused to comply with her orders, and finally yelled: “ ‘F[***] you, you ugly monster-looking [b****]. I will f[***]ing kill you. Open up this door and let me out, and I will bash your f[***]ing head into the cement ground. Open the door and I will kill you, [b****]. I will pull your brains out of your f[***]ing skull. Open the door and let me out, you scary [a**] b[****]. You think you’re all that, but you’re nothing but a house n[***]er. How does it feel to be a house n[***]er?’ ” Downey testified that defendant was visibly upset and was looking her in the eyes. Downey was afraid and closed the food port because she believed defendant was threatening her. Downey did not search defendant’s cell because she did not feel it was safe to do so and reported defendant’s actions to her supervisor. Downey was