People v. Connolly CA5 ( 2021 )

Filed 2/1/21 P. v. Connolly 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080036
Plaintiff and Respondent,
(Super. Ct. No. CRF58700)
v.
MICHAEL ROBERT CONNOLLY, JR., OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tuolumne County. Kevin M.
Seibert, Judge.
Lindsey K. Terry, 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 Poochigian, Acting P.J., Franson, J. and Peña, J.
Appointed counsel for defendant Michael Robert Connolly, Jr., 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.) Defendant was advised of his right to file a
supplemental brief within 30 days of the date of filing of the opening brief. Defendant
did not respond. Finding no arguable error that would result in a disposition more
favorable to defendant, we affirm.
BACKGROUND
On December 21, 2018, at about 7:00 p.m., defendant and another man were
drinking whiskey on a bench outside a store. They were yelling loudly in an almost
confrontational manner. An off-duty officer observed the scene and called dispatch.
Deputy Sheriff Shane Daniel Tholcke arrived and approached the two men. He asked
defendant for identification, and defendant told him, “ ‘F*** you.’ ” When Tholcke
asked defendant if he had any weapons, he answered, “ ‘Yeah, I have a straight knife on
me, I’m going to slit your f***ing throat.’ ” Tholcke asked defendant to stand up, and he
again said, “ ‘[F]*** you.’ ” Tholcke grabbed defendant’s wrist while defendant held
onto the bench. Tholcke eventually freed defendant from the bench and swept him onto
the ground, but he continued to resist. The off-duty officer assisted Tholcke in
handcuffing defendant, and the two officers moved him into a safe position so his
breathing was not restricted. Tholcke called an ambulance because defendant had
suffered a cut over his eyebrow when he landed on the ground. Tholcke searched
defendant and found no knife. When the ambulance arrived, defendant was verbally
belligerent and combative toward the ambulance staff. Ultimately, Tholcke had to take
defendant to the hospital because it was unsafe for the ambulance to transport him.
On December 26, 2018, the Tuolumne County District Attorney charged
defendant with felony resisting a police officer (Pen. Code, § 69;1 count 1).
1 All statutory references are to the Penal Code.
2.
On January 25, 2019, defendant waived a preliminary examination, and the
complaint was deemed an information.
On July 31, 2019, after the prosecutor rested, defendant unsuccessfully moved for
an acquittal pursuant to section 1118.1. Defendant then testified in his own defense,
claiming he was not the perpetrator and was not present during the crime. He testified:
“No, I’m not that individual, and I have a phone recording of that arrest and that
individual that was arrested can prove that.” Neither the prosecutor nor defense counsel
had heard of this recording. The jury was cleared from the courtroom, and defendant told
the trial court he would be glad to provide the recording. The court told defendant to go
ahead and play it for the court. Defendant explained that he would need at least the rest
of the afternoon to provide it. Defense counsel informed the court that his office told
defendant to provide everything before the trial began. The court refused to delay the
trial, telling defendant he knew trial was occurring today and he should have provided
everything necessary. The court struck all references to the video. When testimony
resumed, defendant again denied the events and his participation in them.
On cross-examination, the prosecutor introduced a photograph and asked
defendant about it. Defendant identified it as a photograph of his driver’s license. He
then produced his driver’s license from his pocket and confirmed there were no
differences; it was “definitely a picture of [his] driver’s license.”
The prosecutor reopened and recalled Tholcke, who testified that after arresting
defendant that evening, he found defendant’s driver’s license in his pocket. Tholcke
explained that the photograph admitted into evidence was the photograph he took that
evening of defendant’s driver’s license. Tholcke had no doubt defendant was the person
he encountered that evening.
Outside the presence of the jury, the parties discussed jury instructions. Defense
counsel requested instruction on the lesser included offense of a section 148,
subdivision (a)(1) (section 148(a)(1)) violation, which the court denied.
3.
The jury found defendant guilty as charged.
On September 9, 2019, the trial court sentenced defendant to a two-year split
sentence, as requested by defense counsel, one year to be served in county jail and
one year to be served under mandatory supervision.
On September 23, 2019, defendant filed a notice of appeal.
DISCUSSION
When defense counsel requested that the trial court instruct the jury on
section 148(a)(1) as a lesser included offense of section 69, the prosecutor responded that
she was pursuing a conviction under the first of two ways that an offense under
section 69 could be committed, which was different from section 148(a)(1) and did not
qualify as a lesser included offense. She requested only CALCRIM No. 2651, and not
CALCRIM No. 2652. The trial court agreed.
We also agree that under these circumstances, a section 148(a)(1) violation did not
constitute a lesser included offense of section 69 requiring instruction. (See People v.
Smith (2013) 57 Cal.4th 232, 240–245; People v. Kruse (2020) 56 Cal.App.5th 1034,
1046–1051.)
After reviewing the record, we find no arguable issue on appeal that would result
in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
4.