People v. Clarke CA2/6

Filed 5/23/23 P. v. Clarke CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B319821 (Super. Ct. No. 21F-08938) Plaintiff and Respondent, (San Luis Obispo County)

v.

KELLEN JOHN CLARKE,

Defendant and Appellant.

Kellen John Clarke appeals the judgment entered after a jury convicted him of making criminal threats (Pen. Code,1 § 422, subd. (a)). The trial court sentenced him to two years in state prison. Appellant raises claims of insufficient evidence and prosecutorial misconduct. We affirm.2

Unless otherwise noted, all statutory references are to the 1

Penal Code.

Appellant also filed an in pro. per. petition for writ of 2

habeas corpus claiming that the trial court erred in denying his

FACTS AND PROCEDURAL HISTORY On the night of December 16, 2021, appellant went to a bar in San Luis Obispo. Bar employee Daniel Wandzel recognized appellant from a recent prior occasion when he had been asked to leave the bar due to “aggressive and . . . inappropriate behavior.” After Wandzel sold appellant a beer, bar employee Chris Woloch saw appellant “very rapid[ly] . . . walking around the bar.” Appellant was playing pool when another bar patron told Wandzel and Woloch that appellant was acting aggressively and had called the patron’s partner “a slut or a skank or something.” Woloch approached appellant and told him to leave. As appellant was walking out of the bar, Wandzel could tell he was upset and saw him “throw[] a couple of looks back over his shoulder that definitely caused some concern.” Wandzel told Woloch he was going to “go stand out on the patio and keep an eye on that entrance for a couple of minutes” because he “had an uneasy feeling about” appellant and wanted “to make sure that he didn’t try to come back in.” About three minutes later, appellant returned and told Wandzel he wanted to go inside to retrieve his phone. Wandzel responded that appellant was not welcome inside the bar and offered to look for his phone. Appellant became aggressive, tried to enter the bar, and said he was going to call the police. Wandzel asked appellant how he was going to call the police without his phone. While keeping one hand in his pocket,