People v. McKinney CA2/6

Filed 5/14/24 P. v. McKinney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B324530 (Super. Ct. No. 19F-06132) Plaintiff and Respondent, (San Luis Obispo County)

v.

BRANDON ERNEST MCKINNEY,

Defendant and Appellant.

Brandon Ernest McKinney appeals from a judgment following a trial at which the jury found him guilty of battery by a prisoner of a non-prisoner (Pen. Code1, § 4501.5; count 2) and resisting an executive officer (§ 69; count 3). Appellant contends the trial court prejudicially erred by failing to instruct on the lesser included offense of simple assault (§ 240) as to count 3. We will affirm.

1 All undesignated statutory references are to the Penal

Code.

FACTUAL AND PROCEDURAL BACKGROUND On April 18, 2019, Jane Doe was a recreational therapist for mentally ill inmates at the California Men’s Colony (CMC). As Doe prepared for a therapy group in a T.V. room, she saw appellant coming toward her. Before Doe could ask any questions, appellant pressed his body up against hers, pushed her against the wall, put his open mouth over her mouth and face, and moved his hands on her shoulders and upper body. Doe could not reach her personal alarm device or whistle because of how appellant’s body was pressed against hers. Doe tried to scream, but appellant put his mouth over hers. Eventually, Doe bent her head so she could scream. Doe kept trying to push appellant off her, but he continued to push her hard against the wall. Appellant and Doe slid down the wall onto the ground, and appellant got on top of Doe. Moments earlier, Correctional Officer Nicholas Mines had opened a gate when he saw appellant running toward him. Officer Mines backed up from the gate because he did not want appellant to charge him; he ordered appellant to get down several times. Appellant disobeyed and ran to the T.V. room. Officer Mines saw appellant grab Doe and force her to the ground. Appellant was on top of Doe, kissing her face and neck. Officer Mines grabbed appellant by the back of his shirt and pants to pull him off Doe. Officer Mines forced appellant to the ground face down in a prone position. Appellant was thrashing and resisting, so Officer Mines put his knee into appellant’s lower back area and put his hands on appellant’s shoulders. Despite Officer Mines’s orders to stop resisting and submit to handcuffs, appellant continued to resist by thrashing his hands and body, as well as kicking his legs. Appellant was trying to bring his hands underneath his body to push himself off the ground.