People v. Mills CA2/8

Filed 7/16/14 P. v. Mills CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B247127

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA088677) v.

KENNETH WAYNE MILLS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Cynthia Ravis, Judge. Affirmed, as modified.

Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, William H. Shin and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.

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Kenneth Wayne Mills appeals from his conviction for mayhem and assault. He contends that he was unlawfully convicted of both a greater and necessarily included lesser offense for the same conduct. He also contends the abstract of judgment misstates the court’s pronouncement of sentence. Respondent Attorney General agrees with appellant’s contentions. Accordingly, we will modify the court’s judgment, and as modified, affirm.

FACTS AND PROCEDURAL HISTORY

Appellant Kenneth Wayne Mills and victim Robert Thayer were patients and roommates at Metropolitan State Hospital in Norwalk, California. In the afternoon of March 3, 2005, appellant was talking loudly with another patient in their bedroom when Thayer told appellant to be quiet so that Thayer could sleep. Appellant responded, “Well, you mother F, I’ll get you for this. And you can’t tell me what to do.” Thayer went to the nurse’s aid station down the hall to report appellant’s threat. Thayer then returned to his room and began putting on his shoes. As he was doing so, appellant attacked him by swinging his right fist into Thayer’s left eye. Thayer believed appellant struck him with a key because he felt something penetrate his eye. Thayer immediately went to the nurse’s station and reported that appellant had hit him. Thayer’s eye injury resulted in his going blind in the eye and its surgical removal. At trial, appellant testified Thayer attacked him first and that Thayer injured his eye when he fell against the corner of a locker as they scuffled. The People charged appellant with aggravated mayhem (Pen. Code, § 205; count 1)1 and assault with a deadly weapon (§ 245, subd. (a)(1); count 2).2 As to the assault charge, it was alleged that appellant personally inflicted great bodily injury