People v. McIntyre CA2/2

Filed 3/3/16 P. v. McIntyre CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B263644

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA403144) v.

DELL MCINTYRE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Barbara R. Johnson, Judge. Affirmed with modifications.

James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer and Paul S. Thies, Deputy Attorneys General, for Plaintiff and Respondent.

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Dell McIntyre (defendant) appeals his convictions for second-degree robbery and assault by means likely to inflict great bodily injury as well as the resulting 27-year prison sentence. Defendant argues that the trial court should have given a self-defense instruction, should have stayed the sentence on his assault conviction under Penal Code 1 section 654, and miscalculated the assault sentence. We reject defendant’s first argument, but find merit with his second and third arguments. We consequently affirm his convictions and order that his sentence be reduced to 23 years with a stayed consecutive sentence of two years on the assault count. FACTS AND PROCEDURAL BACKGROUND Defendant walked up to Drew Michael (Michael), said “give me your shit,” and “snatched” a bag “out of [Michael’s] hand” containing Michael’s prescription medication. As defendant walked away, Michael started to follow. When Michael was about three to six feet behind defendant, Michael said, “You stole my medication.” Michael never touched defendant. Defendant “sudden[ly]” turned around and punched Michael with his fists multiple times; this knocked Michael to the ground, broke his nose, and caused a laceration to his chin that necessitated eight stitches. The People charged defendant with (1) second-degree robbery (§ 211), and (2) assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)). As to both counts, the People alleged that defendant had personally inflicted great bodily injury (§ 12022.7, subd. (a)). The People further alleged that defendant’s 2002 attempted robbery conviction, his 1999 Massachusetts armed assault conviction, and his 1987 Massachusetts robbery conviction constituted “strikes” under our “Three Strikes” law (§§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i)), prior “serious” or “violent” felonies (§ 667, subd. (a)(1)), and prior prison terms (§ 667.5, subd. (b)). The People alleged six other prior prison terms as well.