People v. Mitchell

Filed 10/19/2016 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B269373 (Super. Ct. No. BA438233) Plaintiff and Respondent, (Los Angeles County)

v.

JOSHUA MITCHELL,

Defendant and Appellant.

Joshua Mitchell appeals from the judgment entered after a 1 jury convicted him of simple assault (count 1; Pen. Code, § 240) , assault with a deadly weapon (scissors; count 2; § 245, subd. (a)(1)), second degree robbery with personal use of a deadly weapon (scissors; count 3; §§ 212.5; 12022, subd. (b)(1)), battery on a peace officer (count 4; § 243, subd. (b)), and criminal threats (count 5; § 422, subd. (a)). Appellant admitted two prior prison term enhancements (§ 667.5, subd. (b)) and was sentenced to six years state prison. We conclude that the trial court erred in not staying the one-year sentence on count 2 for assault with a deadly weapon (ADW) pursuant to section 654. We reverse and remand for sentencing.

1 All further statutory references are to the Penal Code.

Facts On the morning of July 18, 2015, appellant entered the L.A. Smoke Shop with a wood stick. The store clerk, Marawan Abdelfattah, had problems with appellant in the past and said: “Sir, you cannot be here. The owner said you’re not welcome here.” Appellant brandished the stick and said “F[uck] you and the owner.” Appellant hit Abdelfattah on the arm, breaking the stick. Appellant then pushed over a candy display case and ran out the store laughing. Appellant entered a second time three minutes later as Abdelfattah was picking up the candy. He grabbed one or two candy boxes and ran out the store laughing. Appellant re-entered the store for a third time. He was not laughing this time. He had a pair of scissors. Jabbing the scissors at Abdelfattah, appellant said, “I will fuckin’ kill you.” Appellant pointed the scissor blades at Abdelfattah and said “Come, come, come.” Abdelfattah pushed appellant outside the store and backed up to a locked, secure area inside the store. Appellant advanced with the scissors. Abdelfattah threatened to call the police, locked himself in the secure area, and pretended to call 911. Appellant grabbed two boxes of chips, said “That’s what you get,” and left. 2