People v. Malekmirzayans CA2/1

Filed 11/23/20 P. v. Malekmirzayans CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B300345

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. GA104426) v.

KHAZHIGH MALEKMIRZAYANS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Suzette Clover, Judge. Affirmed. Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael C. Keller and Charles J. Sarosy, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted defendant Khazhigh Malekmirzayans of assault with a deadly weapon (count 1; Pen. Code,1 § 245, subd. (a)(1)), making a criminal threat (count 3; § 422, subd. (a)), and felony elder abuse (count 4; § 368, subd. (b)(1)). The jury also found true an allegation that he personally used a deadly weapon (a knife) in the commission of counts 3 and 4. (§ 12022, subd. (b)(1).) The court sentenced him to 16 months in prison on the count of making a criminal threat, imposed and stayed the one-year terms for the weapon enhancement, and imposed and stayed the sentences on the remaining counts pursuant to section 654. Because his custody credits at the time of sentencing exceeded the length of his sentence, defendant was released on parole. Defendant contends that the court erred by failing to instruct the jury sua sponte on the crime of misdemeanor elder abuse, a lesser included offense of felony elder abuse. We conclude that any error was harmless and affirm the judgment.