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People v. Mitchell

California Court of Appeals, Second District, Sixth Division

October 19, 2016

THE PEOPLE, Plaintiff and Respondent,
v.
JOSHUA MITCHELL, Defendant and Appellant

          Superior Court of Los Angeles County, No. BA438233, Leslie A. Swain, Judge.

Page 350

[Copyrighted Material Omitted]

Page 351

         COUNSEL

         Kevin D. Sheehy, 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, Assistant Attorney General, Stephanie C. Brenan and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

         Opinion by Yegan, Acting P. J., with Perren and Tangeman, JJ., concurring.

          OPINION

          [208 Cal.Rptr.3d 607] YEGAN, Acting P. J.

          Joshua Mitchell appeals from the judgment entered after a jury convicted him of simple assault (count 1; Pen. Code, § 240),[1] 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 in 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.

         [208 Cal.Rptr.3d 608]Facts

         On the morning of July 18, 2015, appellant entered the L.A. Smoke Shop with a wooden stick. The store clerk, Marawan Abdelfattah, had 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]

Page 352

you and the owner." Appellant hit Abdelfattah on the arm, breaking the stick. Appellant then pushed over a candy display case and ...


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