People v. Mitchell

*351 Joshua Mitchell appeals from the judgment entered after a 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.

*608 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]

*352 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…