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
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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.


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            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.
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            Appellant re-entered the store a fourth time, took four or five
sodas, and ran back outside. Abdelfattah called 911 and reported that
“someone tried to hit me with the scissors and . . . and just [stole] a
bunch of stuff from the store.”
            Appellant was arrested a few blocks away from the store.
He resisted arrest, fell to the ground, and kicked and yelled, “Fuck you.
I’m not going to jail.” Appellant spit on an officer and bit another
officer.



     2
         Appellant only used the scissors on the third entry.


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                                Section 654
            Appellant contends that the trial court erred in not staying
the sentence on count 2 for ADW with scissors. Selecting count 3
(robbery) as the principle term, the trial court imposed a three-year
midterm sentence plus one year for use of a deadly weapon (the
scissors)
(§ 12022, subd. (b)(1)) and one year on the prior prison enhancement
(§ 667.5, subd. (b)). On count 2 for ADW, the trial court imposed a
consecutive one year sentence (one-third the midterm). The trial court
stayed the sentence on count 5 (criminal threats) and imposed
concurrent sentences on count 1 (simple assault, 180 days county jail)
and count 4 (battery on an officer, 364 days county jail).
            Section 654 prohibits multiple punishment for a single act
that violates different provisions of law. (People v. Jones (2012) 54
Cal.4th 350, 358; People v. Mesa (2012) 54 Cal.4th 191, 199 [defendant
cannot be punished twice for single act even if defendant harbored
multiple criminal objectives].) “‘It is the singleness of the act and not of
the offense that is determinative.’ Thus the act of placing a bomb into
an automobile to kill the owner may form the basis for a conviction of
attempted murder, or assault with intent to kill, or malicious use of
explosives. Insofar as only a single act is charged as the basis for the
conviction, however, the defendant can be punished only once.
[Citation.]” (Neal v. State of California (1960) 55 Cal.2d 11, 19,
disapproved on other grounds in People v. Correa (2015) 54 Cal.3d 331,
334.)
            Here the armed assault with scissors was incidental to and
facilitated the armed robbery with scissors. The jury convicted
appellant of robbery and found that he personally used a deadly weapon
(the scissors) in the commission of the robbery. In People v. Nunez
(2012) 210 Cal.App.4th 625, 629, we held that use of a weapon in the
commission of an ADW to accomplish a robbery and taking of a vehicle,
could not be separately punished. We said that “the two crimes were

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committed so close in time that they were contemporaneous if not
simultaneous.” (Ibid.; compare People v. Finney (2012) 204 Cal.App.4th
1034, 1038.) Appellant’s single act of threatening the victim with
scissors satisfied the ADW weapon requirement as well as the force or
fear element of the robbery. Use of the scissors also satisfied the
weapon use enhancement.
             The Attorney General argues that section 654 does not bar
multiple punishment where the defendant commits two crimes in
pursuit of two independent objectives even if they are simultaneous.
(People v. Latimer (1993) 5 Cal.4th 1203, 1212.) Where “single act”
circumstances exist, as is the case here, the “single act” test supplants
“the intent and objective test” discussed in Neal v. State of California,
supra, 55 Cal.2d at p. 19 and People v. Latimer, supra, 5 Cal.4th at p.
1208. “Our case law has found multiple criminal objectives to be a
predicate for multiple punishment only in circumstances that involve,
or arguably involve, multiple acts. The rule does not apply where, as
here . . . the multiple convictions at issue were indisputably based upon
a single act.” (People v. Mesa, supra, 54 Cal.4th at p. 199.)
             The Attorney General argues that appellant assaulted
Abdelfattah with the scissors and then formed the intent to rob the
store. But the ADW and robbery was an indivisible transaction
involving the same scissors that never left appellant’s hands. Appellant
assaulted Abdelfattah with the scissors, grabbed two boxes of chips, and
said “That’s what you get.” “[T]he fact that one of the crimes may have
been an afterthought does not permit multiple punishment where there
is an indivisible transaction. [Citation.]” (People v. Bauer (1969) 1
Cal.3d 368, 377.)
             It has long been recognized that where a defendant is
convicted of robbery and other crimes incidental to the robbery such as
assault, section 654 precludes punishment for both crimes. (See, e.g.,
People v. Ridley (1965) 63 Cal.2d 671, 677-678 [robber shot store
proprietor before taking store property]; People v. Logan (1953) 41

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Cal.2d 279, 290 [defendant hit victim with baseball bat before taking
her purse]; People v. Medina (1972) 26 Cal.App.3d 809, 824 [assault was
means of committing the robbery and incidental to the robbery].)
             Relying on People v. Cleveland (2001) 87 Cal.App.4th 263,
the Attorney General argues that section 654 permits multiple
punishment where the assault is so “extreme and gratuitous” that it
goes far beyond what was needed to accomplish the robbery. There, the
defendant beat a 66-year-old feeble victim unconscious with a two-by-
four piece of wood and took his Walkman radio. (Id., at p. 267.)
“Cleveland beat [the victim] senseless, such that the attempted murder
cannot be viewed as merely incidental to the robbery.” (Id., at p. 272.)
This is not the case here. Here there was no “extreme and gratuitous
violence.”
             The Attorney General’s reliance upon People v. Douglas
(1995) 39 Cal.App.4th 1385 is also misplaced. There, the defendant
robbed the victim and forced her to drive to another location where he
raped her. The Court of Appeal concluded that multiple punishment
may be imposed where the defendant commits two crimes (kidnapping
for robbery and kidnapping for rape) in pursuit of two independent
objectives, even if they are simultaneous. (Id., at p. 1394.) Unlike
Douglas, the ADW was not a gratuitous violent act or committed after
the robbery. (See, e.g., In re Chapman (1954) 43 Cal.2d 385, 390
[assault and robbery separately punishable when robbery complete
before assault]; People v. Sandoval (1994) 30 Cal.App.4th 1288, 1299-
1300 [gratuitous violent act after attempted robbery completed, is not
incidental to attempted robbery]; People v. Coleman (1989) 48 Cal.3d
112, 162-163 [assault not incidental to robbery when it is committed
after the robbery is complete and can be attributed to separate
objective].)
             Section 654 allows multiple convictions arising out of a
single act or indivisible course of conduct, but bars multiple punishment
for those convictions. (People v. Mesa, supra, 54 Cal.4th at p. 195.)

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Section 654, subdivision (a) states in pertinent part: “An act or
omission that is punishable in different ways by different provisions of
law shall be punished under the provision that provides for the longest
potential term of imprisonment . . .” which, in this case is the robbery
count.
                                Disposition
            The consecutive one-year sentence on count 2 for ADW is
reversed and the matter is remanded for resentencing. “When a trial
court resentences a defendant after reversal on appeal, it clearly has
discretion to increase or decrease elements of the sentence (although
there may be limits on its ability to increase the aggregate sentence).
[Citation.]” (People v. Garcia (1995) 32 Cal.App.4th 1756, 1769.) The
judgment is otherwise affirmed.
            CERTIFIED FOR PUBLICATION.



                                             YEGAN, Acting P. J.



We concur:



             PERREN, J.



             TANGEMAN, J.




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                       Leslie A. Swain, Judge

                Superior Court County of Los Angeles

                   ______________________________



           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, Senior Assistant
Attorney General, Stephanie C. Brenan, Supervising Deputy Attorney
General, Charles S. Lee, Deputy Attorney General, for Plaintiff and
Respondent.




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