P. v. Mitchell
Defendant Timothy Leon Mitchell, an inmate in state prison, resisted the efforts of correctional officers to get him to return to his cell. When an officer finally used pepper spray on defendant, a cellmate began fighting with Officer Adams. As Officer Sloss-Peck ran to help Adams, she slipped and fell, landing on her back with her head hitting the concrete floor. When Sloss-Peck tried to get up, she was tackled from behind by defendant, who put her in a head lock. After other officers helped her to handcuff defendant, Sloss-Peck sought treatment for pain in her neck and back. According to her, she had an operation on [her] neck as a result of this incident and took a medical retirement from her job as a correctional officer.
A jury found defendant guilty of battery on a nonconfined person (Pen. Code, 4501.5) and resisting an officer (Pen. Code, 69). He was sentenced to the upper term of four years in state prison (doubled due to his prior serious felony conviction) for the battery conviction, and to a concurrent upper term of three years (doubled due to his prior conviction) for the resisting conviction.
On appeal, defendant contends (1) imposing the upper term for the battery conviction based on aggravating circumstances not submitted to the jury violated the Sixth Amendment of the United States Constitution as interpreted in Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (hereafter Cunningham), and (2) failing to stay the sentence for the resisting conviction violated Penal Code section 654 (further section references are to the Penal Code unless otherwise specified). Court conclude that the sentences must be vacated and that the matter must be remanded to the trial court for resentencing.
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