People v. Myers CA2/6 ( 2021 )

Filed 1/27/21 P. v. Myers CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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has not been certified for publication or ordered published for purposes of rule 8.1115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 SIX
THE PEOPLE, 2d Crim. No. B304422
(Super. Ct. No. 18F-00260)
Plaintiff and Respondent, (San Luis Obispo County)
v.
JOSHUA L. MYERS,
Defendant and Appellant.
Joshua L. Myers appeals a judgment following conviction of
second degree robbery with a finding of personal firearm use and
crime committed to benefit a criminal street gang, making
criminal threats, and misdemeanor assault. (Pen. Code, §§ 211,
12022.53, subds. (b) & (e)(1)(A), 422, 240.)1 We modify the
sentence and order the sentence on the charge of making criminal
threats stayed pursuant to section 654. (People v. Mitchell (2016)
All statutory references are to the Penal Code unless
1
stated otherwise.
4 Cal.App.5th 349, 354 [section 654 precludes punishment for
both robbery and any crime incidental to the robbery].)
FACTUAL AND PROCEDURAL HISTORY
On December 11, 2017, Myers, his three friends, and Jose
Montes Guillen were at a park in Grover Beach. Myers noticed
Guillen looking at an image of Zach Quigley on his cellular
telephone. Quigley, a delivery driver for a medical marijuana
delivery service, held several bags of marijuana in the
photograph.
Myers questioned Guillen regarding the photograph.
Guillen closed his telephone but reopened it when Myers pressed
what felt like a revolver against his body. (Count 4.) Myers
seized the telephone and texted Quigley to meet them at a Costco
parking lot. Myers informed the others that the meeting was a
“set up to rob [Quigley].”
Quigley and his friend R.J. met the group at the parking
lot. Guillen and Myers entered the backseat of Quigley’s vehicle.
Quigley exhibited the types of marijuana for sale as Guillen and
Myers examined the bags of marijuana. Two of Myers’s friends
then left Myers’s vehicle and stood near Quigley’s vehicle. One of
the men held a machete or sword. Quigley attempted to retrieve
the marijuana that Myers held, but Myers pointed a firearm at
him and said, “Let go or I’ll shoot you, fool.” Quigley released his
hold on the marijuana bags. Guillen and Myers then fled with
the marijuana. Prior to meeting Quigley, Myers had examined
his firearm to be sure it was loaded. (Counts 1 and 2.)
The jury convicted Myers of second degree robbery, making
criminal threats, and misdemeanor assault. (§§ 211, 422, 240.)
It also found that Myers personally used a firearm during the
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robbery and committed the crime to benefit a criminal street
gang. (§ 12022.53, subds. (b) & (e)(1)(A).)
The trial court sentenced Myers to 13 years 8 months in
prison, consisting of a three-year midterm for robbery, 10 years
for the firearm enhancement, and eight months for making
criminal threats. The court also imposed a 180-day term for the
misdemeanor assault to be served concurrently. (§ 240.) The
court imposed a $9,000 restitution fine, a $9,000 parole
revocation restitution fine, an $80 court operations assessment,
and a $60 criminal conviction assessment, and awarded Myers
449 days of presentence custody credit. (§§ 1202.4, subd. (b),
1202.45, 1465.8, subd. (a); Gov. Code, § 70373.)
Myers appeals and contends that section 654 requires that
his eight-month consecutive term for making criminal threats be
stayed. (§ 422; People v. Mitchell, supra, 4 Cal.App.5th 349, 353-
354 [defendant may not be punished separately for second degree
robbery and another crime (assault) based upon same act].) The
Attorney General concedes.
DISCUSSION
Section 654, subdivision (a) provides: “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, but in no case shall the
act or omission be punished under more than one provision.”
Section 654 prohibits multiple punishment for a single act that
violates different provisions of law. (People v. Corpening (2016) 2
Cal.5th 307, 311; People v. Mitchell, supra, 4 Cal.App.5th 349,
352-353 [singleness of act is determinative].) The determination
of a single physical act “ ‘might not always be easy to ascertain.’ ”
(Corpening, at p. 312.)
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Application of section 654 to conceded facts is a question of
law that the reviewing court considers independently. (People v.
Corpening, supra, 2 Cal. 5th 307, 312.) A section 654 claim is not
waived by the failure to object at sentencing. (People v. Hester
(2000) 22 Cal.4th 290, 295 [failure to apply section 654 results in
an unauthorized sentence].)
Here Myers’s simultaneous criminal threat of “Let go or I’ll
shoot you, fool” supplied the element of force or fear integral to
the robbery conviction. (§ 211 [robbery is “the felonious taking of
personal property in the possession of another, from his person or
immediate presence, and against his will, accomplished by means
of force or fear”].) There is no evidence that the threat was a
separate and distinct physical act; the threat was incidental to
and facilitated the armed robbery of the marijuana from Quigley.
The parties agree that the consecutive term for count 2
must be reversed and the matter remanded for resentencing.
(People v. Mitchell, supra, 4 Cal.App.5th 349, 355.)
The People point out that the trial court has discretion to
choose the upper, middle, or lower term for the stayed count
citing People v. Cantrell (2009) 175 Cal.App.4th 1161,1164. True
enough, but here remand would be an unnecessary drain on
judicial, defense, and prosecution resources. Whatever sentence
the court would choose, 16 months, two years, or three years to
run concurrently with the robbery, the court would be engaging
in a futile exercise. Myers would not serve such a sentence
because we affirmed the robbery count. The law neither does nor
requires idle acts. (Civ. Code, § 3532.)
We order the sentence on the criminal threat stayed [to
become permanently stayed upon serving the sentence for the
robbery]. The trial court shall prepare an amended abstract of
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judgment accordingly and forward the amended abstract to the
Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
PERREN, J.
TANGEMAN, J.
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Matthew G. Guerrero, Judge
Superior Court County of San Luis Obispo
______________________________
Adrian Dresel-Velasquez, 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, Noah P. Hill and Scott A. Taryle, Deputy
Attorneys General, for Plaintiff and Respondent.
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