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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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has not been certified for publication or ordered published for purposes of rule 8.1115.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,

 Plaintiff and Respondent,

v.

JOSHUA L. MYERS,

 Defendant and Appellant.

2d Crim. No. B304422

(Super. Ct. No. 18F-00260)

(San Luis Obispo County)

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) 

1 All statutory references are to the Penal Code unless 

stated otherwise.
2

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 
3

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.)
4

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 
5

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.
6

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.