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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115 .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. B 30 4422 (Super. Ct. No. 18F

- 00260 ) ( San Luis Obispo County)

Joshua L. Myers ap peals 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
bo th 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 a n 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. (C ount 4.) Myers
seized the telephone and texted Quigley to meet the m at a Costco parking lot . Myer s informed the others that the meeting wa s 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 Guill en and Myers examined the bags of marijuana. Two of Myers’s friends
then left Myers’s v ehicle 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 fire arm at him and said, “ L e t 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, a nd misdemeanor assault . ( §§ 211, 422, 240.) It also found that Myers personally used a firearm during the3

robbery and committed the crime to bene fit 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 thr ee

- year midterm for robbery, 10 years for the firearm enhancement, and eight months for making criminal threats. The court also impo sed a 180

- day t erm 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 p resentence custody credit. (§§ 1202.4, subd. (b), 1202.45, 1465.8, subd. (a); Go v. Code, § 70373.) Myers appeals and contends that section 654 requires that his eight

- month consecutive term for making criminal threats be

sta yed. (§ 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 omissi on 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 determinatio n of a single physical act “ ‘ might not always be easy to ascertain.’ ” ( Corpening

, at p. 312.)4 A pplication of section 654 to conceded facts is a question of law that the reviewing court considers independently. ( Pe ople 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 simu ltaneous criminal threat of “Let go or I’ll shoot you, fool” supplied the element of force or fear integral to

t he 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
separat e and distinct physical act; the threat was incidental to and facilitated the armed robbery of the marijuana from Quigley. The p arties agree that the con secutive 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 l ower term for the stayed count citing P eople v. Cantrell (2009) 175 C al .A pp.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, tw o years , or three years to

run concurrent ly with the robbery

, the court would be engaging
in a futile exer cise. M yer s w ould not serve such a sentence because we affirmed the robbery count. The law neither does nor require s idle acts. ( Civ

. Code , § 353 2

. ) We order the sentence on the criminal threat stayed [to
become permanently stayed upon serving the sentence for the
rob b ery]. T he trial court shall prepare an amended abstr act of5

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 Genera l, Noah P. Hill and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.