People v. Myers CA3

Filed 9/8/20 P. v. Myers CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (El Dorado) ----

THE PEOPLE, C089579

Plaintiff and Respondent, (Super. Ct. No. S18CRF0205)

v.

DUSTIN THOMAS MYERS,

Defendant and Appellant.

A jury found defendant Dustin Thomas Myers guilty of assault on a peace officer, removing a weapon from a peace officer, and resisting an executive officer. The trial court sentenced defendant to a two-year split sentence for the removing a weapon conviction, with concurrent sentences for the other two offenses. On appeal, defendant contends the trial court should have stayed execution of the sentences for the assault on a peace officer and resisting an executive officer offenses under Penal Code section 654,1

1 Undesignated statutory references are to the Penal Code.

1

rather than running them concurrent. We agree with respect to the assault on a peace officer conviction, modify the judgment, and affirm the judgment as modified. FACTUAL AND PROCEDURAL BACKGROUND One evening, a man noticed defendant wandering around a grocery store parking lot. As the man was backing his car out of a parking spot, defendant tried to get into the backseat of the car. The doors were locked so defendant was not able to get in. As this was happening, Officer Christopher Webber pulled into the parking lot in his police car. The officer was responding to a report of a drunk individual in public matching defendant’s description. Officer Webber believed he was witnessing an attempted carjacking, so he got out of his car and yelled at defendant to “[c]ome here. Stop right there.”2 The officer was holding his flashlight when he exited the vehicle. Defendant started to run away and Officer Webber intercepted him on a walkway next to the grocery store. He told defendant to put his hands behind his back, and defendant asked, “[F]or what reason?” Officer Webber grabbed defendant’s arm and defendant tried to pull away. Officer Webber then threw defendant down on the ground and came down on top of him. Defendant tried to push the officer off, and Officer Webber repeatedly commanded defendant to “get down on the ground.” Officer Webber then struck defendant several times on the arm with the butt of his flashlight. He told defendant two or three times, “Put your hands behind your back or you’re going to get hit again.” Defendant continued to struggle and accused Officer Webber of hitting him with a “billy club,” then taunted him, saying, “[Y]ou’re a big man, huh?” before calling him a “little girl.” Defendant then called the officer a “little fucking bitch,” and said, “[Y]ou wait—” before he twisted out from under Officer Webber, placing his feet up against the