People v. Myers CA2/6

Filed 1/27/21 P. v. Myers CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions .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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115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, 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