P. v. Myers
Filed 5/23/06 P. v. Myers CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, Plaintiff and Respondent, v. SHAWN MYERS, Defendant and Appellant. | B182762 (Los Angeles County Super. Ct. No. KA066676) |
APPEAL from a judgment of the Superior Court of Los Angeles County,
Charles E. Horan, Judge. Modified and, as so modified, affirmed.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Herbert S. Tetef and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant and appellant Shawn Myers appeals from the judgment entered following a jury trial that resulted in his convictions for assault with a semiautomatic firearm, shooting at an occupied motor vehicle, and discharging a firearm with gross negligence. Myers was sentenced to a prison term of 16 years.
Myers contends: (1) because grossly negligent discharge of a firearm is a lesser included offense of discharging a firearm at an occupied motor vehicle, he could not properly be convicted of both offenses; (2) imposition of the upper term on a firearm enhancement violated Blakely v. Washington;[1]and (3) he is entitled to one additional day of custody credit. As the People concede, Myers's first and third contentions have merit, and we modify the judgment accordingly. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence relevant to the issues presented on appeal established the following. Victim James Overstreet and Myers had attended the same high school and played football together. On February 24, 2004, Overstreet, Harold Frazier, and Billy Hines were driving in Frazier's white Honda when they encountered Myers's older brother and Jason Verona in a blue Malibu. The occupants of the blue Malibu began â€
