People v. McCoy CA3 ( 2015 )

Filed 2/20/15 P. v. McCoy 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C074811
Plaintiff and Respondent, (Super. Ct. No. 09F07723)
v.
JOE LYNN McCOY,
Defendant and Appellant.
This case comes to us pursuant to People v. Wende (1979) 25 Cal. 3d 436 (Wende).
Having reviewed the record as required by Wende, we affirm the judgment.
We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal. 4th 106, 110, 124.)
FACTUAL AND PROCEDURAL BACKGROUND
This appeal comes to us following our order remanding the matter for resentencing
and correction of the abstract of judgment in People v. McCoy (2013) 215 Cal. App. 4th
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1510, 1541 (McCoy I). The following factual and procedural summary is taken, in part,
from our opinion in McCoy I.
“Defendant Joe Lynn McCoy physically and sexually assaulted his girlfriend,
Cindy H., fracturing her spine during the attack and rendering her a quadriplegic.
Because Cindy H.’s medical condition provided reasonable grounds to fear she would be
unable to testify at trial, she was examined conditionally during the preliminary hearing
via two-way video. At trial, as anticipated, the video of this examination was played for
the jury because Cindy H. was unable to testify. Defendant was convicted of torture
(count 2), inflicting corporal injury on a cohabitant (count 3), and unlawful sexual
penetration with a foreign object (count 4). With respect to count 3, the jury found
defendant personally inflicted great bodily injury causing paralysis. With respect to
count 4, the jury found defendant personally inflicted torture.[1] The trial court sentenced
defendant to state prison for a term of 25 years to life and imposed other orders.”
(McCoy I, supra, 215 Cal.App.4th at p. 1514.)
Defendant appealed, asserting various claims, including an error in the abstract of
judgment. The Attorney General conceded the error in the abstract, and also pointed out
that the trial court neglected to impose sentence on counts 2 and 3 before staying their
execution pursuant to Penal Code section 654, resulting in an unauthorized absence of
sentence. (McCoy I, supra, 215 Cal.App.4th at pp. 1514-1515.) We affirmed
defendant’s convictions, but agreed sentence should have been imposed on counts 2 and
3, and remanded the matter to the trial court for that limited purpose. We further
instructed the trial court to amend the abstract of judgment to reflect the sentences
1 “The jury was unable to reach a verdict on count 1, which charged defendant with
attempted murder. Nor could the jury reach a verdict on a one-strike great bodily injury
allegation attached to count 4.”
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imposed on counts 2 and 3, and to further reflect the sentence imposed pursuant to Penal
Code section 667.61, subdivision (d)(3), was not stayed. (Id. at pp. 1515, 1541-1542.)
On September 13, 2013, the trial court resentenced defendant, imposing an
indeterminate term of seven years to life for count 2, plus a determinate term of four
years (the upper term) for count 3, and staying both terms pursuant to section 654. The
court also noted for the record that the sentence imposed pursuant to Penal Code section
667.61, subdivision (d)(3), was not stayed.
On June 11, 2014, the trial court issued an order correcting the sentence by
awarding defendant 558 days of presentence custody credit, plus 952 days of credit for
time served from February 5, 2011 (the date sentence was originally pronounced), to
September 13, 2013 (the date of resentencing), pursuant to People v. Buckhalter (2001)
26 Cal. 4th 20 and Penal Code section 2900.1. The abstract was amended accordingly.
Defendant filed a timely notice of appeal.
Wende Review
Counsel filed an opening brief that sets forth the facts of the case and requests that
we review the record and determine whether there are any arguable issues on appeal.
(Wende, supra, 25 Cal. 3d 436.) Defendant was advised by counsel of the right to file a
supplemental brief within 30 days of the date of filing of the opening brief. More than 30
days have elapsed, and we have received no communication from defendant.
Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
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DISPOSITION
The judgment is affirmed.
MURRAY , J.
We concur:
MAURO , Acting P. J.
HOCH , J.
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