People v. McCoy CA2/1

Filed 2/21/14 P. v. McCoy CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B249684

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA026628) v.

DAVON E. MCCOY,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles County. William C. Ryan and Mark S. Arnold, Judges. Appeal dismissed. Davon E. McCoy, in pro. per.; and Suzan E. Hier, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. __________________________________

On August 7, 1996, the trial court in this matter sentenced Davon McCoy to 25 years to life under the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i) & 1170.12, 1 subds. (a)-(d)), after a jury found him guilty of attempted second degree robbery (§§ 211 & 664) and possession of a firearm by a felon (former § 12021, subd. (a)(1)). At that sentencing hearing, the court found McCoy had sustained two prior serious felony convictions, one for assault with a deadly weapon on a peace officer or firefighter (§ 245, subd. (c)) on February 11, 1993, and one for attempted robbery on August 1, 1994. On November 26, 2012, McCoy filed a petition to recall his sentence under the Three Strikes Reform Act of 2012, added by Proposition 36. (§ 1170.126.) Under section 1170.126, an “inmate is eligible for resentencing if” the inmate “is serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of Section 1170.12 for a conviction of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.” (§ 1170.126, subd. (e)(1).) On January 14, 2013, the trial court (Judge William Ryan) issued a minute order denying the petition with prejudice without a hearing on the ground McCoy’s “current offense is a serious and/or violent felony under Penal Code section[s] 1192.7(c) and 667.5(c), making defendant ineligible for resentencing under Penal Code section 1170.126.” On May 17, 2013, McCoy filed a letter brief in the trial court, challenging the validity of one of the prior strikes the trial court used to impose the term of 25 years to life when the court sentenced him in August 1996. He challenged the validity of the February 11, 1993 conviction for assault with a deadly weapon on a peace officer or firefighter. McCoy also had raised a challenge to this prior conviction in his November 26, 2012 petition to recall his sentence. The trial court (Judge Mark Arnold) considered McCoy’s letter brief and issued a minute order on May 17, 2013 rejecting McCoy’s challenge to his prior strike and ruling the “present sentence remains intact.”