People v. McCoy CA5

Filed 5/23/14 P. v. McCoy CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent, F065829

v. (Super. Ct. No. F10902298)

ANTHONY MCCOY, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Cornell, J., and Poochigian, J.

In 2010, a jury convicted appellant, Anthony McCoy, of two counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c); counts 1, 2)1 and two counts of making criminal threats (§ 422; counts 3, 4), and found true allegations that in committing each offense, appellant personally used a dangerous or deadly weapon, viz., a knife (§ 12022, subd. (b)(1)). In a separate proceeding, appellant admitted allegations that he had suffered two prior serious felony convictions within the meaning of section 667, subdivision (a) and two “strikes,”2 and that he had served five separate prison terms for prior felony convictions (§ 667.5, subd. (b)). The sentence imposed included consecutive terms of 25 years to life on each of the two robbery counts. The robberies were committed on the same occasion against two different victims. Appellant filed a timely notice of appeal. On appeal, in People v. McCoy, case No. F061717 (first appeal), this court, in 2012, held that the two robberies were committed on the “same occasion” and arose out of the “same set of operative facts” for purposes of section 667, subdivision (c)(6) and (c)(7); therefore, consecutive sentences on those two offenses were not mandatory, and the record did not demonstrate that the sentencing court was aware of its discretion to impose concurrent terms on the two robbery convictions. This court vacated the sentence, remanded for resentencing, and did not address appellant’s contention that trial counsel was constitutionally ineffective for failing to object to the sentence at trial. Subsequently, at resentencing, the court stayed sentence on two of the prior prison term enhancements because they were based on two of the convictions giving rise to the