People v. McCoy CA3

Filed 2/20/15 P. v. McCoy CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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