People v. McCoy CA2/8

Filed 6/6/16 P. v. McCoy CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B263760

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA058865) v.

LAKEITH MCCOY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles A. Chung, Judge. Affirmed.

Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

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Defendant Lakeith McCoy appeals the judgment following his plea of nolo contendere to two counts of assault by a state prisoner. (Pen. Code, § 4501.) Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), appellant’s counsel filed an opening brief requesting this court review the record and determine whether any arguable issues exist on appeal. Appellant filed a supplemental brief. After reviewing appellant’s supplemental brief and the entire record, we find no arguable issue and affirm. PROCEDURAL BACKGROUND On April 4, 2013, appellant was charged with two counts of assault by a life prisoner in violation of Penal Code section 4500 (counts 1 and 2).1 A week prior to trial, the People filed an amended information adding two counts of assault by a state prisoner in violation of Penal Code section 4501 (counts 3 and 4). It was further alleged appellant had three prior “strike” convictions (§ 667, subds. (a)(1), (b)-(i)), and three prior prison terms (§ 667.5, subd. (b)). Trial began on April 1, 2014. On April 3, 2014, the People filed a second amended information adding an allegation of great bodily injury for counts 2 and 4 (§ 12022.7, subd. (a)). At the close of trial, the court granted a motion to dismiss counts 1 and 2 under section 4500 because the People failed to introduce evidence to prove appellant was a life prisoner. The jury deadlocked 6-6 on the remaining counts pursuant to section 4501, and the court declared a mistrial. Prior to retrial, appellant pled no contest to counts 3 and 4 under section 4501, and the court sentenced him to the agreed term of three years four months. The remaining allegations and enhancements were dismissed. Appellant filed a timely notice of appeal and was granted a certificate of probable cause. FACTUAL BACKGROUND2 On the morning of August 5, 2012, Officer Kenya Meux was working in her assigned unit in California State Prison, Los Angeles County conducting chow release when she saw appellant leave his cell without following dismissal procedures and exit the