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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           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


1      All statutory references are to the Penal Code.
2      We use the term “strike” as a synonym for “prior felony conviction” within the
meaning of the “three strikes” law (§§ 667, subds. (b)-(i), 1170.12), i.e., a prior felony
conviction or juvenile adjudication that subjects a defendant to the increased punishment
specified in the three strikes law.


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prior serious felony enhancements,3 and imposed, on count 1, a term of 25 years to life
plus 14 years for the enhancements and, on count 2, a consecutive term of 25 years to life
plus 11 years for the enhancements. On each of counts 3 and 4, the court imposed, and
stayed pursuant to section 654, a term of 25 years to life.
       In pronouncing sentence, the court stated it was “aware of its ability to impose …
concurrent sentence[s]” on counts 1 and 2.
       The instant appeal followed appellant’s resentencing.
       Appellant’s appointed appellate counsel has filed an opening brief which
summarizes the pertinent facts, with citations to the record, raises no issues, and asks that
this court independently review the record. (People v. Wende (1979) 25 Cal.3d. 436.)
Appellant, in response to this court’s invitation to submit additional briefing, has
submitted a letter brief in which, as best we can determine, he raises the same claim of
ineffective assistance of counsel he raised in the first appeal. We affirm.
       In his opening brief in the first appeal, appellant argued that the court was not
aware it had the discretion to impose concurrent sentences, and that if this claim was
deemed waived by his counsel’s failure to “[make a] specific request for concurrent
sentencing on count two” and “object to the trial court’s comments that consecutive
sentences were prescribed,” he was denied his constitutional right to the effective
assistance of counsel. As best we can determine, appellant makes the same claim in the
instant appeal. However, the first appeal has been decided and appellant may not
relitigate in the instant appeal claims he raised in the first appeal. In any event, this court
did not find that appellant’s claims were waived by counsel’s failure to object and, as



3      See People v. Jones (1993) 5 Cal.4th 1142, 1150 “[W]hen multiple statutory
enhancement provisions are available for the same prior offense, one of which is a
section 667 enhancement, the greatest enhancement, but only that one, will apply”].


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indicated above, this court vacated the sentence in the first appeal, thus providing
appellant with all relief to which he was entitled.
       To the extent appellant’s argument can be construed as a claim that he was denied
his right to effective assistance of counsel at any point after this court’s decision in the
first appeal, the record contains no support for such a claim.
       Following independent review of the record, we have concluded that no
reasonably arguable legal or factual issues exist.
                                       DISPOSITION
       The judgment is affirmed.




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