P. v. McCoy
Filed 9/3/13 P.
v. McCoy CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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,
v.
JOSEPH DANIEL MCCOY,
Defendant and Appellant.
F064816 & F065075
(Super. Ct. Nos. BF136782A & BF135575A)
O P I N I O N
THE COURT
APPEAL from
a judgment of the Superior Court of
Sara H.
Ruddy, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William
K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Pursuant to a plea agreement, on April 22, 2011, in Kern
County Superior Court case No. BF135575A, appellant, Joseph Daniel McCoy,
pleaded no contest to making criminal
threats (Pen. Code, § 422)
name="_ftnref2" title="">[1] and the court conditionally dismissed four
other felony charges.
On July 25,
2011, an information was filed in Kern County Superior Court case No.
BF136782A, charging appellant and his mother, Darlene Green, with one count of
elder abuse under circumstances likely to cause great bodily injury or death (§
368, subd. (b)(1)), and alleging that appellant and Green inflicted great bodily
injury on a person 70 years of age or older (§ 368, subd. (b)(2)(B)) and
proximately caused the victim’s death within the meaning of section 368,
subdivision (b)(3)(B). We refer to case
No. BF136782A as the elder abuse case.
On January
4, 2012, appellant entered into a new plea
agreement covering both cases.
Pursuant to this plea agreement, the following occurred:
First, the information in the elder
abuse case was amended to add an enhancement allegation under section 12022.7
(personal infliction of great bodily injury), the court conditionally dismissed
the special allegations under subdivisions (b)(2)(B) and (b)(3)(B) of section
368, and appellant pleaded no contest to the elder abuse charge and admitted the
great bodily injury enhancement allegation.
Second, in case No. BF135575A, the
criminal threats charge, to which appellant had previously pleaded no contest
was dismissed pursuant to section 1385 and the information was amended to add a
charge of infliction of injury on a domestic partner (§ 273.5, subd. (a)),
to which appellant pleaded no contest.
We refer to case No. BF135575A as the domestic violence case.
The plea agreement provided that
appellant would receive a prison term of five years, consisting of the two-year
lower term plus three years for the accompanying enhancement in the elder abuse
case, and a concurrent three-year term in the domestic violence case.
On April 20, 2012, the court
imposed the agreed-upon five-year sentence.
The court also imposed presentence custody credits as follows: in the domestic violence case 876 days,
consisting of 438 days of actual time credits and 438 days of conduct credits,
and in the elder abuse case, 403 days, consisting of 351 days of actual time
credits and 52 days of conduct credits.
The court subsequently awarded appellant an additional day of custody
credits, bringing the total to 404 days.
On April 23, 2012, appellant filed
a notice of appeal in the elder abuse case and the appeal was given the case
number F064816. On May 31, 2012,
appellant filed a notice of appeal in the domestic violence case and the case
was given the case number F065075. In
each case, appellant requested, and the court issued, a certificate of probable
cause (§ 1237.5). On January 4,
2013, this court ordered the two appeals consolidated under case No. F064816.
In his appeal in the domestic
violence case, 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 has not responded to this court’s
invitation to submit additional briefing.
In the elder abuse case, appellant
contends he is entitled to 503 days of presentence custody credits, not 404
days as determined by the trial court.
Respondent concedes the point.
We modify the judgment to provide
that in the elder abuse case, appellant is awarded 503 days of presentence custody
credits, and affirm as modified.
Facts – The Elder Abuse Case
On the evening of February 11, 2011 (February 11),
paramedics, responding to a call, went to a house where, in a back bedroom,
Margaret Gray, was lying on a bed. She
was covered in her own feces, she had open sores on her back, feet and legs,
and her skin was fused into the fabric of the mattress, so that when paramedics
moved her, her skin came off. One of the
paramedics estimated that Gray had been lying in the bed for at least one month
and “probably several months.â€
Paramedics
took Gray to the Kern Valley Hospital emergency room. The physician who treated her there testified
to the following: Gray had “ulcers of
different ages on her entire body.†One
of the ulcers was of a sort that takes at least two weeks to form. Such ulcers are caused by the person not
being moved.
Later in
February 2011, Gray was moved to a skilled nursing and long-term care facility,
where she died on April 1, 2011. The
physician who treated her there testified Gray’s condition when she arrived was
very poor and she never improved. She
had ulcers on her body which caused infection, which in turn led to multiple
organ failure, the cause of death.
On February
11, Kern County Deputy Sheriff Marco Vazquez went to the home where paramedics
had found Gray, arriving while the paramedics were still there. Gray’s daughters, Darlene Green and Barbara
Mendez, were also there. Mendez told
Vazquez that appellant, who was Gray’s grandson, was Gray’s “caregiver†and
that he was paid for his services.
On February
23, 2011, Vazquez interviewed appellant at the Lerdo pretrial detention
facility, where he had been in custody since February 8, 2011, when he was
arrested in the domestic violence case. Appellant stated he was Gray’s “primary
caregiver,†he had acted in this capacity since July 1999 and for performing
that service he was paid $9.50 per hour.
Facts – The Domestic Violence Case
At
approximately 12:50 p.m. on February 8, 2011, Kern County Deputy Sheriff Eric
Hughes was driving in his patrol car when he saw a woman sitting in a car,
leaning against the passenger window, covering part of her face and head with
her hand. She appeared to be
afraid. Hughes pulled in behind the car,
at which point the woman jumped out and ran to the side of the road. Appellant was the driver of the car; he drove
away.
The woman
identified herself as Doreena McCartney.
The right side of her face was swollen, and she had a bruise between her
eyes above her nose. She told Hughes the
following:
She had
been at a friend’s residence earlier when appellant arrived. She heard him honking his car horn and when
she came outside he grabbed her by the hair, hit her several times in the face
and started dragging her to the car, at which point she fell down. Appellant then stomped on her head, reached
down and grabbed her by the hair, hit her several more times, dragged her to
the car and “threw her in ....â€
Appellant
then drove to his house, where he forced McCartney out of the car and hit her
several more times as he “forced and pushed†her inside. Inside the house he hit McCartney was several
more times. Appellant’s mother was
present in the house. Appellant told her
he was going to kill McCartney.
Thereafter,
appellant forced McCartney out of the house and into the car, and drove to a
gas station. There, McCartney, in an
attempt to get out of the car, got the door partially opened but appellant
grabbed her, told her that if she did get out he would kill her, and forced her
back into the car. Appellant then drove
back in the direction of his house, but as he was driving he saw Deputy
Hughes’s patrol car. Shortly thereafter,
appellant stopped the car and McCartney was able to jump out.
Appellant
is McCartney’s ex-boyfriend. She and
appellant have one child together.
Procedural Background
On February
2, 2012, at the time set for sentencing, appellant informed the court he wanted
to withdraw his plea. The court
continued the sentencing hearing. On
February 29, 2012, appellant filed a notice of motion “for a hearing pursuant
to People v. Smith (1993) 6 Cal.4th
684,†in which he asserted that under Smith,
“when a defendant wishes to withdraw his plea, a hearing similar to a so-called
‘Marsden hearing’ (
must first be conducted to determine whether the defendant is alleging grounds
that might require the appointment of new counsel for purposes of withdrawing
his plea.â€
On March 2, 2012, at a hearing with
only appellant, defense counsel and court personnel present, the court
“granted†the motion, relieved appellant’s attorney as counsel, and appointed
the “indigent defense panel†to represent appellant.
On April 6, 2012, appellant’s new
counsel filed a notice of motion to withdraw appellant’s plea, along with a
supporting memorandum of points and authorities in which he asserted
appellant’s plea “was not knowingly, intelligently, and voluntarily made
because [appellant’s counsel at the time of the plea] was ignorant of
potentially meritorious defenses to the charges.†Specifically, he argued as follows: In People
v. Heitzman (1994) 9 Cal.4th 189, 212, the California Supreme Court held
that in order for criminal liability to arise under section 368 for permitting
an elder to suffer unjustifiable pain or suffering, “a defendant must stand in
a special relationship to the individual inflicting the abuse on the elder such
that the defendant is under an existing duty to supervise and control that
individual’s conduct.†Although
appellant had been employed by a social service agency to act as Gray’s
caregiver, he was terminated from that employment on December 31, 2010, and
therefore “during the month[s] of January and February of 2011 [appellant] was
no longer in a special relationship with the victim.â€
A hearing on the motion was
conducted on April 20, 2012. At that
hearing, appellant testified consistent with the claims asserted in his moving
papers. He also testified he continued
to live with Gray after his employment ended up to the day he was arrested on
February 8, 2011. During that time, he
confirmed, he was “the one that was there day in and day out to see what was
going on with her ....†He claimed he
did not tell Deputy Vazquez that he was Gray’s paid caregiver from 1999 until
he was arrested in February 2011.
Appellant did not testify that at the time he entered his plea he was
unaware of the defense discussed above.
The court denied the motion.
DISCUSSION
Following independent review of the record, we have
concluded that no reasonably arguable
legal or factual issues exist.
Elder Abuse Case
As
indicated above, appellant argues, and the People concede, that in the elder
abuse case the court failed to award him the correct number of presentence
custody credits. The parties are
correct.
Background
Appellant
was arrested in the domestic violence
case on February 8, 2011, and he remained in custody from that date through
April 20, 2012, a period of 438 days.
His award of custody credits in the domestic violence case included 438
days of actual time credits. On February
11, 2011, as indicated earlier, appellant’s grandmother, the victim in the
elder abuse case, was found in her home in extremely poor physical
condition.
The report
of the probation officer states appellant was not arrested in the elder abuse
case until February 17, 2011. The
criminal complaint in that case was filed May 11, 2011. The court’s initial award of actual time
custody credits included 351 days of actual time credits, reflecting time in
custody from February 17, 2011, through February 22, 2011, and May 12, 2011,
through April 20, 2012, a total of 351 days.
Subsequently, the court awarded appellant one additional day of actual
time credit which, with its award of 52 days of conduct credit, brought the
total custody credit award to 404 days.
Analysis
Section
2900.5, subdivision (b) allows presentence credit to be given “only where the
custody to be credited is attributable to proceedings related to the same
conduct for which the defendant has been convicted.†As the parties agree, “when concurrent sentences
are imposed at the same time for unrelated crimes, the defendant is entitled to
presentence custody credits on each sentence, provided he is not also in
postsentence custody for another crime.â€
(People v. Kunath (2012) 203
Cal.App.4th 906, 908.)
Here,
appellant was sentenced at the same time for two unrelated crimes, and the
court imposed concurrent sentences for those crimes. Therefore, appellant is entitled to full
credit for the time spent in presentence custody in both cases. Accordingly, we will modify the judgment to
provide that in the elder abuse case, appellant is awarded full credit, i.e.,
438 days of actual time credit and 65 days of conduct credit (§ 2933.1, subd.
(c)), for a total of 503 days of presentence custody credit.
DISPOSITION
The
judgment is modified to provide that in the elder abuse case (Kern County
Superior Court case No. BF136782A) appellant is awarded 503 days of presentence
custody credits, consisting of 438 days of actual time credits and 65 days of
conduct credits. The trial court is
directed to prepare an amended abstract of judgment that reflects this
modification and to forward a certified copy to the
As modified, the judgment is
affirmed.
name="_ftn1" title="">* Before
Cornell, Acting P.J., Kane, J., and Franson, J.
name="_ftn2" title="">[1] All
further statutory references are to the Penal Code unless otherwise indicated.
