P. v. McCoy

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Filed 9/24/12 CERTIFIED FOR PARTIAL PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ---THE PEOPLE, C067498 Plaintiff and Respondent, (Super. Ct. No. 10F02820) v. ORDER MODIFYING OPINION ALAN MCCOY, [NO CHANGE IN JUDGMENT] Defendant and Appellant. THE COURT: It is ordered that part II. of the opinion filed herein on August 29, 2012, which has been certified for partial publication, be modified as follows: 1. On page 14, at line 6 of continued footnote 6, which begins, were the basis for the jury s verdict. (Id. at p. 876.) , insert additional citational material so that the citations now read: (Coelho, at p. 876; but see In re Coley (Aug. 30, 2012, S185303) ___ Cal.4th ___ [2012 Cal. Lexis 8296, *75-*76 & fn. 18] [suggesting Coelho analysis is inconsistent with Oregon v. Ice (2009) 555 U.S. 160 [172 L.Ed.2d 517]].) 1 2. On page 16, at the second and third lines, which begin, making sentencing choices. (People v. Towne (2008) 44 Cal.4th 63, 83-89.) , insert additional citational material, so that the citations now read: (People v. Towne (2008) 44 Cal.4th 63, 83-89; cf. In re Coley, supra, ___ Cal.4th at p. ___ [2012 Cal. Lexis 8296 at pp. *68-*69] [an evaluation of a sentence pursuant to the Eighth Amendment of the federal Constitution may consider facts underlying verdict of acquittal].) There is no change in the judgment. (THESE MODIFICATIONS APPEAR IN PT. II., WHICH IS CERTIFIED FOR PUBLICATION.) THE COURT: NICHOLSON , Acting P.J. BUTZ , J. HOCH , J. 2

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