Filed 4/25/14 P. v. Quinn 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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,                                                     F066604

                   v.                                                    (Super. Ct. No. F12903927)

GREGORY WAYNE QUINN,                                                                 OPINION

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Alvin M.
Harrell, III, Judge.
         Deborah Prucha, 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 Gomes, Acting P.J., Poochigian, J., and Franson, J.
       Appellant, Gregory Wayne Quinn, appeals following his conviction by plea of
robbery (Pen. Code, § 211). Following independent review of the record pursuant to
People v. Wende (1979) 25 Cal.3d 436, we affirm.
                     FACTUAL AND PROCEDURAL HISTORY
       Shortly before 10:00 p.m. on May 29, 2012, victim one drove with victim two to
an apartment complex in Fresno to buy marijuana from Quinn. After parking at the
complex victim one got out and met with Quinn at the corner of a building. Quinn then
brandished a small silver gun and demanded victim one’s money. Victim one turned to
run and heard several clicks as if the gun had misfired.
       Victim two saw victim one running away from the complex yelling that he was
being robbed. Victim two then saw Quinn at his car window pointing a gun at his face
and demanding that victim two give him all his money. Victim two told Quinn he did not
have any money and gave Quinn his phone. Quinn left victim two and pursued victim
one. When Quinn caught up to victim one, he pointed the gun at victim one’s head and
told him to give him everything he had. Victim one gave Quinn $700 that he had
intended to use to purchase marijuana.
       Meanwhile, victim two fled and located some police officers at a nearby apartment
complex. While an officer spoke with victim two, other officers contacted Quinn inside a
gray car that matched the description of the car in which the robber left the scene of the
robberies. Victim two was driven to the location and identified Quinn as the man who
robbed him. Victim one also identified Quinn as the man who robbed him. Quinn
identified himself with a false name to the officers.
       On November 9, 2012, the district attorney filed an information charging Quinn
with two counts of robbery (counts 1 & 2), one count of providing a false name to a
police officer (§ 148.9, subd. (a), count 3), two separate personal use of a firearm
enhancements (§§ 12022.5, subd. (a) & 12022.53, subd. (b)) in counts 1 and 2, and three

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prior prison term enhancements (§ 667.5, subd. (b)). The information also alleged that
Quinn had two prior convictions within the meaning of the three strikes law (§ 667,
subds. (b)-(i)).
         On December 20, 2012, the prosecutor asked the court to strike the allegations that
Quinn had two convictions within the meaning of the three strikes law because the
underlying convictions occurred before Quinn was 16 years old and thus did not qualify
as strikes. Quinn then pled no contest to the robbery charged in count 2 in exchange for
the dismissal of the remaining counts and allegations and a lid of two years.
         On February 1, 2013, the court sentenced Quinn to the mitigated term of two
years.
         On February 4, 2013, Quinn filed a timely appeal. He did not, however, obtain a
certificate of probable cause.
         Quinn’s appellate counsel has filed a brief which summarizes the facts, with
citations to the record, raises no issues, and asks this court to independently review the
record. (People v. Wende, supra, 25 Cal.3d 436.) However, in a document filed on
June 20, 2013, Quinn contends: 1) he was denied the effective assistance of counsel in
entering his plea because his defense counsel failed to adequately investigate his case,
misadvised him on his sentence exposure, and failed to communicate with him;
2) defense counsel was ineffective at the preliminary hearing because he failed to file a
motion to dismiss for lack of evidence, failed to impeach the victims’ testimony with
inconsistent statements, and failed to object to certain unspecified evidence; and 3) his
appellate counsel provided ineffective assistance of counsel because he failed to review
the appellate record and raise reasonably arguable issues.
         Quinn’s claim that he received ineffective assistance at his preliminary hearing
raises issues that are foreclosed by his no contest plea because they go to his guilt or
innocence. (People v. Jones (1995) 10 Cal.App.4th 1102, 1109.) His claim that he was

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denied the effective assistance of counsel in entering his plea is foreclosed by his failure
to obtain a certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68, 76.)
Further, both ineffective assistance of counsel claims are not cognizable on appeal for the
additional reason that they are all based on matters outside the record. (People v. Barnett
(1998) 17 Cal.4th 1044, 1183 [“our review on a direct appeal is limited to the appellate
record”].)
       Moreover, “[t]he test for determining whether a criminal defendant received
ineffective assistance of counsel is well settled. The court must first determine whether
counsel’s representation ‘fell below an objective standard of reasonableness.’ [Citation.]
The court then inquires whether ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’
[Citations.]” (People v. Jones (2010) 186 Cal.App.4th 216, 234-235.)
       Quinn has not identified any reasonably arguable issues that appellate counsel
failed to raise. Thus, there is no merit to Quinn’s contention that appellate counsel
provided ineffective representation.
       Following an independent review of the record we find that no reasonably
arguable factual or legal issues exist.
                                          DISPOSITION
       The judgment is affirmed.




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