Filed 10/23/13 P. v. Giles CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                          B241469

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. LA068902)
         v.

QUINCY GILES,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court for Los Angeles County,
Gregory A. Dohi, Judge. Affirmed.
         Susan Morrow Maxwell, under appointment by the Court of Appeal, for
Defendant and Appellant.
         No appearance for Plaintiff and Respondent.
      A jury convicted defendant Quincy Edward Giles of two counts of second
degree robbery (Pen. Code,1 § 211), two counts of assault with a firearm (§ 245,
subd. (b)), and one count of being a felon in possession of a firearm (§ 12021,
subd. (a)(1)). As to the robbery counts, the jury found that defendant personally
used a firearm (§ 12022.53, subd. (b)), and as to the assault with a firearm counts,
the jury found that defendant personally used a semi-automatic firearm
(§§ 1203.06, subd. (a)(1), 12022.5). The jury also found that all of the crimes were
committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(A),
(C).)2 Defendant admitted four prior prison term allegations (§ 667.5, subd. (b)),
although the prosecutor subsequently informed the court that the four prior
convictions defendant suffered resulted in only three separate prison terms. The
trial court sentenced defendant to the upper term of five years on the first robbery
count, plus consecutive terms of 10 years under section 12022.53, subdivision (b),
and 10 years under section 186.22, subdivision (b)(1)(C), and one year for each of
two prior prison terms (the court exercised its discretion not to impose the
enhancement as to the remaining eligible prior prison term). The court also
imposed a consecutive one-year sentence (one-third the midterm) on the second
robbery count, but imposed and stayed the gun and gang enhancements on that
count, and imposed and stayed mid-term sentences of six years and the gun and
gang enhancements for each of the assault counts. Finally, the court sentenced
defendant to a concurrent term of two years on the felon in possession of a firearm




1
      Further undesignated statutory references are to the Penal Code.
2
      The verdict forms referenced subdivision (b)(1)(C) of section 186.22 for the
robbery and assault counts, and subdivision (b)(1)(A) in the felon in possession count.


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count.3 The total aggregate sentence is 28 years in prison. Defendant appeals from
the judgment.


                                    BACKGROUND
       At around 1:00 p.m. on September 8, 2011, Jung Woolsey and Keith
Emstrom were working at a branch of U.S. Bank located in a Vons supermarket in
Agoura Hills. Woolsey, the bank manager, was on the telephone and had turned
around to put something behind the bank counter when she heard a loud thump.
When she turned back, she saw a man inside the employee’s section of the bank,
holding a gun. He pointed the gun at her and told her to get on the ground. She
complied. Emstrom, who also was on the telephone, saw the man coming over the
counter with the gun. After forcing Woolsey down to the ground, the man came
over to Emstrom, ripped the telephone out of Emstrom’s hand, put the gun on top
of Emstrom’s head and shoved him to the ground. The man told Woolsey and
Emstrom to open their cash drawers and coin vaults, and both complied. He
emptied both cash drawers into a bag on the counter, which was being held by
3
       The court had also imposed a 10-year gang enhancement on the felon in
possession count, to be served concurrently, but in a nunc pro tunc order issued on
February 19, 2013, it indicated it intended to remove that enhancement. The trial court
had received a letter from defendant’s appellate counsel in which counsel noted that the
10-year gang enhancement could not be imposed on that count under section 186.22,
subdivision (b)(1)(C) because felon in possession of a firearm is not a violent offense.
The court noted that the proper enhancement for a non-violent offense is section 186.22,
subdivision (b)(1)(A), and that section 186.22, subdivision (b)(1)(C) should not have
been alleged for the felon in possession count (although it also noted that that jury verdict
form cited the proper code section). The court stated in its February 19, 2013 minute
order that it intended to strike the gang enhancement for that count as both an illegal
sentence and on its own motion under section 1385, and, unless it heard from either party,
it would order the change and that a modified abstract of judgment be prepared on April
4, 2013. Apparently, the District Attorney did not object, because on June 3, 2013, this
court received the trial court’s order and the modified abstract of judgment reflecting the
change.


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another man, and grabbed as many of the coins as he could until the other man
yelled, “Time, time, time.” Both men then left the store. Woolsey and Emstrom
identified defendant as the man with the gun, at both the preliminary hearing and
the trial.4
       Kathleen Rickabaugh pulled into the parking lot of the Vons supermarket on
the afternoon of September 8, 2011, and noticed a car parked in the red zone with
its flashers on. She saw one or two men run in front of her car, bent over and
holding something, and get into the parked car. She wrote down the license plate
number of the car and went into the Vons, where she asked if there had been a
robbery. Someone there was already on the telephone with the police, so she gave
him or her the license plate number. The car Rickabaugh had seen was found by
Detective Tim Cooley of the Los Angeles County Sheriff’s Department later that
day, parked in between two stalls in a condominium complex near the Vons, with
the driver’s window and rear passenger window down and its hazard lights still
flashing. Detective Cooley recovered a black glove with green trim from the
driver’s seat.
       At around 3:00 to 3:30 p.m. on September 8, 2011, Detective Patrick
Flaherty of the Los Angeles Police Department was monitoring gang activity in the
vicinity of 115th Street and Vermont Avenue in South Los Angeles. Detective
Flaherty, a member of the Southeast Division Gang Impact Team, was assigned to
monitor gangs primarily on the west side of the Southeast Division, including the
Denver Lane Bloods. He had known defendant for several years through contacts
with him as a police officer; during at least one of those contacts, defendant
admitted he was a member of the Denver Lane Bloods gang.

4
       Woolsey also identified defendant from a photo six-pack a couple of months after
the robbery.


                                           4
      On the afternoon of September 8, Detective Flaherty and his partner pulled
into a parking lot on 115th Street near Vermont Avenue, and saw defendant
standing next to a blue Dodge Durango. There were several people in or around
the Durango, including someone named McAfee.5 When Detective Flaherty and
his partner got out of their car to talk to defendant, he saw that defendant had
money in his hands. When defendant saw the detective, he dropped the money and
got into the Durango, on the rear passenger side. Detective Flaherty saw a man he
knew through prior contacts, Mackie Jones (who also was a member of the Denver
Lane Bloods), inside the Durango in the rear on the driver’s side, manipulating a
large kitchen trash can. Jones showed fear when he saw Detective Flaherty and his
partner; McAfee tried to flee by jumping over a retaining wall near where the
Durango was parked. The house on the other side of the wall belonged to
defendant’s grandmother, and was known to be a Denver Lane Blood hangout.
The detectives detained all of the people who had been in or around the Durango.
      Detective Flaherty looked inside the Durango and saw loose cash all over
the back seat. When he reported what he saw, he was notified to hold the crime
scene for the Sheriff’s Department. When Detective Mark Gittens from the
Sheriff’s Department arrived at the scene, he showed Detective Flaherty
surveillance photos from the bank.6 Detective Flaherty told him that both suspects




5
       At the preliminary hearing, Emstrom identified McAfee as the accomplice in the
robbery. Two of the people who were in or by the Durango (other than defendant) were
known members of the Denver Lane Bloods gang; Detective Flaherty did not know the
other two people, one of whom was McAfee.
6
       Detective Rodney Wagner of the Sheriff’s Department was given surveillance
videos and still photos from the videos when he responded to the bank shortly after the
robbery.


                                            5
in the photos were with the Durango when he and his partner arrived; Detective
Flaherty specifically identified defendant from the photos.
      Detective Gittens and his partner searched the Durango and found United
States currency strewn throughout the car, and a lot of coins. The bills and coins
were wet. The detectives also recovered a purse, a trash can, money trays, a coin
case, two baseball caps, and a hoodie. Inside the purse was a black glove, and
inside the glove was a loaded .25 caliber semi-automatic pistol. After collecting
evidence from the Durango, a police officer directed Detective Gittens’ attention to
a trash can that was in the parking lot, about 30 to 40 feet from the Durango, from
which Detective Gittens collected a hat, black shirt, and a sweater. Those items of
clothing resembled the clothing worn by the suspects in the surveillance photos.
      The day after the robbery, Detective Wagner returned to the bank with the
money that had been collected from the Durango. He gave the money to bank
employee Tiffany Brod, and asked her to check to see if any of the “bait money”
was included. (The bank keeps track of the serial numbers of certain bills that are
in each cash drawer, and refers to those bills as “bait money.”) Brod compared the
serial numbers of the bills that had been returned to the bank records and
determined that all of the bait money was there.
      Defendant was charged by information with two counts of second degree
robbery of Woolsey (count 1) and Emstrom (count 3), two counts of assault with a
semiautomatic firearm against Woolsey (count 2) and Emstrom (count 4), and
possession of a firearm by a felon, with personal use of a gun allegations as to the
first four counts and gang allegations as to all of the counts, along with four prior
prison term allegations.
      At trial, the prosecution presented testimony from the victims, Rickabaugh,
Brod, and several of the detectives involved in the case, one of whom, Detective
Flaherty, also testified as a gang expert. Detective Flaherty opined that the bank

                                           6
robbery (as presented in a hypothetical) was committed for the benefit of and in
association with a criminal street gang and with the specific intent to further,
promote, or assist in criminal conduct of gang members. In addition, the jury was
shown the surveillance video and several still photos taken from that video. The
jury also was shown the glove recovered from the car found near the Vons and
photographs of the shoes defendant was wearing when he was arrested.7 Detective
Wagner testified that the glove appeared to be the mate of the glove the man in the
surveillance video was wearing during the robbery, and the shoes defendant was
wearing appeared to be the same as the shoes shown in the surveillance video.
      The defendant did not present an affirmative defense.


                                    DISCUSSION
      After review of the record, defendant’s court-appointed counsel filed an
opening brief asking this court to review the record independently in accordance
with the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
      We advised defendant that he had 30 days within which to submit any
contentions or issues that he wished us to consider. No response has been received
to date.
      We have examined the entire record and are satisfied that no arguable issues
exist, and that appellant has, by virtue of counsel’s compliance with the Wende
procedure and our review of the record, received adequate and effective appellate
review of the judgment entered against him in this case. (Smith v. Robbins (2000)
528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)



7
      The jury also listened to a recording of Detective Wagner’s interview of
defendant, in which defendant identified the Durango as his wife’s car, but denied any
involvement with the robbery.

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                   DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                WILLHITE, Acting P. J.




We concur:




MANELLA, J.




SUZUKAWA, J.




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