Filed 4/30/14 P. v. King CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E060394

v.                                                                       (Super.Ct.No. FVA1300615)

QUINCY DUBOIS KING,                                                      OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson

Uhler, Judge. Affirmed.

         Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




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                                              I

                             STATEMENT OF THE CASE

         On November 13, 2013, a first amended information charged defendant and

appellant Quincy Dubois King and co-defendant Edward George Robinson with: (1)

second degree robbery under Penal Code1 section 211 (counts 1, 4); (2) unlawful

imprisonment by force under section 236 (counts 2, 5, 8); (3) assault with a firearm under

section 245, subdivision (a)(2) (counts 3, 6, 7, 9); and second degree burglary under

section 459 (count 10). The information also alleged that the principal was armed with a

firearm under section 12022, subdivision (a)(1) as to all counts. A third defendant, Javon

Lee Wright, pled guilty prior to the filing of the amended information.

         On the same date, after the commencement of jury selection, defendant pled no

contest to counts 1 and 4, the second degree robbery charges, and admitted that he had

served one prior prison term, in exchange for an agreed-upon prison sentence of seven

years.

         On December 13, 2013, the court conducted a hearing under People v. Marsden

(1970) 2 Cal.3d 118. As part of the hearing, defendant advised the court that he wanted

to withdraw his no contest plea and admission. The court denied the Marsden request

and defendant’s motion to withdraw the no contest plea and admission. The court then

imposed the agreed-upon prison term of seven years consisting of the upper term of five




         1     All statutory references are to the Penal Code unless otherwise specified.

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years for count 1, a consecutive term of one year for count 4, and a consecutive one year

for the prior prison term allegation.

       On December 21, 2013, defendant filed a timely notice of appeal. On January 2,

2014, the trial court granted defendant’s certificate of probable cause.

                                             II

                               STATEMENT OF FACTS2

       At about 11:30 a.m., on April 8, 2013, defendant and co-defendants Wright and

Robinson walked into a Payless Shoe Store in Rialto. Wright approached an employee,

Jane Doe 1, and pointed a small silver gun at her head and ordered her to surrender her

iPod and cell phone. Wright put these items in his pants pocket, grabbed Doe 1, dragged

her to the cash register, and ordered her to open it. Defendant took Jane Doe 2, another

Payless employee, to the back of the store. When Doe 1 was unable to comply because

she was too upset, Wright grabbed Doe 2 and had her open the register. Wright took cash

from the register. He then wrapped Doe 1’s hands and ankles with duct tape.

       All three men went through the purses of Doe 1 and Doe 2. Wright then dragged

Doe 2 back to the front of the store at gunpoint and ordered her to open the safe. Doe 2

informed Wright that the safe was on a ten-minute delay.

       During this incident, two female customers walked into the store. Wright pointed

his gun at the women and ordered them to remain in a corner. One complied and the

other ran out of the store, screaming.

       2      Since defendant pled no contest prior to trial, the statement of facts is taken
from the transcript of the preliminary hearing.

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       In response to a silent robbery activation alarm, police were dispatched to the

store. Officer Austin Dossey saw three black males running from the store. The men

ignored the officer’s order to stop. The officer chased one of the men, later identified as

Wright, and detained him in front of a nearby Stater Brothers grocery store.

       After Officer Dossey detained Wright, he detained Robinson outside the rear of

Aldo’s Mexican Restaurant, about 100 feet from Stater Brothers. Officer Dossey had

been alerted to Robinson’s presence by a police helicopter pilot. The jeans that Robinson

was wearing, with red and white stitching on the pockets, matched the jeans worn by one

of the three men he saw running from the scene. Defendant was wearing a gray and teal

hat that matched a hat worn by one of the perpetrators on a store surveillance video.

       As Officer Dossey chased Wright, Officer McDonaugh chased defendant and

tackled him in a field to the rear of a nearby apartment complex.

       After his arrest, Wright informed Officer Dossey that he met up with defendant

and another man about a mile from the Payless and planned on how to get money from

that store. Wright admitted that he pointed a gun at both Doe 1 and Doe 2, ordering each

to open the cash register.

                                            III

                                       ANALYSIS

       After defendant appealed, and upon his request, this court appointed counsel to

represent him. Counsel has filed a brief under the authority of People v. Wende (1979)

25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of



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the case, a summary of the facts and potential arguable issues, and requesting this court to

undertake a review of the entire record.

       We offered defendant an opportunity to file a personal supplemental brief, and he

has done so. On March 19, 2014, defendant filed an 11-page handwritten brief (first

brief). In this brief, defendant essentially argues that his counsel rendered ineffective

assistance of counsel (IAC). On March 25, 2014, defendant filed a five-page handwritten

brief (second brief). In the second brief, defendant argues that he is entitled to additional

custody credits under section 4019. On April 8, 2014, defendant filed a one-page

supplemental brief (third brief). In the third brief, defendant requests that his appellate

counsel be relieved.

       First, we address defendant’s IAC claim. In order to establish a claim of IAC,

defendant must demonstrate, “(1) counsel’s performance was deficient in that it fell

below an objective standard of reasonableness under prevailing professional norms, and

(2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable

probability’ that, but for counsel’s failings, defendant would have obtained a more

favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to

undermine confidence in the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th

468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668;

accord, People v. Boyette (2002) 29 Cal.4th 381, 430.) Hence, an IAC claim has two

components: deficient performance and prejudice. (Strickland v. Washington, supra, at

pp. 687-688, 693-694; People v. Williams (1997) 16 Cal.4th 153, 214-215; People v.



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Davis (1995) 10 Cal.4th 463, 503; People v. Ledesma (1987) 43 Cal.3d 171, 217.) If

defendant fails to establish either component, his claim fails.

       When a claim of ineffective assistance is made on direct appeal, and the record

does not show the reason for counsel’s challenged actions or omissions, the conviction

must be affirmed unless there could be no satisfactory explanation. (People v. Pope

(1979) 23 Cal.3d 412, 426.)

       In this case, defendant contends that both counsel who represented defendant

rendered IAC because neither (1) sought discovery of documents, and (2) challenged the

identification of defendant. Both of these issues were discussed at the Marsden hearings

for both counsel.

       The record, however, indicates that both counsel received discovery and had

evidence to proceed with representing defendant.

       At the first Marsden hearing on June 28, 2013, defendant told the court, “Now,

since the beginning of my court days - - my first court date, I’ve been asking for a Brady

motion so I could have my motion to discovery so I could see what they have against

me. I haven’t been presented with any of that and . . . .” In response, the court noted:

“In terms of discovery, you aren’t entitled to it once you’re appointed counsel through the

courts. It’s optional with [counsel] whether or not he wants to present you with the

discovery. That’s his choice.”

       Defendant then went on to state that he wanted counsel to file a motion “to present

all physical evidence. How could I go to trial without my motions of discovery or

anything like that?” He went on to state,” I want to know what’s the evidence like. They

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say this guy said my name, and I want to see - - I want to hear the recording. I want to

see the videotape. I haven’t been able to see any of that, you know? I don’t want to keep

proceeding because I haven’t seen the evidence. I need to have the evidence against me,

like - - you know?”

       To this, the court responded: “Well, Mr. King, you were present during the

conducting of the preliminary hearing, so I know that you did have an opportunity to

listen to the evidence that’s against you. So you do have, obviously, an understanding of

what that evidence is, and - -”

       When the trial court gave an opportunity for first counsel to respond, he stated that

he had his private investigator meet with defendant. At that time, “[s]he reviewed the

evidence by going over the police reports with [defendant] and wrote a report of her

meeting with him. [¶] [Defendant] did ask for a motion - - that I file a motion to, um,

suppress in which I asked him what specifically was he talking about, and he indicated all

the evidence. And I’ve indicated to him that based upon my review of the discovery and

of the preliminary hearing transcript, the evidence that was taken was incident to arrest. I

did not see any search or seizure issues.”

       At the second hearing held on December 13, 2013, the evidence again showed that

there was ample discovery conducted in this case. Second defense counsel confirmed

that defendant had an opportunity to view the videotape of the robbery at Payless and that

she was not in “cahoots” with the prosecution.




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       As to the lineup issue, first counsel promised to look into it further. The record

shows that in the Rialto Police Infield Showup Form, one of the victims stated: “I

recognize him because he was standing right in front of me.”

       Based on the record, there is nothing to indicate that defendant’s counsels’

performance was deficient in that it fell below an objective standard of reasonableness

under prevailing professional norms. In fact, the evidence shows that both counsel

worked diligently to obtain discovery and keep defendant informed about his case.

Defendant’s IAC claim fails.

       Next, we address defendant’s second brief wherein he argues that he is entitled to

additional custody credits under section 4019. Defendant states that he spent 254 total

days in custody. The trial court awarded 254 actual and 38 conduct credits under section

2933.1 for a total of 292 days of credit. Defendant contends that he is entitled to “double

of 254 days making it a total of 508 days” under section 4019. Defendant’s argument

fails because under section 2933.1, subdivision (c), “[n]otwithstanding Section 4019 or

any other provision of law, the maximum credit that may be earned against a period of

confinement in, or commitment to, a county jail, . . . following arrest and prior to

placement in the custody of the Director of Corrections, shall not exceed 15 percent of

the actual period of confinement for any person specified in subdivision (a).” A person

specified in subdivision (a) of section 2933.1 is “any person who is convicted of a felony

offense listed in subdivision (c) of Section 667.5[.]” Under section 667.5, subdivision

(c), a violent felony includes “(9) Any robbery.” In this case, defendant pled guilty to

two counts of second degree robbery. He, therefore, was limited to 15 percent of the

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actual period of confinement; 15 percent of 254 is 38.1. Here, the court properly

awarded defendant an additional 38 days of credit. There was no error.

       Finally, we address defendant’s third brief wherein he requests that his appellate

counsel be relieved. Other than asking that his current attorney of record be relieved,

defendant provides no facts or further information to support the request. The motion is

therefore denied. (People v. Marsden, supra, 2 Cal.3d 118.)

       Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

conducted an independent review of the record and find no arguable issues.

                                            IV

                                     DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               RICHLI
                                                                               Acting P. J.

We concur:


MILLER
                          J.


CODRINGTON
                          J.




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