Filed 11/20/13 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E058144

v.                                                                       (Super.Ct.No. FVA1201588)

RASHAD LAMAR KING,                                                       OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Ronald M.

Christianson, Judge. Affirmed.

         Richard Power, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant and appellant Rashad Lamar King pleaded guilty to one count of

second degree robbery, and admitted a gun-use enhancement. He received an agreed

sentence of eight years: five years for the robbery and three years on the gun



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enhancement. Defendant filed a notice of appeal after the plea, challenging both the

sentence or other matters occurring after the plea and not affecting the plea, as well as the

validity of the plea itself. The trial court denied defendant’s request for a certificate of

probable cause (required for issues challenging the validity of the plea). We affirm the

judgment.

                         FACTS AND PROCEDURAL HISTORY

       Defendant and two companions committed an armed robbery of a convenience

store. The robbers parked their car on a cul-de-sac. Two of the men alighted from the

car and used a shortcut path from the cul-de-sac through to the main street outside the

residential area where they had parked. The store surveillance camera showed that the

two men entered the store. One of the robbers displayed a handgun, went behind the

counter, pointed the gun at the clerk, and demanded money from the cash registers. The

other robber stayed in front of the counter; he had one hand in a pocket, and acted as if he

had a gun. After taking the cash from the registers, the robbers also demanded cigarettes.

The robbers took the money and cigarettes and ran from the store.

       Although the robbers wore bandanas over their faces, defendant was identified as

the gun-wielding robber from the clothing and shoes shown on the surveillance video.

Codefendant Pickett was identified as the other robber in the store, by means of a

distinctive embroidered shirt he was wearing.

       When the robbers left the store, the clerk called 911. Officers soon detained the

three men; a search of the car turned up cash and cigarettes, as well as a revolver in the



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pocket of a jacket found in the car. Codefendant Clay said that the car was his

girlfriend’s, and that he had been driving it.

       After receiving this testimony in the preliminary hearing, the trial court held

defendant to answer on charges of both robbery and being a felon in possession of a

firearm, as well as enhancement and prior conviction allegations. The court held

codefendant Pickett to answer for the robbery, but not for personal use of a firearm.

Codefendant Clay was not held to answer on charges of possession of a firearm; under

the facts presented, his most likely participation had been as the driver of the vehicle, not

as a robber in the store.

       Eventually, each of the codefendants entered a plea agreement.1 Codefendant

Clay agreed to have a count added to the information and pleaded guilty to a charge of

being an accessory after the fact to the robbery (Pen. Code, § 32). He received a sentence

of 16 months, doubled to 32 months as a second striker. Codefendant Pickett pleaded

guilty to second degree robbery and received a midterm sentence of three years.

Defendant pleaded guilty to second degree robbery and admitted a firearm enhancement,

receiving the agreed-upon immediate sentence of a five-year aggravated term on the

robbery, plus a three-year term for the gun enhancement, for a total of eight years. In

exchange, the court dismissed the charge of a felon in possession of a firearm, as well as


       1 Defendant’s two codefendants entered into plea agreements just before the
scheduled trial date. On January 7, 2013, the date set for trial, defendant informed the
court that he wanted to represent himself. The court informed defendant that trial would
begin the following day, January 8. Defendant then decided to plead also.


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allegations that he had a strike prior, a prison term prior, and a prior serious felony

conviction.

       After his guilty plea, defendant filed a notice of appeal, complaining that his rights

were violated because he had asked his attorney multiple times for preliminary hearing

transcripts, discovery, and, more particularly, a statement that had been made by one of

the codefendants. Defendant averred that, “[m]y attorney stated to me that I was not

entitled to the requests, only she was allowed to see the case and evidence. She also

failed to notify the courts of the statement that was made.” After defendant was

frustrated in his attempts to gain personal access to the materials he requested, he then

“attempted to go ‘pro per’ and I had notified my attorney I wanted to do so, but I was told

if granted I would proceed to trial the next day.” Defendant argued that he was “being

discouraged to exercise my rights to do something.” Although defendant thought he

could win his case, his attorney “was being bias[ed] with all of my requests,” and she

“pressured me on signing[,] stating I will not be able to win my case[.] I should sign the

deal its [sic] the best offer I can get.” Defendant “asked numerous times for a

dismissal[,] but [the attorney] refused.” Defendant also claimed the sentence was

incorrect, as he was sentenced to the upper term of 2-3-5 years, whereas he was

“supposed to receive 16-2-3.”

       Included with his notice of appeal, defendant also filed a request to recall his

sentence, based essentially on the same grounds as the notice of appeal: “I would like to

take my plea back because I was not given my ‘Discovery.’ I also asked the court to



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allow me to go pro per and was denied and told if I was to go pro per I would proceed to

trial the next day, discouraging me from exercising my right to do something. On my

2nd degree robbery charge I recieved [sic] 2-3-(5) but they were suppose[d] to give me

16-2-3.”

                                        ANALYSIS

       Defendant appealed and filed a request to recall his sentence. On 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 [87

S.Ct. 1396, 18 L.Ed.2d 493], setting forth a summary of the facts and a statement of the

case, as well as identifying the issues or claims defendant raised in his notice of appeal

and request to recall the sentence. Counsel has also requested the court to undertake an

independent review of the record.

       Defendant has been offered the opportunity to file a personal supplemental brief,

which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th

106, we have conducted an independent review of the entire record, and have discovered

no arguable issues.

       Defendant failed to obtain a certificate of probable cause to proceed with an

appeal on grounds challenging the validity of the plea. None of the grounds he sets forth,

other than his contention that the sentence was not proper, is therefore cognizable on

appeal. (Pen. Code, § 1237.5; People v. Panizzon (1996) 13 Cal.4th 68, 76.)




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       The failure or refusal of defendant’s trial counsel to give him personal copies of

any discovery, while she was counsel of record, does not present any ground to reverse

the judgment. (People v. Vidal (1962) 209 Cal.App.2d 442, 449 [Counsel of record for a

defendant has the right to control the proceedings on behalf of the client.].)

       Defendant was not prevented from exercising his right to represent himself.

Rather, he moved to represent himself on the very day originally set for trial, and was

informed by the court that, if he wished to do so, he should expect to proceed to trial the

next day. The trial court is not required to allow defendants to trifle with the courts by

making last-minute (untimely) requests for self-representation as a means of delaying the

proceedings. (See People v. Powell (2011) 194 Cal.App.4th 1268, 1277-1278.)

       The proper sentencing range for second degree robbery is two, three or five years,

set by statute. (Pen. Code, § 213, subd. (a)(2).) Defendant bargained for a specific

sentence, and that is exactly what he received. He received several distinct benefits from

the plea bargain, including dismissal of a serious prior felony conviction and other

allegations, as well as other substantive offenses. (People v. Vargas (1993) 13

Cal.App.4th 1653, 1662-1663, fn. 6 [Fourth Dist., Div. Two] [Defendants who have

received the benefits of their bargain should not be allowed to “trifle with the courts” by

trying for a better bargain on appeal.].)

       There is no merit to defendant’s claims.




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                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                               McKINSTER
                                                           Acting P. J.
We concur:



RICHLI
                       J.



CODRINGTON
                       J.




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