Filed 5/18/15 P. v. Koonce 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068581
         Plaintiff and Respondent,
                                                                         (Kings Super. Ct. No. 13CM3525)
                   v.

D’MICKY MARVELL KOONCE,                                                                  OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. Steven D.
Barnes, Judge.
         Katharine Eileen Greenebaum, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-




         *   Before Levy, Acting P.J., Poochigian, J. and Smith, J.
                                     INTRODUCTION
       Appellant/defendant D’Micky Marvell Koonce pleaded guilty to second degree
robbery and misdemeanor resisting arrest, and was sentenced to the second strike term of
six years. On appeal, his appellate counsel has filed a brief that summarizes the facts
with citations to the record, raises no issues, and asks this court to independently review
the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We affirm.
                                           FACTS
       Around 9:50 p.m. on July 13, 2013, six or seven juvenile males entered the Save
Mart grocery store in Lemoore, huddled around the liquor shelves, grabbed liquor bottles,
and ran toward one of the store’s two exits. The store’s manager followed them. As they
reached the door, the juveniles realized it was locked and headed to the second exit. The
manager ran to the side and stood in front of the door to stop them. The manager
recognized defendant as one of the juveniles – based on prior contacts with him.
       Defendant was carrying two bottles of liquor as he headed for the door. He
reached out and hit the manager in the left eye with his closed fist, ran out of the store,
and dropped one of the bottles. The rest of the group escaped behind him except for one
juvenile who was detained. The manager felt dazed by the blow, but he did not require
medical attention.
       Officer Brandon Cooper reviewed the store’s surveillance videotape and
recognized defendant and the other juveniles from his work at Lemoore High School.
       On the evening of August 8, 2013, Officer Johns saw defendant and attempted to
speak to him about the grocery store incident. Johns tried to contact defendant, but
defendant jumped a fence and ran away. Defendant was later located in the area.
Procedural History
       On November 1, 2013, an amended information was filed in the Superior Court of
Kings County charging defendant with count I, robbery (Pen. Code, § 211); 1 count II,

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

                                               2.
commercial burglary (§ 459); count III, active participation in a criminal street gang
(§ 186.22, subd. (a)); and count IV, misdemeanor resisting an officer (§ 148,
subd. (a)(1)), with the gang enhancement alleged as to counts I, II, and III (§ 186.22,
subd. (b)(1)). It was alleged defendant had one prior strike (§ 667, subds. (b)–(i)), based
on a juvenile adjudication for knowingly and maliciously dissuading a witness by force in
2012 (§ 136.1, subd. (c)), and that he was a minor, but at least 16 years old, when he
committed the offenses (Welf. & Inst. Code, § 707, subd. (d)(1)).2
       On the same day, defendant pleaded guilty to count I, second degree robbery, and
count IV, misdemeanor resisting an officer, and admitted the prior conviction and the
Welfare and Institutions Code section 707, subdivision (d)(1) allegation, pursuant to an
agreement that left the court with sentencing discretion. The remaining charges and gang
enhancements were dismissed.
       On December 4, 2013, the court imposed the midterm of three years, doubled to
six years as the second strike sentence, with a concurrent term for count IV.
       On December 13, 2013, defendant filed a timely notice of appeal; he did not
request or obtain a certificate of probable cause.
                                      DISCUSSION
       As noted above, defendant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that defendant was
advised he could file his own brief with this court. By letter on April 10, 2014, we
invited defendant to submit additional briefing. To date, he has not done so.




       2 At the preliminary hearing, a gang expert testified defendant had previously been
ordered to register as a gang member, he claimed membership in the Lemoore Gangster
Crips, and three of the juveniles who were in the store with him were known members of
the same gang. According to the probation report, defendant had an extensive juvenile
record, and he was on active juvenile probation when he committed the instant offense.


                                             3.
       After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
                                    DISPOSITION
       The judgment is affirmed.




                                           4.
