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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 8.11 15(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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v. GREGORY WAYNE QUINN,

D efendant and Appellant. F066604
(Super. Ct. No. F12903927)

OPINION

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 an d Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

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* Before Gomes, Acting P.J., Poochigian, J., and Franson, J.2

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 4 3 6, we affirm.

FACTUAL AND PROCEDURAL HISTORY
S h ortly before 10:00 p.m. on May 2 9 , 2012, victim one drove with victim two to an apartment complex in Fresno to buy marijuana from Quinn. After parking a t 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 ha d misfired.
Victim two saw vic tim one run ning 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, h e 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 mar ijuana

. Meanwhile, victim two fled and located some police officers at a nearby apartment complex. While an officer spoke with victim two , other officer s contacted Quinn inside a
gray car that matched the description of the car in which the robber left t he scene of the
robberies. Victim two was driven to the location and identified Quinn as the man who
robbed him. Victim one also i dentified Quinn as the man who robbed him. Quinn
identified himself with a false name to the officers. On November 9, 20 12 , 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 count s 1 and 2, and three3

prior prison term enhancements (§ 667.5, subd. (b)). The information also alleged that Quinn had two prior conviction s 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 str ikes. 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 Fe bruary 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 inde pendently review the record. ( People v. Wende , supra , 25 Cal.3d 436.) Howe ver , 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 adequate ly 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 impea ch the vi ctims ’ testimony with
inconsistent statements , and failed to object to certa i n unspecified evidence; and 3) his appellate counsel provided ineffective assi s tance of counsel because he failed to review the appellate record and raise reasonably arguable issu es. Quinn’s claim that he received ineffective assistance at his preliminary hearing
raises issues that a re 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 tha t he was4

denied the effective assistance of counsel in entering his plea is foreclosed by his failure to obtain a certificate of probable cause. ( People v. Pani z zon (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 determ ining whether a criminal defendant received
ineffectiv e assistance of counsel is well settled. The court must first determine whether
counsel ’s representation ‘ fell below an objective standard of reasonableness. ’ [Citation.]
T he court then inquires whet her ‘ there is a reasonable pr obability 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

- 2 35 .) Quinn has not identified any reasonably arguable issues that appellate counsel
failed to raise. T hus , there is no merit to Quinn ’ s content i on that appellate counsel provided ineffective representation

. F ollowing an independent review of the record we find that no reasonably arguable factual or legal issues exist.
DISPOSITION The judgment is affirmed.