Filed 5/24/17 P. v. Kincy CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 8.1115(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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE


THE PEOPLE,

Plaintiff and Respondent,

v.

DUNIFU ALI KINCY,

Defendant and Appellant.
B276635

(Los Angeles County
Super. Ct. No. GA071703)
APPEAL from a judgment of the Superior Court of Los Angeles County, Jared D. Moses, Judge. Affirmed. Dunifu Ali Kincy, in pro. per.; and Linda L. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
___________________
BACKGROUND
A. Direct Appeal
On September 24, 2008, a jury convicted Dunifu Ali Kincy (Kincy) of two counts of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b); counts 1, 5) as well as one count of shooting a firearm with gross negligence (§ 246.3, subd. (a); count 2), one count of being a felon in possession of a firearm (§ 12021, subd. (a); count 4) and one count of carrying a loaded firearm while an active participant in a street gang (§ 12031, subd. (a); count 6).
The jury also decided that each of these crimes was committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C).) With respect to count 1, the jury determined that a principal was armed with a firearm in the commission of an assault (§ 12022, subd. (a)(1).) With respect to count 5, the jury further found that Kincy personally used a firearm in the commission of an assault (§ 12022.5, subd. (a).) Kincy also admitted a section 667.5, subdivision (b), prison term enhancement allegation.
The trial court sentenced defendant to a total of 24 years in prison. The court calculated the sentence as follows: On count 5 (§ 245, subd. (b)—the principal count), the court sentenced Kincy to the midterm of six years plus an additional 10 years for the gang enhancement (§ 186.22, subd. (b)(1)(C)) and another four years for the personal use of a firearm enhancement (§ 12022.5, subd. (a)).)
On count 1, the court sentenced Kincy to two years (one-third of the midterm) plus four months for the principal armed with a firearm enhancement (one-third of the maximum one-year term). On count 2, the court sentenced Kincy to two years but stayed the sentence. On count 4, the court sentenced Kincy to eight months (one-third of the midterm). On count 6, the court sentenced Kincy to two years to run concurrently. The court also imposed an additional one year for a prior prison conviction.
In an unpublished opinion handed down on April 26, 2010, we modified the sentence on count 6 to an eight-month term, which was stayed pursuant to section 654. We affirmed the judgment in all other respects. (People v. Kincy (Apr. 26, 2010, B212639) [nonpub. opn.].)
B. Habeas Petition
On December 28, 2015, Kincy filed a petition for writ of habeas corpus in the trial court. In his petition, Kincy contended that two recent California Supreme Court cases had rendered his sentence illegal. Relying upon People v. Rodriguez (2009) 47 Cal.4th 501 (Rodriguez) and People v. Le (2015) 61 Cal.4th 416 (Le), Kincy argued that he should not have been sentenced for both the personal use of a firearm enhancement (§ 12022.5, subd. (a)) and the gang enhancement (§ 186.22, subd. (b)(1)(C)) on count 5. Kincy sought a new 15-year sentence.
On April 27, 2016, the People filed a detailed informal response to the habeas petition. The People acknowledged that Kincy had established a prima facie case for habeas relief and agreed he should be resentenced. However, the People noted, the Le, supra, 61 Cal.4th 416 case left open the consecutive application of section 186.22, subdivision (b)(1)(A), to charges in which a defendant personally uses a firearm (§ 12022.5, subd, (a)) or a principal is armed with a firearm (§ 12022, subd. (a)(1)) when the defendant is convicted of assault with a semiautomatic firearm (§ 245, subd. (b).) The People urged the court to do so when resentencing Kincy. The People also noted that the trial court had overlooked several other sentencing enhancements when initially sentencing Kincy and urged the court to impose them upon resentencing. In all, the People now sought a 29-year sentence. On May 12, 2016, Kincy filed a reply.
The resentencing hearing took place on July 19, 2016. The court first noted that Kincy had been sentenced to six years (the midterm) for the assault with a semiautomatic firearm offense in count 5 plus an additional 10 years for the gang enhancement and another four years for the personal use of a firearm enhancement. However, the court found, the 10-year gang enhancement had to be stayed pursuant to Rodriguez, supra, 47 Cal.4th 501 and Le, supra, 61 Cal.4th 416. The court then noted that the sentencing judge had made additional errors, including neglecting to sentence Kincy on the gang allegations in counts 1, 4 and 6. Citing People v. Sinclair (2008) 166 Cal.App.4th 848, the court also found that the principal armed with a firearm allegation should not have been added to count 1.
Despite the sentencing judge’s main error—adding a 10-year sentence on count 5 for the gang enhancement—the court stated that it was not “simply going to strike the 10 years and send [Kincy] to state prison for 14 years down from 24.” Rather, “[m]y goal is to effectuate the intent of the sentencing judge.” “It was that judge . . . who presided over the jury trial, who heard all of the evidence, and who made her determination of what the appropriate sentence would be. So, in resentencing, my goal is going to be to effectuate her intent, correct the sentencing errors. And, yet, if I can arrive right at 24 years, that’s what I’m going to do.” The court also rejected the People’s contention that it could impose a higher sentence on resentencing, stating that, “You can’t punish somebody for successfully bringing a writ. You can’t go more than 24 [years]. That’s my view.” Both the People and defense counsel agreed with the court’s position.
The People also conceded that Kincy could not be sentenced for both the personal use of a firearm and violent felony gang enhancements but noted that no case law addressed whether he could be sentenced for both personal use of a firearm and felony gang enhancement. The court declined to decide the issue, noting, “Why raise an issue that doesn’t need to be raised? If I can get to 24 years without having to raise that issue, why go down that road?”
The court then held in-chambers conference with the People and defense counsel and reread Rodriguez, supra, 47 Cal.4th 501 and Le, supra, 61 Cal.4th 416. Based on its reading of the cases, the court determined it could not impose the 10-year gang enhancement (§ 186.22, subd. (b)(1)(C)) or the 5-year gang enhancement (§ 186.22, subd. (b)(1)(B)) on count 5. As a result, the personal use of a firearm enhancement (§12022.5, subd. (a))—which carries a 3, 4 or 10-year sentence—became the greater of the enhancements under section 1170.1, subdivision (f). The court stated it would be imposing the maximum 10-year sentence for the firearm allegation while staying the sentence for the gang allegation.
Kincy argued that the firearm allegation had rendered his assault with a semiautomatic firearm conviction a “violent felony” under section 667.5. This, in turn, had elevated the gang enhancement to a 10-year term pursuant to section 186.22, subdivision (b)(1)(C). Kincy reasoned that if the court struck the firearm allegation, and, therefore, the violent felony designation for his base felony, the court could then apply the 5-year gang enhancement, rather than the 10-year gang enhancement, in his case. According to Kincy, the Le, supra, 61 Cal.4th 416 case mandated this result. The court disagreed with Kincy’s analysis. “Don’t mix up the charges with the sentencing issue,” the court cautioned Kincy. “It’s still a violent felony. And the reason it’s a violent felony is because [the jury] found true the gun allegation. It’s always going to be a violent felony.” “[Y]ou’re mixing up the charge and the allegations, what you were convicted of and were found true and the sentencing aspects.”
The court reiterated that it wanted to impose a sentence as close as possible to the 24 years originally imposed by the sentencing judge. The court then stated it had recalculated Kincy’s sentences and arrived at a 23-year 8-month sentence. Addressing Kincy, the court observed: “I know you wanted more [than] that. But the fact is, look, I’ve got to give you what the trial court gave. I got to recalculate it under the law, fix the mistakes, and yet still effectuate the trial court’s intent in creating a sentence in this case.”
The court then resentenced Kincy on count 5, first imposing a nine-year sentence (the high term) for the assault with a semiautomatic firearm offense. The court then imposed a 10-year sentence for the personal use of a firearm allegation. The court imposed and stayed a five-year sentence for the gang allegation.
On count 1, the court sentenced Kincy to two years (one-third of the midterm) for the assault with a semiautomatic firearm offense. The court then imposed a one-year sentence (one-third the midterm) for the gang allegation. The court stayed the sentence originally imposed for the principal armed with a firearm allegation.
On count 2, the court sentenced Kincy to two years (one-third of the midterm) for the grossly negligent discharge of a firearm offense but stayed the sentence. The court also imposed and stayed a five-year sentence for the gang allegation. On count 4, the court sentenced Kincy to eight months (one-third of the midterm) for the felon in possession of a firearm offense. The court also imposed a one-year sentence (one-third of the midterm) for the gang allegation. On count 6, the court sentenced Kincy to two years (one-third the midterm) for the carrying a loaded firearm offense but stayed the sentence. The court also imposed and stayed a three-year sentence for the gang allegation.
Lastly, the court struck the one-year sentence originally imposed for the prison prior conviction. “If I were to impose that, that would get us to 24 years and eight months, which would exceed Mr. Kincy’s original [24-year] sentence and I believe would be improper and reversible,” the court noted. In all, the court sentenced Kincy to 23 years 8 months.
The court granted Kincy 360 days of actual custody credit plus 54 days of good time/work time credit for a total of 414 days of custody credit.
C. Current Appeal
Kincy filed a timely notice of appeal on August 18, 2016, but did not identify any grounds for relief. We appointed counsel to represent Kincy on appeal. After examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record. We have examined the entire record and are satisfied that Kincy’s counsel fully complied with his responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109–110; People v. Wende (1979) 25 Cal.3d 436, 441–442.)
D. IAC Claim in Supplemental Brief
On April 10, 2017, Kincy filed a supplemental brief. In his brief, Kincy contends that he “was deprived of adversarial representation during a crucial part of the sentencing phase when appointed counsel failed to produce and submit rebuttal mitigating factors as instructed by the Judge.” Kincy specifically points to counsel’s failure to file a sentencing memorandum and his failure to review the Le, supra, 61 Cal.4th 416 opinion before the resentencing.
The standard of review for an ineffective assistance of counsel claim is well settled. To prevail, a defendant must show that counsel’s performance fell below prevailing professional standards and was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687–694.) To prove prejudice, the defendant must demonstrate a “ ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (People v. Ledesma (1987) 43 Cal.3d 171, 217–218.) “ ‘ “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” ’ ” (People v. Weaver (2001) 26 Cal.4th 876, 925.)
Here, the court engaged in a detailed analysis of the errors committed during Kincy’s first sentencing. Indeed, the court’s preparation and mastery of the applicable law, as well as the facts of the underlying case, were apparent throughout the hearing. Furthermore, although Kincy was represented by counsel, the court frequently engaged in direct and extensive colloquies with Kincy, repeatedly remarking on Kincy’s demonstrated legal acumen. It is clear from our independent review of the record that Kincy’s claims received a full and fair hearing. Furthermore, as discussed above, we have determined that no arguable substantive issues exist here. Thus, Kincy cannot show that but for sentencing counsel’s alleged errors, the result of the proceeding would have been different.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.


JOHNSON, J.

We concur:


ROTHSCHILD, P. J.


LUI, J.