Filed 7/8/15 P. v. Beavers CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C073720

                   Plaintiff and Respondent,                                     (Super. Ct. No. 12F03869)

         v.

MARCUS JAMAL BEAVERS,

                   Defendant and Appellant.




         Defendant Marcus Jamal Beavers has a long criminal history, both as a juvenile
and as an adult. A prior conviction in 2010 for actively participating in a criminal street
gang is at the heart of the present dispute. (Pen. Code, § 186.22, subd. (a); unless
otherwise set forth, statutory references that follow are to the Penal Code.)
         In this case, defendant was convicted of second degree robbery, assault with a
firearm, and possession of hydromorphone. (§§ 211 & 245, subd. (a)(2); Health & Saf.
Code, § 11350, subd. (a).) Given defendant’s 2010 criminal street gang conviction,


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which was a strike which was alleged and which the court found true, the court sentenced
defendant to 16 years four months with a prison prior under California’s three strikes law.
(§§ 667, 667.5 & 1170.12.)
       Shortly before defendant’s trial, our Supreme Court decided People v. Rodriguez
(2012) 55 Cal.4th 1125, 1131-1132 (Rodriguez), which held that subdivision (a) of
section 186.22 requires proof that a defendant promoted, furthered, or assisted felonious
conduct by members of the gang, and that this element is not satisfied when a defendant
acts alone in committing a felony. Based on Rodriguez, defendant argues he should not
have been sentenced as a second striker because the underlying 2010 prior conviction
was not a strike since no evidence showed he acted with at least one other gang member.
       Because defendant pleaded guilty to actively participating in a criminal street gang
under section 186.22, subdivision (a), he necessarily admitted every element of that
offense, including that he promoted, furthered, or assisted felonious conduct by members
of the gang. We therefore affirm the judgment as defendant’s prior conviction qualified
as a serious felony for purposes of the three strikes law.

                                 FACTS AND PROCEEDINGS

       A detailed recitation of the facts underlying the charges in the present matter is not
necessary to resolve the issues raised on appeal. Briefly summarized, defendant and the
victim met at an apartment complex in Sacramento County so he could purchase
prescription pills from the victim. At the meeting, defendant brandished a gun and
demanded everything the victim had. After hitting the victim in the head, defendant took
money, personal property, and numerous other prescription pills from the victim. A few
days later, defendant was arrested with pills matching the type, size, shape and
prescription of those taken from the victim.
       An amended information charged defendant with second degree robbery (§ 211),
assault with a firearm (§ 245, subd. (a)(2)), and possession of hydromorphone (Health &


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Saf. Code, § 11350, subd. (a)). The information alleged defendant personally used a
firearm during the robbery and assault, and that he had suffered a prior serious felony
conviction making him eligible for sentencing under the three strikes law. (§§ 667,
subds. (a), (b)-(i), 1170.12 & 1192.7, subd. (c)(28).)
       The prior conviction alleged was a conviction from 2010 for actively participating
in a criminal street gang in violation of section 186.22, subdivision (a). Defendant
pleaded guilty to the charge.
       In April 2013, a jury convicted defendant of all substantive offenses, but found the
personal firearm use allegations not true. In a bifurcated proceeding, the court found
defendant had suffered a prior strike conviction based on section 186.22, subdivision (a).
The court found true that defendant had served a prior prison term. The court denied
defendant’s suggestion that the court should strike the prior strike conviction for the
purpose of sentencing him in the present matter, citing defendant’s extensive criminal
history, his parole violation, his bleak future prospects given his interest in continuing to
commit criminal conduct in the community, and the violent nature of the current crimes.

                                        DISCUSSION

       Defendant contends the court erred in finding he suffered a prior strike based on
his 2010 conviction for active participation in a criminal street gang. Because, as the
argument goes, his prior conviction was not a strike, he further contends that enhancing
his sentence based on the conviction violates ex post facto principles. Defendant’s
argument is premised on the assumption that no evidence shows he acted with other gang
members at the time of the 2010 offense, which the statute requires according to
Rodriguez for a valid section 186.22, subdivision (a) conviction. (Rodriguez, supra,
55 Cal.4th at pp. 1131-1132.)
       According to defendant, while police reports of the incident show he was with
other people at the time, no evidence establishes that those people were in fact gang


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members. Mere proof of the conviction, which was introduced by the prosecution, is
insufficient in defendant’s mind to establish the elements of a section 186.22, subdivision
(a) violation. In the absence of such evidence, defendant argues he should not have been
convicted of the substantive criminal street gang offense under section 186.22,
subdivision (a) and, thus, the 2010 conviction does not qualify as a strike for sentencing
purposes in this case.
          Defendant, however, fundamentally misapprehends the consequence of his guilty
plea to the active participation in a criminal street gang offense. A plea of guilty admits
every element of a charged offense. (People v. Watts (2005) 131 Cal.App.4th 589, 595.)
It also constitutes a “conclusive admission of guilt.” (People v. Westbrook (1996)
43 Cal.App.4th 220, 223-224.) “It waives any right to raise questions about the evidence,
including its sufficiency.” (People v. Lobaugh (1987) 188 Cal.App.3d 780, 785.)
          Defendant’s 2010 guilty plea, then, conclusively proves that he promoted,
furthered, or assisted felonious conduct by members of the gang, one of the elements of
section 186.22, subdivision (a). (§ 186.22, subd. (a); Rodriguez, supra, 55 Cal.4th at
p. 1130 [section 186.22, subdivision (a) offense has three elements].) His complaint that
the evidence was insufficient to support the conviction is not cognizable on appeal.
(Ibid.)
          Because the evidence presented to the court here showed defendant was convicted
of violating section 186.22, subdivision (a) after his plea of guilty to that charge, his
sentence was properly enhanced under the three strikes law. (§§ 667, 1192.7, subd.
(c)(28) & 1170.12.) The court did not err in sentencing defendant in this matter.
          We recognize that under certain circumstances a defendant may seek to withdraw
a guilty plea. (People v. Quesada (1991) 230 Cal.App.3d 525, 531, fn. 2 [“ ‘a motion to
set aside a judgment of conviction and for permission to withdraw a plea of guilty may
ordinarily be considered as a petition for writ of error coram nobis’ ”]; § 1018 [upon a
showing of good cause, a defendant may withdraw his guilty plea before the entry of

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judgment].) Nothing in the record before the court indicates that defendant has sought to
withdraw his guilty plea, or that such a request, if made, was granted. This is not a matter
that can be considered on appeal.

                                       DISPOSITION
       The judgment is affirmed.



                                                       HULL                  , Acting P. J.



We concur:



      MAURO                 , J.



      DUARTE                , J.




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