Filed 6/27/13 P. v. Gorbea CA4/3




                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047881

                v.                                                     (Super. Ct. No. 11NF1998)

ROARY WILLIAM GORBEA,                                                  OPINION

     Defendant and Appellant.



                     Appeal from a judgment of the Superior Court of Orange County, Gregg L.
Prickett, Judge. Affirmed.
                     John L. Staley, under appointment by the Court of Appeal, for Defendant
and Appellant.
                     No appearance by Plaintiff and Respondent.
                                          *                  *                  *
              Defendant Roary William Gorbea pleaded guilty to five counts: (1)
evading a police officer (Pen. Code, § 2800.2); (2) active participation in a criminal street
gang, while carrying a loaded firearm (Pen. Code, § 12031, subd. (a)(1), (2)(C)); (3)
participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)); (4) possession of
drug paraphernalia (Health & Saf. Code, § 11364); and (5) unlawful possession of a
hypodermic syringe (Bus. & Prof. Code, § 4140). He also admitted a gang enhancement
under the second count, prior conviction allegations, and prior prison enhancements. The
court sentenced defendant to 10 years and 4 months in accordance with its indicated
sentence.
              In connection with his plea, defendant admitted the following: “I
unlawfully drove with willful and wanton disregard for the safety of persons and property
and with the intent to flee and elude a distinctively marked pursuing police officer’s
vehicle which exhibited a lighted red lamp visible from the front that I saw and sounded a
siren that I heard. The police vehicle I saw was driven by a police officer in a distinctive
police uniform. I also unlawfully carried a loaded firearm in the vehicle I drove as I
evaded on public streets while I unlawfully actively participated in West Side La Habra, a
criminal street gang, knowing its members have and continue to engage in a pattern of
criminal gang activity, and did willfully and unlawfully promote[,] further[,] and assist in
felony criminal conduct by member of West Side La Habra by possessing this loaded
firearm and evading the police. I committed the above offenses for the benefit of West
Side La Habra with the specific intent to promote, further, and assist in criminal conduct
by members of West Side La Habra. I also unlawfully and knowingly possessed devices
used to smoke and inject controlled substances and a hypodermic needle and syringe.”
              After the plea and before sentencing, defendant moved to dismiss his court
appointed attorney and appoint new attorneys; the court denied the motion. The parties




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also stipulated to allow defendant to file a post-guilty plea suppression motion; the court
denied the motion.
              Defendant filed an appeal and appointed counsel filed a brief pursuant to
People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and
requesting that we review the entire record. Counsel did not suggest any issue for our
consideration. Defendant was granted 30 days to file written arguments on his own
behalf and he filed a brief noting several issues which we discuss below and find to be
without merit. In addition to considering those raised by defendant, we have examined
the entire record looking for issues. But, after considering the entire record, we found no
reasonably arguable issues. (Wende, supra, 25 Cal.3d at p. 441.) We therefore affirm the
judgment.


1. Denial of Marsden Motion
              Defendant made a motion under People v. Marsden (1970) 2 Cal.3d 118, to
ask for new counsel. We reviewed the transcript of that hearing and found that the court
gave defendant a full opportunity to explain his reasons for wanting new counsel. None
of these reasons indicate that defendant was receiving inadequate assistance of counsel or
that there was a conflict between defendant and his attorney. The motion was
appropriately denied.


2. The Suppression Motion was Properly Denied
              The suppression motion solely dealt with the DNA that had been obtained
in connection with an earlier arrest. The recovered firearm had DNA that was found to
match the DNA taken from defendant pursuant to a search warrant in connection with the
earlier arrest. The only issue raised was the process by which the earlier DNA had been




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obtained and, based on the evidence, the court appropriately denied the suppression
motion.


3. Issues Raised by Defendant
               As far as we can ascertain, defendant contends, relying on People v. Robles
(2000) 23 Cal.4th 1106, the prosecution failed to prove his earlier conviction for
possession of a gun was a felony. That case deals with the elements that must be proved
to establish possession of a firearm is a felony. It holds that before the gang participation
raises the possession to a felony, the prosecution must prove all of the elements of Penal
Code section 186.22, subdivision (a) and that failure to furnish such proof reduces the
crime to a misdemeanor. But since the present case involves a guilty plea and an
admission of the enhancements, the kind of proof that would have been required had the
case been tried is not relevant.
               Defendant also appears to argue that his earlier conviction, which was the
basis of an admission of a prior conviction, was similarly inappropriate. Because we do
not have a record of the earlier conviction, we cannot evaluate this claim but, again,
because this case involves a plea wherein defendant admitted the prior felony conviction,
we cannot now evaluate whether the prosecution would have been able to prove this.
               All of defendant’s arguments appear to deal with the absence of evidence.
But where the defendant has pleaded guilty, we cannot evaluate whether all of the
elements of the crimes or the enhancements could have been proved if he had elected to
go to trial. Nor is it our task to do so.




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                                  DISPOSITION


            The judgment is affirmed.




                                            RYLAARSDAM, ACTING P. J.

WE CONCUR:



BEDSWORTH, J.



FYBEL, J.




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