Filed 3/30/17 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

ROARY WILLIAM GORBEA,

Defendant and Appellant.


G053504

(Super. Ct. No. 15CF1934)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Robert R. Fitzgerald. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to Cal. Const., art. VI, § 6.) Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen A. Kenealy, Acting Attorney General, Kimberly A. Donohue, Deputy Attorney General, for Plaintiff and Respondent.
We appointed counsel to represent Roary William Gorbea on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client but advised the court he found no issues to argue on Gorbea’s behalf. We gave Gorbea 30 days to file written argument on his own behalf. That time has passed, and Gorbea has not filed any written argument.
Counsel filed a brief following the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that sets forth a summary of proceedings and facts but raises no specific issues. Under these circumstances, the court must conduct an independent review of the entire record. When the appellant himself raises specific issues in a Wende proceeding, we must expressly address them in our opinion and explain why they fail. (People v. Kelly (2006)
40 Cal.4th 106, 110, 120, 124.) Gorbea did not raise any issues himself.
Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the court with its independent review, counsel provided the court with information as to issues that might arguably support an appeal. Counsel raised the following issue: whether we must vacate the true finding on the gang and on-bail enhancements because Gorbea did not admit those allegations when he pleaded guilty?
After reviewing the record, we vacated submission pursuant to California Rules of Court, rule 8.256(e)(1). We invited the parties to file supplemental letter briefs on the following issue: Whether the true finding on the Penal Code section 12022.1, subdivision (b) (on-bail enhancement) should be vacated because Gorbea did not admit those allegations when he pled?
The Attorney General requested to augment the record, and we granted that request. The Attorney General and Gorbea filed supplemental letter briefs. In his brief, Gorbea concedes the on-bail enhancement, stating “for the reasons set forth in the Attorney General’s l]etter [b]rief, the true finding to the on-bail enhancement should not be vacated.”
We have reviewed the record in accordance with our obligations under Wende and Anders. We found no arguable issues on appeal. The judgment is affirmed.
FACTS
Gorbea was before the trial court on the following three case Nos: 15NF1019, 15NF0290, and 15CF1934. Prior to Gorbea entering his pleas and admissions, the court gave an indicated sentence of a maximum of eight years. The prosecution posed a “general” objection to the court’s offer because it was “lower than the People’s.”
Case No. 15NF1019
An information charged Gorbea with the following: possession for sale of a controlled substance (Health & Saf. Code, § 11378) (count 1); misdemeanor resisting and obstructing an officer (§ 148, subd. (a)(1)) (count 2); misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) (count 3); and misdemeanor possessing controlled substance paraphernalia (Health & Saf. Code, § 11364, subd. (a)) (count 4).
As to count 1, the information alleged the following: Gorbea possessed for sale and sold 28.5 grams or more of methamphetamine, and 57 grams or more of a substance containing methamphetamine (§ 1203.073, subd. (b)(2)); that at the time of the commission of the crime Gorbea was released from custody on bail and released from custody on another case on his own recognizance (§ 12022.1, subd. (b)); and Gorbea committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1). The information also alleged he had suffered a serious and violent felony conviction
(§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), and three prior prison terms (§ 667.5, subd (b)).
Gorbea pleaded guilty to all counts and admitted the allegations, including the on-bail enhancement, and that he suffered two prior prison terms; on the prosecution’s motion, the court dismissed the serious and violent felony conviction and the third prior prison term allegations.
The factual basis of the plea was as follows: “In Orange County, California, on [April 15, 2015,] I did unlawfully possess 76 grams of methamphetamine, a usable amount of a controlled substance for the purpose of sale. I also unlawfully delayed and resisted an officer while he was discharging his duties, was under the influence of methamphetamine and possessed paraphernalia used to ingest it. I committed the sale of methamphetamine for the benefit of, at the direction of, and in association with West Side La Habra, a criminal street gang, with the intent to promote, further, and assist in the criminal conduct by the members of the gang.” The maximum sentence for these offenses was 11 years.
Case 15NF0290
An information charged Gorbea with the following: unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)) (count 1); misdemeanor causing unlawful injury to a police animal (§ 600, subd. (a)) (count 2); and misdemeanor resisting and obstructing an officer (§ 148, subd. (a)(1)) (count 3). The information alleged he had suffered a serious and violent felony conviction (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), and three prior prison terms (§ 667.5, subd (b)).
Gorbea pleaded guilty to all counts and he suffered two prior prison terms; on the prosecution’s motion, the court dismissed the serious and violent felony conviction and the third prior prison term allegations. The factual basis of the plea was as follows: “In Orange County, California, on [January 17, 2015,] I did unlawfully drive a vehicle without the owner’s permission and had started by jamming an incorrect key into the ignition with the intent to permanently deprive the owner of the vehicle. When officers tried to pull me over, I fled from the moving vehicle on foot, resisting and delaying an officer I knew was discharging his duties. I also willfully, maliciously, and unlawfully battered the police service dog multiple times in the head with force likely to cause injury.” The maximum sentence for these offenses was five years.
Case 15CF1934
An information charged Gorbea with the following offenses: possession of a controlled substance in a correctional facility (§ 4573.6) (count 1); and possession of a controlled substance for sale (Health & Saf. Code, § 11351) (count 2). The information alleged Gorbea committed counts 1 and 2 for the benefit of a criminal street gang. As to count 2, the information alleged Gorbea possessed for sale 14.25 grams or more of a substance containing heroin (Health & Saf. Code, § 11352.5, subd. (1)), and possessed for sale 14.25 grams or more of a substance containing heroin (Health & Saf. Code, § 1203.07, subd. (a)(1)). Finally, the information alleged Gorbea suffered a serious and violent felony conviction (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), and a serious felony conviction (§ 667, subd. (a)(1)).
Gorbea pleaded guilty to all counts and admitted all the enhancements; on the prosecution’s motion, the court dismissed the serious and violent felony conviction and the serious felony conviction. The factual basis of the plea was as follows: “In Orange County, California, on July 11, 2015, I knowingly, unlawfully, and without authorization possessed a useable quantity of heroin, a controlled substance while in Orange County Intake Release Center, a jail. I also did unlawfully possess for sale 15.41 grams of heroin, a useable quantity of a controlled substance. I committed the above offenses for the benefit of West Side La Habra, a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by members of that gang.” The maximum sentence for these offenses was eight years.
Sentence
The trial court sentenced Gorbea to an aggregate term of eight years as follows: on case No. 15CF1934, four years on count 2 and four years on the street terrorism enhancement; on case No. 15NF1019, concurrent with case No. 15CF1934, two years on count 1, two years on the on-bail enhancement, and four years on the street terrorism enhancement; and on case 15NF0290, concurrent with case Nos. 15CF1934 and 15NF1019, three years on count 1 and two one-year terms on the prior prison terms. Gorbea filed a timely notice of appeal on April 29, 2016, and an amended notice of appeal on May 13, 2016.
DISCUSSION
A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the possible issue raised by appellate counsel has disclosed no reasonably arguable appellate issue.
DISPOSITION
The judgment is affirmed.



O’LEARY, P. J.

WE CONCUR:



ARONSON, J.



THOMPSON, J.