Opinion
G053465
12-20-2016
THE PEOPLE, Plaintiff and Respondent, v. ROARY WILLIAM GORBEA, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15NF0290) OPINION Appeal from a judgment of the Superior Court of Orange County, Robert R. Fitzgerald, Retired Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to Cal. Const., art. VI, § 6.) Appeal dismissed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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Defendant Roary William Gorbea was charged by information with the following offenses: (1) felony unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a), count 1); (2) misdemeanor causing injury to a police animal (Pen. Code, § 600, subd. (a), count 2); and (3) misdemeanor resisting a peace officer (Pen. Code, §148, subd. (a)(1), count 3). The information also alleged defendant had been convicted previously of a serious and violent felony within the meaning of Penal Code section 667, subdivision (d) and (e)(1), and previously had served three prior prison terms within the meaning of Penal code section 667.5, subdivision (b).
Defendant pleaded guilty to all counts and admitted two prior prison term enhancements. The prior strike conviction and the associated prison prior term enhancements were stricken on the People's motion as being "invalid." As the factual basis for his plea, defendant offered the following: "[O]n 1/17/15 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."
As part of the plea, defendant waived his "right to appeal from any and all decisions and orders made in [his] case, including motions to suppress evidence brought pursuant to Penal code section 1538.5." Defendant also waived his "right to appeal from [his] guilty plea" and his "right to appeal from any legally authorized sentence the court imposes which is within the terms and limits of this plea agreement."
The court sentenced defendant to the upper term of three years for the unlawful taking of a vehicle, and two consecutive one year terms for the prison priors. Thus, the aggregate sentence was five years. The court stayed imposition of sentence on the two misdemeanor counts and awarded custody credits of 262 days actual custody and 262 days of conduct credit for a total credit of 524 days.
Defendant timely appealed the judgment and we appointed counsel to represent him. Counsel did not argue against defendant, but advised the court he was unable to find an issue to argue on defendant's behalf. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was given an opportunity to file written argument on his own behalf, but he has not done so. And counsel has not identified any issues to guide us in our independent review of the record.
Our independent review of the record has confirmed counsel's conclusion. There are no arguable issues on appeal. Defendant waived his right to appeal, including his right to appeal from any legally authorized sentence within the terms and limits of his plea agreement. As part of the plea agreement, defendant stated he "voluntarily agree[d] and understood the court [would]" "[s]entence [him] to state prison for a period of 5 years and 0 months, credit for time served of 262 days actual custody and 262 days of good time/work time for a total credit of 524 days." This is precisely the sentence the court imposed, and it was legally authorized. (See Veh. Code, § 10851, subd. (a) [felony sentence is imposed pursuant to Pen. Code, § 1170, subd. (h)]; Pen. Code §§ 1170, subd. (h) [high term of three years], 667.5, subd. (b) [one year for each separate prior prison term].)
Accordingly, defendant having waived his right to appeal, his appeal is dismissed.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.