People v. Beavers CA3

Filed 7/8/15 P. v. Beavers CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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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.