California Court of Appeals, Fourth District, Second Division
APPEAL from the Superior Court of San Bernardino County No. FVI1201693. Eric M. Nakata, Judge.
Beatrice C. Tillman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ, P. J.
Defendant and appellant Alex Joe Zuniga pled no contest to active participation in a criminal street gang in violation of Penal Code section 186.22, subdivision (a),  a strike offense. In return, the remaining allegation was dismissed and defendant was sentenced to a stipulated term of 16 months in state prison with credit of 354 days for time served.
Relying on People v. Rodriguez (2012) 55 Cal.4th 1125 [150 Cal.Rptr.3d 533, 290 P.3d 1143] (Rodriguez), defendant appeals on the ground that his conviction is void because there was no factual basis for the plea as there was no evidence to show he committed the underlying offense with another gang member. The People filed a motion to dismiss, arguing that defendant’s claim is not cognizable on appeal because defendant did not obtain a certificate of probable cause. The People further assert that should this court deny the motion to dismiss, the proper remedy is to remand the matter to the trial court to allow the prosecutor to establish a factual basis since Rodriguez was decided after the plea.
FACTUAL AND PROCEDURAL BACKGROUND
On June 29, 2012, a victim of a residential burglary and a vehicle theft during the burglary saw his stolen vehicle being driven down a road and called the police for assistance. The victim followed his stolen vehicle into a gas station where he waited for the police to arrive. When police officers arrived, the victim informed them that one of the suspects fled on foot and the other suspect ran into the gas station. Police officers made contact with the female suspect inside the gas station; she was uncooperative. The officers searched the stolen vehicle and found hospital documents in defendant’s name.
The police officers subsequently contacted defendant’s parole officer who informed them that defendant was wearing a GPS ankle bracelet as a
condition of parole. The officer located defendant hiding in the backseat of a parked car. Defendant did not respond to the officers’ demands to show his hands and exit the vehicle. Officers then broke a window of the car, unlocked the doors, ...