Filed 2/4/15 P. v. Leal CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. MICHAEL DANIEL LEAL, Defendant and Appellant. F067518 (Super. Ct. No. BF143613A)



### OPINION

THE COURT * APPEAL from a judgment of the Superi or Court of Kern Co unty. Colette M. Humphrey, Judge. Emry J. Allen, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacr amento, California, for Plaintiff and Respondent.
-ooOoo-

* Before Cornell, Acting P.J ., Kane, J. and Poochigian, J.2. INTRODUCTION On May 1, 2013, appellant Michael Daniel Leal entered a plea of no contest to first degree burglary (Pen. Code, § 460, subd. (a)) 1 and a misdemeanor count of violating section 647.6, annoying or molesting a child under 18 years of age. He also admitted prior conviction, prior prison term, and prior strike enhancements. In exchange for his plea and stipulating to a 14-year prison sentence, several other serious felony counts were dismissed. The following mont h Leal sought to withdraw his plea. That motion was
denied and Leal was sentenced in accordance with the plea. We review this appeal pursuant to People v. Wende (1979) 25 Cal.3d 436.
FACTUAL AND PROC EDURAL SUMMARY An information was filed against Leal on September 18, 2012. The information charged Leal with (1) first degree burglary, in violation of section 460, subdivision (a); (2) attempted lewd act on a minor under 14 year s of age, in violation of sections 664 and 288, subdivision (a); (3) criminal threats, in violation of section 422, with a section 12022, subdivision (b)(1) enhancement; (4) assa ult with a dead ly weapon, in violation of section 245, subdivision (a)(1); and (5) lewd act upon a minor under 14 years of age, in violation of section 288, subdivision (a), with the allegation that the offense was
committed under circumstances enumerated in section 667.61, subdivision (a), which provides for a 25-year-to-life penalty. It also was alleged that Leal had been convicted of a prior offense that constituted a serious or viol ent felony that qualified as a strike under sections 667 and 1170.12, a nd had served a prior prison term with section 667.5, subdivision (b) being applicable. Leal pled not guilty to all charges and denied the allegations. On May 1, 2013, a felony advisement of rights, waiver, and plea form was filed. The plea form indicated that an agreement had been reached whereby Leal would plead

1 All further statutory references are to the Penal Code unless otherwise noted.3. to (1) a violation of section 460, subdivision (a), first degree burglary, (2) a violation of section 647.6, annoying or molesting a child under 18 years of age, and (3) a prior conviction, which was a 2011 first degree burgla ry conviction, pursuant to sections 667, subdivisions (a) and (e) and 667.5, subdivision (b). He also stipulated to a 14-year term of imprisonment as part of the plea agreemen t and to register as a sex offender pursuant to section 290. The plea form also contained the standard advisement of constitutional rights and consequences of en tering a guilty or no contest pl ea. Leal initialed each of these provisions and signed the plea form. The transcript of the May 1, 2013, plea hearing discloses that the trial court reviewed the plea agreement w ith Leal, including the misd emeanor count of violating section 647.6, which was added as a part of the plea, and verified that Leal understood the terms of the plea agreement. The tria l court went through the consequences of entering a plea, including the cons equence of pleading to a prio r strike offense. The trial court carefully explained to Leal that in th e event he should be convicted of any serious felony offense at a future po int in time, he would face a sentence of 25 years to life
because he would have two prior strikes—the prior he was admitting and the current
offense. Leal indicated he understood. The trial court explained to Leal that he would have to register as a sex offender pursuant to section 290 and informed him of other consequences of his plea. The trial court obtained an affirmative response from Le al each time he was asked if he understood the consequences of his plea agreement. Th e trial court also discussed the constitutional rights that Leal was waiving and after each right the trial court asked Leal if he
understood and if he wished to waive the right; Leal responded affirmatively. Leal was asked by the trial court if he ha d had an adequate opportunity to discuss the plea agreement with counsel; Leal responde d, “Yes.” Leal was asked other times if he had discussed with counsel the consequences of entering a plea a nd waiving his rights;4. Leal stated he had. The par ties stipulated that the police re ports provided a factual basis for the plea. After thoroughly discussing the consequences and waiver of rights with Leal, the trial court accepted a plea and admissions on the enhancements in accordance with the plea agreement. The trial court made a fi nding of guilt and a finding that there was a knowing, intelligent, and volu ntary waiver of rights. In accordance with the plea agreement, the People then moved to dismiss the remaining counts and enhancements and the motion was granted. On June 20, 2013, the trial court held a confidential hearing at which Leal sought to withdraw his plea. Leal asserted that counsel had failed to advise him that a third felony conviction at a future point in time would lead to a “25 to life sentence ... under
the three strikes law.” Leal al so asserted that based upon hi s research in the jail library, the plea called for dual use of enhancements and rendered the plea agreement “unlawful.” The trial court asked what potential senten ce Leal would have faced if he had not entered into the plea agreement. The People responded that the potential sentence was in excess of 50 years to life. Leal acknowledg ed that counsel had told him “something
about 50 to life” if he were to lose at trial. The trial court found there was no good ca use for withdrawal of the plea; the plea was entered into knowingly and intelligently; and Leal had stipul ated to a 14-year term of imprisonment in the plea agreement. Also on June 20, 2013, the trial court imposed sentence in accordance with the plea agreement. The midterm of eight year s was imposed for the count 1 conviction for first degree burglary. The count 1 term was e nhanced by five years for the section 667, subdivision (a) enhancement and one year for the section 667.5, subdivision (b) enhancement, both to run consecutively to the eight-year term on the substantive offense. For the count 6 misdemeanor offense, the trial c ourt imposed a term of 180 days in jail, to be served concurrently with the sentence imposed on count 1. The trial court also5. imposed the section 290 registration requirement in connection with th e count 6 offense. Fines, fees, and restitution as set forth in the probation report were imposed. A total fixed term of 14 years was imposed, with total credits of 609 days granted. On June 20, 2013, Leal filed a notice of appeal in which he ch allenged the validity of the plea and the legality of the sentence . He sought, and apparently obtained, a certificate of probable cause in order to cha llenge the plea bargain on the basis “the plea bargain and subsequent sentence were illegal b ecause of the dual use of the [Penal Code] 667(a) and [Penal Code] 667.5(b) priors.”
APPELLATE COURT REVIEW
Leal submitted a letter to this cour t on September 11, 2013, “[a]sking for assistance” with the ap peal. Appointed appellate counsel filed a Wende brief on December 20, 2013. Leal’s request for a certificate of probabl e cause stated use of the prior conviction to impose both a section 667, subdivision (a) and a section 667.5, subdivision (b) enhancement was impermissible dual use an d invalidated the plea agreement. Leal pled to a specified se ntence of 14 years, which is what was imposed. “The punishment to which defendant agreed is well within the maximum that could have been imposed under the charges and enhancemen ts which were dism issed solely in consideration of defendant’s plea.” ( People v. Otterstein (1987) 189 Cal.App.3d 1548, 1552.) Where a defendant has pled in exch ange for a specified sentence, there is no error, even if the trial court acted in excess of its jurisdiction to reach that figure. ( People
v. Hester (2000) 22 Cal.4th 290, 295.) After independent review of the record, we conclude there are no meritorious legal or factual issues. There is a clerical error, however, requiring correction. The abstract of judgment fails to reflect the plea to the section 647.6 misdemeanor offense and the term imposed for that offense. We will direct the preparation of a co rrected abstract of judgment.6. DISPOSITION The judgment is affirmed. The trial c ourt is directed to prepare a corrected abstract of judgment that includes the plea to the section 647.6 misdemeanor offense, count 6, and the term imposed fo r that offense, and to dissemi nate a copy of the corrected abstract to the appr opriate agencies.