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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F067518
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF143613A)
                   v.

MICHAEL DANIEL LEAL,                                                                     OPINION
         Defendant and Appellant.



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




*        Before Cornell, Acting P.J., Kane, J. and Poochigian, J.
                                      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 month 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 PROCEDURAL 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 years 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) assault with a deadly 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 violent felony that qualified as a strike under
sections 667 and 1170.12, and 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
       1All    further statutory references are to the Penal Code unless otherwise noted.



                                               2.
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 burglary 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 agreement 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 entering a guilty or no contest plea. 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 with Leal, including the misdemeanor 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 trial court went through the consequences of
entering a plea, including the consequence of pleading to a prior strike offense. The trial
court carefully explained to Leal that in the event he should be convicted of any serious
felony offense at a future point 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 Leal each time he was asked if he understood
the consequences of his plea agreement. The 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 had had an adequate opportunity to discuss
the plea agreement with counsel; Leal responded, “Yes.” Leal was asked other times if
he had discussed with counsel the consequences of entering a plea and waiving his rights;



                                              3.
Leal stated he had. The parties stipulated that the police reports 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 finding of guilt and a finding that there was a
knowing, intelligent, and voluntary 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 also asserted that based upon his 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 sentence 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 acknowledged 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 cause for withdrawal of the plea; the plea
was entered into knowingly and intelligently; and Leal had stipulated 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 years was imposed for the count 1 conviction for
first degree burglary. The count 1 term was enhanced 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 court imposed a term of 180 days in jail, to
be served concurrently with the sentence imposed on count 1. The trial court also

                                                 4.
imposed the section 290 registration requirement in connection with the 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 challenged the validity
of the plea and the legality of the sentence. He sought, and apparently obtained, a
certificate of probable cause in order to challenge the plea bargain on the basis “the plea
bargain and subsequent sentence were illegal because 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 court on September 11, 2013, “[a]sking for
assistance” with the appeal. Appointed appellate counsel filed a Wende brief on
December 20, 2013.
       Leal’s request for a certificate of probable 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 and invalidated the plea agreement.
       Leal pled to a specified sentence 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 enhancements which were dismissed solely in
consideration of defendant’s plea.” (People v. Otterstein (1987) 189 Cal.App.3d 1548,
1552.) Where a defendant has pled in exchange 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 corrected abstract of
judgment.

                                               5.
                                        DISPOSITION
       The judgment is affirmed. The trial court 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 for that offense, and to disseminate a copy of the corrected
abstract to the appropriate agencies.




                                            6.
