People v. Leal CA5

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.