People v. Tapia CA5

California Court of Appeal Apr 3, 2015 No. F068326Unpublished

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Holding. The court held that a defendant who pleads no contest to first degree burglary cannot challenge the sufficiency of the evidence on appeal, and that the laundry room of an apartment complex constitutes an inhabited dwelling under the burglary statute.

Issues

Whether a defendant may challenge the sufficiency of the evidence for a first degree burglary conviction after entering a plea of no contest.
Whether a laundry room in an apartment complex qualifies as an inhabited dwelling for purposes of first degree burglary.

Disposition. affirmed

Quotations verified verbatim against the opinion

“When a defendant changes his or her plea to guilty or no contest, the plea is deemed to constitute a judicial admission of every element of the offense charged.”

“The public policy of protecting residents from burglars while doing their laundry is no different in this case than it was in Woods.”

Filed 4/3/15 P. v. Tapia 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F068326 Plaintiff and Respondent, (Super. Ct. No. CRM029693) v.

GERARDO TAPIA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Merced County. Mark V. Bacciarini, Judge. Holly Jackson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Chung Mi (Alexa) Choi, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Cornell, Acting P.J., Gomes, J. and Poochigian, J.

INTRODUCTION Appellant Gerardo Tapia pled no contest to one count of residential burglary. On appeal, he contends that his crime did not constitute a conviction for first degree burglary but instead a conviction for second degree burglary. We disagree and affirm the judgment. PROCEEDINGS Appellant was charged in a criminal complaint filed on October 1, 2013, with three separate felony counts of first degree burglary (Pen. Code, § 459, counts 1, 2, & 3) (unless otherwise designated, all statutory references are to the Penal Code), felony possession of a concealed dirk or dagger (§ 21310, count 4), and misdemeanor possession of narcotics paraphernalia (Health & Saf. Code, § 11364.1, subd. (a) [now § 11364, subd. (a)], count 5).1 On October 10 appellant entered into a plea agreement in which he would admit count 1 and receive five years’ probation, with a suspended sentence of six years. Appellant executed a felony advisement rights, waiver and plea form (plea form) acknowledging (1) he discussed the case with his attorney; (2) attorney explained the elements of the charged offenses, including any enhancements, (3) appellant discussed the facts known to him about the case; and (4) appellant discussed his constitutional and statutory rights, as well as any defenses, with counsel. In the plea form, appellant acknowledged and waived his rights pursuant to Boykin/Tahl.2 Appellant initialed his acknowledgment that “There is a factual basis for my plea and the court may consider any report or transcript in the file in finding there is a

People v. Tapia CA5

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