People v. Tate CA5

Filed 9/22/16 P. v. Tate 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F072164 Plaintiff and Respondent, (Kings Super. Ct. No. 8604) v.

LEROY TATE, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge. Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

INTRODUCTION In 1987, defendant/appellant Leroy Tate pled guilty to one count of first degree burglary, a violation of Penal Code1 section 459. In 2015, defendant filed a petition

* Before Poochigian, Acting P.J., Peña, J. and Smith, J. 1 References to code sections are to the Penal Code unless otherwise specified.

pursuant to section 1170.18, seeking to reclassify the conviction as a misdemeanor. The trial court denied the petition on the grounds a conviction for violating section 459 is not eligible for reclassification under section 1170.18. Defendant appealed. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm. FACTUAL AND PROCEDURAL SUMMARY On May 13, 1987, defendant entered a plea of guilty to one count of first degree burglary, a violation of section 459. The trial court asked defense counsel if he had “gone over the case carefully” with defendant, to which defense counsel responded affirmatively. When the trial court asked about the factual basis for the plea, defense counsel stated, “[I]t’s my understanding that [defendant] did not actually enter; he assisted other people that did.” The trial court asked defendant directly, “[D]id you assist other people who were burglarizing that house?” Defendant responded, “Yes, I did.” The trial court also asked defense counsel if he concurred with the plea, and defense counsel stated, “Yes, your Honor.” The trial court found a factual basis for the plea; that defendant had made a knowing, intelligent, and voluntary waiver of his rights and accepted the guilty plea. Defendant was sentenced on June 10, 1987, to the mid-term of four years for this offense. On April 8, 2015, defendant filed a petition for reduction of the offense to a misdemeanor. The petition specifically stated that defendant is seeking reduction of a “P.C. 459A first degree burglary” conviction for which he was sentenced to a term of four years in 1987. Defendant had completed his sentence for the offense by the time the petition was filed. A certified copy of the abstract of judgment for this conviction was apparently attached to the petition. No other documents were attached to or filed in support of the petition.