People v. Tate CA6

Filed 8/12/22 P. v. Tate CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE H049768 & H049641 (Santa Clara County Plaintiff and Respondent, Superior Court Nos. 89625 & 159331)

v.

LIONEL TATE, SR.

Defendant and Appellant.

THE COURT 1 Defendant Lionel Tate, Sr., appeals from two orders denying motions he filed in the trial court to vacate convictions in two cases pursuant to Penal Code section 1473.7.2 For the reasons set forth below, we dismiss the appeals. I. PROCEDURAL BACKGROUND3 A. Case No. H049768 (Superior Court Case No. 89625) In 1987, Tate pleaded no contest to rape (§ 261, subd. (2); count 1) and penetration by a foreign object (§ 289, subd. (a); count 3) with the agreement that he would be sentenced to five years in state prison, and with the condition that he would waive all

1 Before Greenwood, P. J., Grover, J. and Wilson, J. 2 Further undesignated statutory references are to the Penal Code. 3 The facts of the offenses are not relevant to the analysis and disposition of these

appeals and therefore we have omitted them.

appellate rights. At sentencing, the court imposed a term of three years on count 1and a consecutive term of two years on count 3, consistent with the plea agreement. In 2021, Tate filed a motion to vacate his conviction under section 1473.7, subdivision (a)(1) on the basis that at that time he entered the plea, the court did not advise him that the convictions could be used to enhance future sentences. He argued further that had the trial court advised him that sentencing statutes enacted after the time of the entry of his plea could be used to enhance future sentences he would not have entered into the plea bargain. The trial court denied the petition. The court determined that Tate’s motion was invalid because he filed it under subdivision (a)(1) of section 1473.7, which allows a court to vacate a conviction based on the defendant’s failure to understand the immigration consequences of his guilty plea, but Tate did not make any claim related to his immigration status in his motion. The court additionally ruled that Tate’s claims were meritless because under Doe v. Harris (2013) 57 Cal.4th 64, 66 (Doe), Tate was subject to any change in law that was applicable to him regardless of the plea agreement. B. Case No. H049641 (Superior Court Case No. 159331) In 1993, Tate was convicted after a jury trial of penetration by a foreign object (§ 289, subd. (a), count 2) and two counts of rape (§ 261, subd. (a)(2); counts 3 and 4). Tate was sentenced to a term of 55 years. This court affirmed the conviction but struck certain enhancements and fines from the judgment in People v. Tate (Aug. 11, 1995, H011819 [nonpub. opn.]). On remand, the trial court re-sentenced Tate to a term of 45 years. In 2021, Tate filed a motion to vacate his conviction pursuant to section 1473.7, subdivision (a)(2), arguing that he had new evidence of his factual innocence. Tate stated in the motion that his attorney, Yolanda Trevino, had declared a conflict of interest after representing him at the preliminary hearing because her office had previously represented the victim. Tate contended that Trevino possessed evidence of his innocence, but that he 2