People v. Daniel CA2/2

Filed 12/6/22 P. v. Daniel CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B318585

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA263581) v.

KENNETH MARTIN DANIEL,

Defendant and Appellant.

THE COURT: In a second amended information filed September 21, 2005, defendant and appellant Kenneth Martin Daniel was charged with attempted murder with the personal use of a weapon (Pen. 1 Code, §§ 664/187, subd. (a), 12022, subd. (b)(1)) (count 1), assault with a deadly weapon, with the infliction of great bodily injury (§§ 245, subd. (a)(1), 12022.7, subd. (e)) (count 2), and murder

1 All further statutory references are to the Penal Code unless otherwise indicated.

(§ 187, subd. (a)) (count 3). The information further alleged several prior convictions. On June 5, 2006, defendant was found guilty of counts 1 and 2. The strike/serious felony priors as well as the prison priors were also found true. He was sentenced to prison for a total of 40 years to life. On February 3, 2022, defendant filed a motion for relief 2 pursuant to section 1473.6 and Boykin v. Alabama (1969) 395 U.S. 238. Specifically, he sought to vacate his priors on the grounds that his pleas to those cases were not knowing and intelligent. Because his pleas were induced by government misconduct by both the prosecution and the defense, this was newly discovered evidence pursuant to section 1473.6. He asked the trial court to appoint him counsel, vacate his prior plea bargains, and order any other applicable relief. On February 7, 2022, the trial court called the matter without the presence of defendant, a prosecutor, or defense counsel. The trial court denied defendant’s motion on the grounds that: (1) defendant was not out of custody; (2) defendant