People v. Tapia CA5

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)…