People v. Tate CA5

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. 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,…