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People v. Philpot4/24/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Stanford L. Philpot appeals from the judgment entered upon his negotiated plea of no contest to driving under the influence causing injury (Veh. Code, § 23153, subd. (a)), evading an officer causing death (Veh. Code, § 2800.3), and voluntary manslaughter (Pen. Code, § 192, subd. (a)), a lesser included offense of the charged offense of murder. He was sentenced to 12 years 4 months in prison, comprised of the upper term of 11 years for manslaughter and a consecutive sentence for evading an officer, with the sentence for driving under the influence stayed pursuant to section 654.
Appellant contends that he was denied the effective assistance of counsel at his sentencing hearing when counsel failed to argue for imposition of the middle term for manslaughter and failed to object to the trial court's imposition of the upper term without a statement of reasons.
Respondent contends that appellant's claim should be dismissed because he failed to obtain a certificate of probable cause.
We conclude that the appeal must be dismissed.
FACTS AND PROCEDURAL BACKGROUND
The record discloses that on April 18, 2001, appellant was driving a vehicle with Erika Ochoa in the passenger seat. A Los Angeles police officer driving a marked patrol car attempted to pull appellant over because a check of the license plate of appellant's vehicle revealed that the car had been reported stolen. Appellant evaded the officer, driving at high speeds and running red lights. While driving at an excessive speed, he crashed into a building. Ochoa died from the injuries she sustained in the crash. Appellant displayed signs of being under the influence of cannabis at the time. He acknowledged that earlier in the day he had smoked two "blunts" and consumed a beer.
Appellant was charged by information with murder, gross vehicular manslaughter, driving under the influence causing injury, evading an officer causing death, and the unlawful driving or taking of a vehicle with a prior similar conviction. The unlawful driving count was set aside pursuant to appellant's section 995 motion.
The prosecutor first offered a deal in which the sentence would be 14 years 4 months, then offered 13 years 4 months. When appellant indicated he would be willing to plead in return for a sentence of 12 years 4 months, the prosecutor obtained permission from her supervisor to make that offer. Defense counsel stated, "He will accept that. The maximum here is 12.4 years in prison. He will enter a plea of no contest to voluntary manslaughter, evading causing injury or death and D.U.I. causing injury or death." The prosecutor advised appellant of the consequences of his plea and asked, "Do you understand the maximum time you could be sentence to would be 12 years and four months in state prison based upon your plea to those charges?" Appellant replied, "Yes." Appellant waived his constitutional rights and entered a plea of no contest to voluntary manslaughter, driving under the influence , and evading an officer. On motion of the prosecutor, the trial court dismissed the gross vehicular manslaughter count.
The trial court sentenced appellant to the upper term of 11 years for manslaughter with a consecutive term of one year four months for evading an officer, and stayed the two-year midterm for driving under the infl
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