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People v. Galdamez6/19/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Appellant pleaded no contest to gross vehicular manslaughter (Pen. Code, § 191.5, subd. (a)), driving under the influence of alcohol and causing injury (Veh. Code, § 23153, subd. (a)), driving with a blood alcohol level of .08 percent and causing injury (Veh. Code, § 23153, subd. (b)), child endangerment (Pen. Code, § 273a, subd. (a)), and driving with a license suspended for addiction to alcohol (Veh. Code, § 14601, subd. (a)). With respect to certain counts, appellant admitted that he personally inflicted great bodily injury on another within the meaning of Penal Code sections 667 and 1192.7, that he was presumptively ineligible for probation within the meaning of Penal Code section 1203, subdivision (e)(3), and that he proximately caused injury to four different people (Veh. Code, § 23558). In return for this negotiated plea, one count of driving with a suspended license (Veh. Code § 14601.1, subd. (a)) was dismissed. The trial court sentenced appellant to nine years and four months in state prison. Appellant raises various contentions related to the applicability of Penal Code section 1203, subdivision (e)(3) to his case. We conclude appellant's arguments are not cognizable on appeal because he failed to obtain a certificate of probable cause.
Factual Background and Proceedings Below
On July 29, 2001, appellant was driving on Summit Road approaching Highway 17. He failed to stop at a stop sign, entered the highway and hit a Jeep. The Jeep crossed the center divider and struck another car. One passenger in the Jeep was killed and two others suffered injuries. Appellant's passengers included two adults and a four-year old child. Appellant's blood alcohol content was .09 per cent in a blood test administered approximately three hours after the accident.
On March 11, 2002, appellant appeared with counsel. The court stated, "I understand there has been a negotiated plea with respect to this matter." The prosecutor explained that she "will be dismissing Count 6. Defendant will be pleading to the remaining counts with no conditions." Defense counsel confirmed this agreement, as did appellant. During voir dire on this change of plea, the court asked appellant, "Do you understand that I must send you to state prison unless I find some unusual circumstances that would justify granting probation?" Appellant answered, "Yes." Later in the course of the voir dire the court asked, "And it's alleged with respect to that Count 2 that you personally inflicted great bodily injury on Matthew Klotzbach within the meaning of Penal Code Section 12022.7(a) and 1203(e)(3). To those - to that allegation - I'm sorry - is that allegation true?" Appellant answered, "Yes." The court obtained the same admission to this allegation as to another count as well.
In his report, the probation officer wrote, "Pursuant to section 1203(e)(3) of the Penal Code, the defendant is eligible for probation if unusual circumstances are found. This officer did not find any unusual circumstances in this case. In review of the criteria affecting probation, this officer found several unfavorable factors warranting a prison commitment . . . ."
At the time of sentencing, the trial court said, "Now, one of the first things the Court is required by law to do is to consider probation. In this case the defendant is not eligible for probation unless the
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