P. v. Whitsett CA2/7

Filed 7/22/13 P. v. Whitsett CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B245639

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA121002) v.

ELIJAH MARCUS WHITSETT,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, John J. Cheroske, Judge. Affirmed.

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

___________________________________

On October 20, 2011, William George Whitsett and another man arrived at Marques Jackson’s apartment to drive him to a gathering at the beach. The three men had just reached the car, when Tristan Elliot Williams drove up and stopped. With him was appellant Elijah Marcus Whitsett.1 Appellant emerged from the car, produced a gun and started firing it at Jackson, hitting him in the head and the back. Jackson fled to his apartment and was later transported to the hospital. Appellant was charged in a two-count information with attempted willful, deliberate and premeditated murder (Pen. Code, §§ 187, subd. (a), 664)2 and assault with a firearm (§ 245, subd. (a)(2)). As to both counts, the information alleged appellant had personally used a firearm (§§ 12022.53, subd. (b), 12022.5, subds. (a) & (d)) and a principal was armed with a firearm (§ 12022, subd. (a)(1)). In addition, it was specially alleged appellant had suffered two prior serious or violent felony convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had previously served one separate prison term for a felony (§ 667.5, subd. (b)).3 Appearing with appointed counsel, appellant entered a negotiated plea of no contest to assault with a firearm and admitted one firearm use and one prior strike allegation. The plea agreement provided appellant would waive his right to presentence custody credit, in return for a state prison sentence of 18 years and dismissal of the attempted murder charge and the remaining special allegations. The record of the plea hearing established appellant was advised of and waived his constitutional rights and was advised of and acknowledged he understood the consequences of his plea. Counsel stipulated to a factual basis for the plea. The trial court found appellant had knowingly, voluntarily and intelligently waived his constitutional rights and entered his no contest plea. In accordance with the plea