Filed 6/14/16 P. v. Noor CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----




THE PEOPLE,                                                                                  C079587

                   Plaintiff and Respondent,                                     (Super. Ct. Nos. 62123396,
                                                                                        62124257D)
         v.

MOHAMMAD USOF NOOR,

                   Defendant and Appellant.




         Defendant Mohammad Usof Noor was sentenced to nine years in state prison
pursuant to a plea agreement involving two separate cases. On appeal, he challenges the
trial court’s order remanding him to state prison rather than county jail pursuant to Penal
Code1 section 1170, subdivision (h). We will dismiss the appeal.




1        Undesignated statutory references are to the Penal Code.

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                                PROCEDURAL HISTORY
       A detailed recitation of the facts is unnecessary to the resolution of this appeal.
                                     Case No. 62123396
       On December 18, 2013, defendant was charged with felony possession for sale of
heroin, a controlled substance and felony transportation for sale of heroin, a controlled
substance.
                                     Case No. 62124257
       On December 19, 2013, defendant was charged with felony conspiracy to dissuade
a witness, felony conspiracy to dissuade a witness by use of force or threat of force, and
felony street terrorism. The information alleged defendant committed counts one and
two for the benefit of, at the direction of, or in association with a criminal street gang, and
was released on bail during commission of all three counts.
       On April 13, 2015, defendant pled no contest in case No. 62124257 to a newly
added charge of inducing false testimony and admitted the gang and on-bail
enhancements, and pled no contest in case No. 62123396 to possession for sale of heroin
(count one), in exchange for dismissal of all remaining charges and allegations in both
cases and a stipulated aggregate sentence of nine years in state prison. Defendant
stipulated to the following factual basis for his plea:
       On or about July 11, 2013, and August 14, 2013, in case No. 62124257, defendant
“used fraud against” the victim, D. S., intending to cause D. S. to give false testimony or
withhold testimony in a judicial hearing. Defendant committed the crimes for the benefit
of or in association with the Norteño criminal street gang and with the intent to assist,
further, or promote criminal conduct by the Norteño criminal street gang. At the time of
the commission of the crimes, defendant was either released on bail or his own
recognizance in case No. 62123396 in which, on July 11, 2013, he possessed for sale a
usable amount of heroin, a controlled substance.



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       The trial court sentenced defendant to nine years in state prison according to the
plea. The sentence was calculated as follows: Three years (the middle term) for inducing
false testimony, plus a consecutive term of three years (the middle term) for the gang
enhancement, a consecutive two-year term for the on-bail enhancement, and a
consecutive one-year term (one-third the middle term) for possession for sale of heroin.
       Defendant filed a timely notice of appeal. He did not obtain a certificate of
probable cause.
                                       DISCUSSION
       Defendant contends the trial court erred in remanding him to state prison because
his underlying offenses and enhancements require that his sentence be served in county
jail pursuant to section 1170, subdivision (h).2 Therefore, the state prison sentence was
“ ‘unauthorized.’ ” (People v. Scott (1994) 9 Cal.4th 331, 354 [“[A] sentence is generally
‘unauthorized’ where it could not lawfully be imposed under any circumstances in the
particular case”].)
       “ ’[A] challenge to a negotiated sentence imposed as part of a plea bargain is
properly viewed as a challenge to the validity of the plea itself’ and thus requires a
certificate of probable cause.” (People v. Shelton (2006) 37 Cal.4th 759, 766; see People
v. Panizzon (1996) 13 Cal.4th 68, 76, 78-79; § 1237.5.) Defendant’s claim requires a
certificate of probable cause. He did not obtain one. Thus, his contention challenging a
sentence that was part of the plea agreement is not cognizable on appeal.




2      Subdivision (h) of section 1170 is part of the Criminal Justice Realignment Act of
2011 (Realignment Act) under which “numerous offenses previously punishable by
specified terms in state prison are now punishable by serving that same term in local
custody at the county jail.” (People v. Vega (2014) 222 Cal.App.4th 1374, 1379.)

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       Even if the issue were cognizable on appeal, defendant would be estopped from
challenging a sentence to which he agreed. “The rule that defendants may challenge an
unauthorized sentence on appeal even if they failed to object below is itself subject to an
exception: Where the defendants have pleaded guilty in return for a specified sentence,
appellate courts will not find error even though the trial court acted in excess of
jurisdiction in reaching that figure, so long as the trial court did not lack fundamental
jurisdiction. The rationale behind this policy is that defendants who have received the
benefit of their bargain should not be allowed to trifle with the courts by attempting to
better the bargain through the appellate process. [Citations.] . . . ‘When a defendant
maintains that the trial court’s sentence violates rules which would have required the
imposition of a more lenient sentence, yet the defendant avoided a potentially harsher
sentence by entering into the plea bargain, it may be implied that the defendant waived
any rights under such rules by choosing to accept the plea bargain.’ ” (People v. Hester
(2000) 22 Cal.4th 290, 295.)
       In Hester, the defendant pled no contest in exchange for an agreed-upon term of
four years. At sentencing, the court imposed the four-year term but also imposed
concurrent terms for other crimes. (People v. Hester, supra, 22 Cal.4th at p. 293.) On
appeal, the defendant asserted that imposition of the concurrent sentences violated
section 654. But the court concluded that the assertion was barred by former rule 412(b)
of the California Rules of Court. It stated: “Where the defendants have pleaded guilty in
return for a specified sentence, appellate courts will not find error even though the trial
court acted in excess of jurisdiction in reaching that figure, so long as the trial court did
not lack fundamental jurisdiction. The rationale behind this policy is that defendants who
have received the benefit of their bargain should not be allowed to trifle with the courts
by attempting to better the bargain through the appellate process.” (Hester, at p. 295.)
The court concluded the defendant’s acceptance and agreement to the specified sentence
precluded him from challenging the trial court’s erroneous failure to stay execution of the

                                               4
sentence under section 654, even though the court thereby acted in excess of its
jurisdiction and imposed an unauthorized sentence. (Hester, at pp. 294-295.)
       We conclude that even if defendant’s challenge to his sentence were cognizable on
appeal, the rationale in Hester would apply here. Defendant accepted and agreed to a
nine-year state prison sentence contrary to the county jail mandate of section 1170,
subdivision (h). He would therefore be estopped from challenging any part of his
sentence as unauthorized, assuming his appeal were properly before us.
       Defendant acknowledges Hester but argues its holding is not controlling in light of
the intervening legislative enactment in 2011 of the Realignment Act, which prohibits a
defendant from bargaining away the mandate of county jail sentencing. He cites no
authority to support the claim. In any event, the Realignment Act had long been in effect
by the time defendant entered into his plea agreement in April 2015. Defendant gained
the benefit of a significantly reduced sentence due to his negotiated plea to dismiss
numerous felony charges (e.g., conspiracy to dissuade a witness, conspiracy to dissuade a
witness by use of force or threat of force, street terrorism, and transportation for sale of a
controlled substance), absent which he faced a much longer possible sentence.
Moreover, when asked by the court if understood he would be sentenced “to the
Department of Corrections for this term of nine years,” defendant, who was represented
by counsel, said, “Yes, sir.” When imposing sentence, the court reiterated numerous
times that defendant would be sentenced “to the Department of Corrections and
Rehabilitation,” and remanded defendant to the sheriff “to be delivered to the Department
of Corrections and Rehabilitation for the commencement of sentence.” Accordingly, his
claim of an unauthorized sentence is governed by the rationale of Hester, and he would
be estopped from raising the issue on appeal, even if the appeal were properly before us.
The appeal is not properly before us, however, because defendant failed to obtain a
certificate of probable cause.



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                                  DISPOSITION
       The appeal is dismissed.



                                           /s/
                                           Robie, Acting P. J.



We concur:



/s/
Duarte, J.



/s/
Renner, J.




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