Filed 2/5/15 P. v. Nolen 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C076588

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F04359)

         v.

JIMMY GARFIELD NOLEN,

                   Defendant and Appellant.




         This appeal is about sentencing. Defendant Jimmy Garfield Nolen contends he
should be able to challenge on appeal an unauthorized sentence for a weapon use
enhancement that was part of a negotiated plea. Relying on California Supreme Court
precedent, we hold defendant is estopped from raising this contention because he
received the eight-year state prison sentence for which he bargained. We therefore affirm
the judgment, but we do order the trial court to amend the abstract of judgment (on
another matter) to conform to the sentence imposed.



                                                             1
                   FACTUAL AND PROCEDURAL BACKGROUND
       Defendant pled no contest to making a criminal threat and inflicting corporal
injury on a cohabitant and admitted a weapon use enhancement, a great bodily injury
enhancement, and a prior prison term enhancement.
       Before defendant pled no contest and admitted the enhancements, the court stated
the following: “The potential sentence . . . is 12 years, 4 months . . . .” “Instead of the
maximum, you’re going to be sentenced to eight years in prison, as the attorneys have
outlined.” Defendant then said “Yes,” when the court asked if he understood the range of
sentence.
       The attorneys had outlined the following: the upper term of four years for
inflicting corporal injury on a cohabitant, plus the lower term of three years for
personally inflicting great bodily injury, plus one year for the prior prison term. As to the
weapon use enhancement, the court and the prosecutor had the following exchange:
       “[THE COURT]: I guess I can CC the weapon [use enhancement].
       “[THE PROSECUTOR]: Yeah, that’s fine as well. You could do that.
       “THE COURT: I actually never CC’d one enhancement with another. Maybe I’ll
also voice it will be a 654. It’s not really a 654 either. [¶] I’m not sure that he doesn’t
just get the greater of the two. I’ll figure something out.”
       Defendant responded “[y]es” when asked if he understood what the court “said
about the range of sentences and about the sentence you’re going to receive.” Defendant
also responded, “[y]es” when the court asked if he “waive[d] referral to the probation
department so that we can sentence you today?”
       The court then orally pronounced the following sentence: the upper term of four
years for inflicting corporal injury on a cohabitant, plus the lower term of three years for
personally inflicting great bodily injury, plus one year for the prior prison term. The
court also imposed a concurrent two years for making a criminal threat, and a concurrent



                                              2
one year for the weapon use enhancement. The “aggregate term in state prison remains
eight years.”
         Defendant contends on appeal that: (1) the concurrent term for the weapon use
enhancement was unauthorized because the law requires a consecutive term, so this court
should either strike the enhancement or remand for a restructuring of the sentence; and
(2) the abstract of judgment must be corrected to show that the one-year enhancement for
the prior prison term was imposed pursuant to Penal Code1 section 667.5 and not section
273.5.
                                        DISCUSSION
                                               I
     Defendant Is Estopped From Challenging On Appeal His Negotiated Sentence
         The weapon use enhancement at issue here is found in section 12022,
subdivision (b), which provides in pertinent part as follows: “A person who personally
uses a deadly or dangerous weapon in the commission of a felony or attempted felony
shall be punished by an additional and consecutive term of imprisonment in the state
prison for one year, unless use of a deadly or dangerous weapon is an element of that
offense.” Defendant and the People both agree that the concurrent sentence the trial court
here imposed for this enhancement was an unauthorized sentence because the law
requires a consecutive sentence.
         A defendant who fails to object at trial to an unauthorized sentence generally does
not forfeit the ability to challenge that sentence on appeal. However, one who negotiates
a plea in exchange for a specified sentence does. “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




1        Further section references are to the Penal Code.

                                              3
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.] While failure
to object is not an implicit waiver of section 654 rights, acceptance of the plea bargain
here was. ‘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.)
       Defendant’s contention that he should be able to challenge as unauthorized the
concurrent sentence he received for the weapon use enhancement is governed by the
rationale of Hester. In Hester, the trial court did not have to structure as it did the portion
of the sentence that was unauthorized under section 654 to achieve the stipulated term of
imprisonment. (People v. Hester, supra, 22 Cal.4th at pp. 293-294.) Nevertheless, the
California Supreme Court held that the defendant was estopped from challenging the
unauthorized sentence under section 654 even though that was not an agreed-to part of
his sentence. (Hester, at pp. 295-296.) The California Supreme Court explained that by
agreeing to a “ ‘specified prison term,’ ” “ ‘a defendant who is sentenced to that term or
a shorter one abandons any claim that a component of the sentence violates section 654’s
prohibition of double punishment.’ ” (Hester, at p. 296.) We see no principled basis to
distinguish an unauthorized sentence under section 654 from an unauthorized sentence
under section 12022 with regard to the estoppel principle announced in Hester.
       Here, as in Hester, defendant gained the benefit of a lesser sentence (eight years)
when, absent the negotiated plea, he faced a much longer possible sentence (12 years and
four months). When asked if he understood what the court “said about the range of

                                               4
sentences and about the sentence you’re going to receive,” defendant responded, “[y]es.”
Accordingly, his claim of an unauthorized sentence is governed by the rationale of
Hester, and he is estopped from raising this issue on appeal.
                                             II
                 The Trial Court Must Correct The Abstract Of Judgment
       Defendant admitted and the trial court imposed a one-year prior prison
enhancement pursuant to section 667.5. However, the abstract of judgment in box 3
shows that the prior prison term was imposed pursuant to “273.5(e)(1).” Defendant
correctly contends the abstract of judgment must be corrected to reflect that this
enhancement was imposed pursuant to section 667.5.
                                      DISPOSITION
       The judgment is affirmed. The trial court is directed to prepare a corrected
abstract of judgment reflecting that the one-year enhancement in box 3 was imposed
pursuant to section 667.5 instead of “273.5(e)(1).” The trial court is further directed to
forward a certified copy of the corrected abstract of judgment to the Department of
Corrections and Rehabilitation.



                                                        ROBIE                 , Acting P. J.



We concur:



      MURRAY                , J.



      HOCH                  , J.



                                             5
