Filed 12/18/15 P. v. Vochatzer 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                                          NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Yolo)
                                                            ----




THE PEOPLE,                                                                            C079271

                   Plaintiff and Respondent,                              (Super. Ct. No. CFR052373)

         v.                                                           ORDER MODIFYING OPINION

CHRISTOPHER JON VOCHATZER II,                                            [CHANGE IN JUDGMENT]

                   Defendant and Appellant.



THE COURT:


         It is ordered that the nonpublished opinion filed herein on December 16, 2015, be
modified as follows:

         The Disposition, which read: “The appeal is dismissed.” is changed to read: “The
order is affirmed.”




                                                             1
    This modification effects a change in the judgment.



BY THE COURT:



        BUTZ                   , Acting P. J.



        MAURO                  , J.



        HOCH                   , J.




                                         2
Filed 12/16/15 P. v. Vochatzer CA3 (unmodified version)
                                          NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Yolo)
                                                            ----




THE PEOPLE,                                                                            C079271

                   Plaintiff and Respondent,                              (Super. Ct. No. CFR052373)

         v.

CHRISTOPHER JON VOCHATZER II,

                   Defendant and Appellant.




         Defendant Christopher Jon Vochatzer II appeals from the order denying his
“motion to correct [a] void sentence” that was imposed in 2006 pursuant to a plea of no
contest in exchange for a negotiated 28-year prison term and dismissal of other charges.
We assume the order is appealable even though it is the trial court’s decision whether or
not to recall a sentence at the request of the California Department of Corrections and
Rehabilitation (CDCR). (Cf. People v. Loper (2015) 60 Cal.4th 1155 [sentence recall for



                                                             1
compassionate release].) Defendant did not obtain a certificate of probable cause. (Pen.
Code, § 1237.5.)1 We shall affirm the order.

                 FACTUAL AND PROCEDURAL BACKGROUND

       In December 2014, the CDCR sent a notification to the trial court regarding its
2006 imposition of sentence in defendant’s case. (We have no record of an appeal from
the original sentence.) The notice suggested the imposition of an enhancement for
personal use of a weapon pursuant to section 12022 on a conviction of assault with a
deadly weapon (§ 245, subd. (a)(1)) was impermissible because this is an element of the
underlying offense. The notice reminded the trial court that if it recalled the sentence
(§ 1170, subd. (d)(1)), it was entitled to reconsider the entirety of the sentence imposed
(People v. Hill (1986) 185 Cal.App.3d 831, 834).

       The trial court convened with the parties (in defendant’s absence) in January 2015.
The court continued the matter to give counsel time to review the matter.

       Defendant then filed the motion to correct his sentence. In addition to the possible
error that CDCR had identified, defendant asserted that he was also entitled to have the
court stay the sentence for his conviction for infliction of great bodily harm (§ 12022.7,
subd. (a)), because his gang enhancement (§ 186.22, subd. (b)(1)) was based on the same
conduct, and People v. Gonzalez (2009) 178 Cal.App.4th 1325 (decided after his
sentencing) had held this is unlawful under section 1170.1, subdivision (g). The
prosecutor opposed any modification of defendant’s sentence because defendant had
entered a plea of no contest to a negotiated sentence and therefore implicitly waived any
challenge to the legality of any component, arguing by analogy to the rule precluding
appellate challenges to the legality of negotiated sentences (e.g., People v. Hester (2000)
22 Cal.4th 290, 295 (Hester)). The trial court denied the motion and declined to recall


1 Undesignated statutory references are to the Penal Code.


                                             2
the sentence. Defendant filed a notice of appeal without seeking a certificate of probable
cause.

                                        DISCUSSION

         On appeal, defendant contests only the trial court’s failure to stay his three-year
sentence for infliction of great bodily injury. We therefore deem him to have abandoned
any challenge to the trial court’s failure to recall the sentence to stay the weapon use
enhancement. (Cf. Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544, fn. 8 [appeal
abandoned for want of argument].)

         Defendant limits his argument to a claim that he is entitled to retroactive effect of
Gonzalez, because there is an absence of any evidence that any term of his plea bargain
precludes the application of favorable future changes in the law. However, he fails to
anticipate the procedural obstacles to our consideration of the merits raised in the
People’s brief, nor has he filed a reply brief in response.

         The People contend the absence of a certificate of probable cause renders
defendant’s appeal inoperative. (People v. Panizzon (1996) 13 Cal.4th 68, 76, 78-79 [a
challenge to a negotiated sentence imposed as part of a plea bargain, regardless of time or
manner, “is properly viewed as a challenge to the validity of the plea itself” and therefore
requires a certificate of probable cause]; cf. People v. Shelton (2006) 37 Cal.4th 759, 763,
769-770 [even with nonnegotiated sentence, an attempt to challenge court’s authority to
impose a sentence contrary to section 654 is a challenge to the plea itself, as it seeks to
redecide the mutual understanding of the parties that this authority exists, and therefore
requires a certificate of probable cause].) However, as People v. Arriaga (2014)
58 Cal.4th 950, 960 recently held, “The Legislature’s express requirement that a probable
cause certificate be obtained before bringing an appeal under section 1237’s subdivision
(a), juxtaposed with its omission of such a requirement in section 1237’s subdivision (b),
indicates the Legislature’s intent not to require a certificate of probable cause for appeals

                                                3
brought under subdivision (b). This makes sense, because an appeal from a postjudgment
order does not generally require preparation of a trial record or the appointment of
counsel, and thus does not implicate the probable cause certificate’s purpose of
preserving scarce judicial resources.” As the present appeal is pursuant to the latter
subdivision, involving an order after judgment affecting defendant’s substantial rights, a
certificate of probable cause is not required. However, defendant still cannot prevail.

       In the first place, defendant does not provide any authority for purporting to
challenge a requested modification of the sentence beyond what CDCR identified. It is
the CDCR’s request that invests the trial court with jurisdiction to recall the sentence and
consider the particular issue posed therein as well as any other component of the sentence
if the court decides to recall the sentence. The trial court having declined to act on
CDCR’s request, defendant cannot raise some other challenge to his sentence on appeal
from the order beyond its decision to leave the personal use enhancement intact and
decline to recall the sentence.

       Moreover, even if the issue were cognizable on appeal, the trial court correctly
relied on Hester, supra, 22 Cal.4th at page 295, which reiterated the principle that where
a defendant has pleaded guilty “in return for a specified sentence, appellate courts will
not find error . . . [because those] who have received the benefit of their bargain should
not be allowed to trifle with the courts by attempting to better [it] through the appellate
process.” This is no less true with respect to a postjudgment challenge in the trial court to
the sentence. Defendant is thus precluded from arguing that any part of his sentence was
unauthorized.




                                              4
                                DISPOSITION

     The appeal is dismissed.




                                              BUTZ   , Acting P. J.



We concur:



     MAURO               , J.



     HOCH                , J.




                                     5
