People v. Nolen CA3

Filed 2/5/15 P. v. Nolen CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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