Opinion
F072638
10-20-2017
THE PEOPLE, Plaintiff and Respondent, v. HAROON PIMENTEL, Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF155467B)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant/defendant Haroon Pimentel pleaded no contest to multiple offenses, including felony mayhem (Pen. Code, § 203), with an enhancement for personal infliction of great bodily injury on a child under the age of five years (§ 12022.7, subd. (d)). The victim was two-year-old, B., who had been living in Pimentel's apartment with her mother, Sarai Alavez, and her older sister, N. Pimentel and his spouse, Kathy Yoval, committed numerous horrific acts of "discipline" and inflicted grievous injuries on B. B.'s mother did not intervene and participated in these acts. Pimentel was sentenced to 20 years in prison pursuant to a negotiated disposition.
All further statutory citations are to the Penal Code unless otherwise indicated.
Pimentel has filed an appeal and contends his sentence was unauthorized because he could not be sentenced for both mayhem and a great bodily injury enhancement, because great bodily injury is an element of mayhem, and the matter should be remanded so he can withdraw from the plea agreement.
We affirm.
FACTS
Pimentel waived a preliminary hearing and entered into a negotiated disposition. He stipulated to the "incident reports" as the factual basis for the plea. We thus quote from and summarize the police reports contained in the probation report for the factual background for this case.
Sarai Alavez was the mother of two girls: B., born in 2011, and N., born in 2008. As of March 2014, Alavez and the two girls lived in the apartment of Haroon Pimentel and Kathy Yoval.
"On Thursday, July 12, 2014, at approximately 4:45 a.m., officers with the Bakersfield Police Department were at Kern Medical Center. They observed a subject, later identified [as] Sarai Alavez, a codefendant, carrying a female juvenile, identified as then two-year-old [B.], as they were being escorted to a trauma room. Officers observed the victim appeared unconscious and she had numerous scratches and cuts on her body as well as bruises covering most of her face. Officers noted the victim's rectum was also dark purple. The attending doctor requested officers photograph the victim's injuries as he believed they were possibl[y] caused by blunt force trauma. Additional officers were then requested to assist in the investigation."
The preliminary medical examination revealed the victim had abdominal bleeding and fluid in her abdomen and a rib fracture. "According to medical records, [B.] suffered from multisystem trauma. ... [B.] was found with a compression fracture of the spine, a fractured rib, traction alopecia, as a result of hair pulling, and 80 centimeters of [B.'s] small intestines had to be removed. The injuries were the result of blunt force trauma."
At the hospital, Alavez said B. had been "playful and behaving normally the day before; however, at approximately 2:00 a.m., the victim began vomiting. Alavez indicated the victim has suffered from constipation and gas since November 2013, and they sought treatment on a few occasions. She also indicated the victim's injuries were a result of a fall that had occurred a few weeks prior. Alavez agreed to accompany officers to the Bakersfield Police Department for further questioning."
When Alavez was interviewed by the police, she reported that she and her two children, B. and N., were renting a room in the home of Haroon Pimental and Kathy Yoval. Alavez initially claimed B. suffered from digestive issues, various illnesses, and behavioral issues that caused the two-year-old child to throw herself on the floor, and pick at her hair and body, which resulted in the child's visible injuries.
In a subsequent interview, Alavez eventually said that Pimentel and Yoval instructed her on how to discipline the two children soon after they moved into their home in March 2014. Alavez said that Pimentel made B. stand, kneel, or sit in a corner without moving or making noise; he made B. and N. run laps in the house while carrying a weighted backpack; and he occasionally made them chew and swallow hot chili peppers.
Alavez said that when B. cried because of her intestinal problems, Pimentel became frustrated and tied B.'s wrists and ankles together for hours, both in the daytime and at night. Pimentel also taped a sock into B.'s mouth to stop her from talking. Alavez admitted she also bound the child's arms and legs after Pimentel taught her how to do it. B. would soil herself while tied up, and Pimentel told Alavez to leave the child in her soiled clothing to teach her a lesson. Pimentel and Yoval told Alavez she was being too easy on B.
Alavez said that when she went to sleep on June 10, 2014, Pimentel had tied up B. and left her in the kitchen. When Pimentel left for work, Alavez untied B. because the child was sick and vomiting. When Pimentel arrived home in the afternoon, he told Alavez that she could feed B. Alavez went to the store to buy food. When she returned, she discovered that N. was in trouble and being disciplined. Pimentel placed two hot chili peppers into N.'s mouth, held N. in a choke hold, and squeezed N.'s throat to prevent N. from swallowing until she had chewed the seeds.
Later that evening, Alavez spanked B. because of another issue. Pimentel told Alavez that was not the way to spank a child. He produced a tree branch and hit B., and the branch broke. Alavez used a cup of water and tried to help B. wash out the blood that had pooled in her mouth. Yoval became angry because B. swallowed the water, grabbed B.'s throat with her hands, and applied so much pressure that B. gasped for air and her eyes rolled back.
Alavez said B. was again tied up that night with a handkerchief, and one of her ankles was latched to a doorknob. B. was laying on her stomach, and Pimentel stepped on B.'s back if she made any noise. Yoval placed tape over the handkerchief to ensure that B. could not break free. Pimentel taped B.'s mouth and nose, and told Alavez there were holes in the tape so she could breathe. However, B. began to vomit and Alavez removed the tape. The adults went to bed that night while B. was still tied up and taped to the doorknob. Later that night, Alavez heard B. screaming, and discovered Pimentel and Yoval were again stepping on B.'s back. Alavez untied B. and believed she needed medical attention.
Alavez told the police that Pimentel hit B. with his hands, a belt, and a tree branch; he strangled B.; he stepped on her back; he pulled B.'s hair; he hogtied B.'s hands and feet, and he carried her "like an animal." Yoval pulled B.'s hair; slapped and hit B.; used metal clothes hangers to hit B.'s legs; and insisted that Pimentel "discipline" B.
Alavez admitted she let Pimentel and Yoval "discipline" B. and N., and she did not stop them or protect B.
Yoval told the police that Alavez imposed strict punishment on B., but she did not explain B.'s multiple injuries except to claim that B. fell down a few weeks earlier.
Pimentel told the police that he tried to teach Alavez how to be a better parent. Pimentel admitted that he hit B. but claimed he never hit B. as hard as Alavez did. Pimentel also admitted he spanked B. and gave her a chili pepper when the child yelled and cursed at them. Pimentel said they tied up B. because she ate without permission, and her excessive eating caused her stomach to be distended.
Pimentel said he would wake up at night, and discover B. was tied up in the garage. Pimentel said he became angry with Alavez and untied B. Pimentel claimed Alavez forced B. to eat the chili peppers, and hit B. with a hairbrush and stick. Pimentel admitted he helped Alavez tie up B.'s hands.
Pimentel said he taught Alavez how to do some but not all of these things, and he never forced Alavez to do anything to B. Pimentel claimed Alavez would lose control and black out while hitting B. Pimentel knew that B. would be bound for an entire day, and said he was always the person who released her. Pimentel admitted he made B. wear a weighted backpack and exercise. He denied stepping on B.'s back and said that Alavez did so.
Alavez, Pimentel, and Yoval were arrested and jointly charged in a complaint with multiple felonies.
PROCEDURAL HISTORY
On September 4, 2014, an 18-count information was filed in the Superior Court of Kern County against codefendants Pimentel, Alavez, and Yoval. Each defendant was charged with committing the same five felony offenses against B. and one felony against N.
As to Pimentel, the offenses were numbered as follows:
Count VII: Attempted murder of B., between June 10 and 12, 2014 (§§ 664/187, subd. (a));
Count VIII: Torture of B., between March 1 and June 12, 2012 (§ 206);
Count IX: Aggravated mayhem of B., between March 1 and June 12, 2014, (§ 205);
Counts X: Felony child abuse of B., between March 1, and June 12, 2014 (§ 273a, subd. (a));
Count XI: False imprisonment of B., between March 1 and June 12, 2014 (§ 236); and
Count XII: Felony child abuse of N., between March 1, and June 12, 2014 (§ 273a, subd. (a)).
Section 206 states: "Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture."
Section 205 states: "A person is guilty of aggravated mayhem when he or she unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being or deprives a human being of a limb, organ, or member of his or her body. For purposes of this section, it is not necessary to prove an intent to kill. Aggravated mayhem is a felony punishable by imprisonment in the state prison for life with the possibility of parole."
Section 273a, subdivision (a) states: "Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years."
As to counts VII through X, it was further alleged that Pimentel personally used a deadly or dangerous weapon on B. (§ 12022, subd. (b)(1)); and personally inflicted great bodily injury on B., a child under the age of five years (§ 12022.7, subd. (d)). As to count XI, false imprisonment, a personal use enhancement was only alleged.
The information alleged the same six offenses and accompanying enhancements as to Alavez (counts I through VI) and Yoval (counts XIII through XVIII).
Severance and Alavez's jury trial
On July 9, 2015, the court granted Pimentel's motion to sever his case from that of Alavez. The court ordered that Alavez's trial would be held first, and then Pimentel and Yanez would be tried together.
On July 22, 2015, Alavez's jury trial began. On August 3, 2015, Alavez was convicted of torture and other felonies.
Pimentel's first plea hearing
On August 3, 2015, after the verdicts were returned against Alavez, the court held a hearing in Pimentel's case.
The court granted the prosecution's motion to amend the information filed against Pimentel, with the following negotiated disposition: count IX, aggravated mayhem of B., amended to simple mayhem committed on June 12, 2014 (§ 203), for an upper term of eight years with a six-year enhancement for great bodily injury enhancement under section 12022.7, subdivision (d); count X, felony child abuse of B., with the dates amended to March 1 to June 10, 2014, plus the great bodily injury enhancement, for the sentence of one-third the midterm plus the enhancement; and count XII, felony child abuse of N., amended to misdemeanor child abuse of N. (§ 273a, subd. (b)), for a concurrent term; for a total stipulated term of 20 years four months.
Thereafter, Pimentel pleaded no contest to count IX, felony simple mayhem of B. (§ 203); count X, felony child abuse of B. (§ 273a, subd. a)), and count XII, misdemeanor child abuse of N. (§ 273a, subd. (b)); and admitted the enhancements alleged as to count IX and X for personal infliction of great bodily injury on a child under the age of five years (§ 12022.7, subd. (d)), pursuant to the prosecutor's statement of the negotiated disposition for 20 years four months.
As noted above, Yoval was originally charged with committing the same six felony offenses. On August 3, 2015, after Alavez was convicted by the jury and in conjunction with Pimentel's plea, Yoval pleaded no contest to count XVI, felony child abuse of B. (§ 273a, subd. (a)), and amended count XVIII, misdemeanor child abuse of N. (§ 273a, subd. (b)), for a stipulated term of four years in prison.
Pimentel's second plea hearing
On September 15, 2015, the court convened the scheduled sentencing hearing. However, the prosecutor stated that the probation department determined that Pimentel's existing plea agreement would only result in a term of 17 years four months instead of the stipulated term of 20 years four months. The prosecutor objected to the proposed reduced sentence. Defense counsel demanded the court honor the agreement and impose the lesser term.
The court denied defense counsel's motion. It permitted Pimentel to withdraw his pleas on all counts and proceed to trial. Pimentel declined to proceed to trial.
The prosecutor stated they had reached another plea agreement. The court permitted the prosecutor to amend the information against Pimentel as follows: count XII, amended from a misdemeanor back to felony child abuse of N. (§ 273a, subd. (a)); and added a new count XIX, another charge of felony child abuse of B.
The prosecutor stated that Pimentel would plead to count IX, simple mayhem of B.; count X, felony child abuse of B.; count XII, felony child abuse of N., and count XIX, the newly added charge of felony child abuse of B., and admit the great bodily injury enhancements for counts IX and X.
The court reviewed the written plea form, including paragraph No. 2. It stated defendant had not been induced to enter the pleas by any promises or representations "except for the following terms and conditions." The plea form stated that Pimentel would enter his pleas and receive the following sentences for each count and enhancement: count IX, the upper term of eight years plus six years for the great bodily injury enhancement; count X, one year four months plus two years for the enhancement (one-third the midterms); and for counts XII and XIX, one year four months (one-third the midterms) for each count; for a total term of 20 years, and dismissal of the remaining counts.
The court asked Pimentel if he reviewed the terms of the plea agreement and the computation of the 20-year term with his attorney, and signed the form. Pimentel said yes.
Pimentel pleaded no contest to count IX, felony simple mayhem of B. (§ 203), with an enhancement for personal infliction of great bodily injury on a child under the age of five years (§ 12022.7, subd. (d)); count X, felony child abuse of B., with the same great bodily injury enhancement; count XII, felony child abuse of N.; and count XIX, felony child abuse of B., pursuant to the terms of the plea agreement for a total term of 20 years. The court stated that it had signed the written plea agreement and incorporated it into the docket record.
Sentencing hearing
On September 29, 2015, the court held the sentencing hearing for Pimentel and found there were no mitigating circumstances and multiple aggravating circumstances: the crimes involved acts disclosing a "most high degree" of "cruelty, viciousness, and callousness" that went well beyond the elements of the offenses, and "[g]ross inhumanity would be a mild statement in this regard"; he took advantage of a position of trust or confidence; he had numerous prior convictions, including infliction of corporal injury to a spouse or cohabitant, and elder abuse; he served two prior prison terms; and his prior performance on probation was poor.
The court sentenced Pimentel to 20 years in prison, consistent with the stated terms of the written plea agreement: count IX, mayhem of B., the upper term of eight years, plus six years for the great bodily injury enhancement; count X, felony child abuse of B., a consecutive term of one year four months plus two years for the great bodily injury enhancement (one-third the midterms); count XII, felony child abuse of N., a consecutive term of one year four months (one-third the midterm); and count XIX, felony child abuse of B., a consecutive term of one year four months (one-third the midterm).
On October 28, 2015, appellant filed a notice of appeal and requested a certificate of probable cause only based on the denial of his pre-plea motions pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). On October 30, 2015, the court granted appellant's request for a certificate of probable cause.
DISCUSSION
On appeal, Pimentel contends that the court imposed a legally unauthorized sentence when it imposed the six-year term for the great bodily injury enhancement, consecutive to the term for mayhem. Pimentel argues that section 12022.7, subdivision (g) states that a great bodily injury enhancement cannot be imposed when great bodily injury is an element of the substantive offense, and great bodily injury is an element of mayhem.
Pimentel further contends he has not forfeited review of this contention because the court imposed a legally unauthorized sentence that may be corrected at any time, and he obtained a certificate of probable cause that allows him to raise any nonfrivolous issue. Pimentel asserts that he is not trying to obtain a more lenient sentence or reduce the term imposed pursuant to the negotiated disposition, but instead seeks to withdraw his pleas and start over.
The People reply that Pimentel cannot withdraw his pleas, he forfeited appellate review of the issue, and the trial court had fundamental jurisdiction to impose the aggregate term of 20 years, including the enhancement attached to the mayhem conviction.
A. Mayhem and the Great Bodily Injury Enhancement
In count IX, Pimentel pleaded no contest to mayhem in violation of section 203: "Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem."
Section 12022.7 defines several enhancements for the personal infliction of great bodily injury in the commission or attempted commission of felony. (See, e.g., People v. Cook (2015) 60 Cal.4th 922, 925 (Cook).) In this case, Pimentel admitted the allegation that he personally inflicted great bodily injury upon two-year-old, B., pursuant to section 12022.7, subdivision (d), which states:
"Any person who personally inflicts great bodily injury on a child under the age of five years 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 four, five, or six years." (Italics added.)
Section 12022.7, subdivision (f) separately defines "great bodily injury" as "a significant or substantial physical injury."
Section 12022.7 imposes "mandatory sentence enhancements for crimes which resulted in the infliction of great bodily injury." (People v. Beltran (2000) 82 Cal.App.4th 693, 696 (Beltran).) "A plain reading of ... section 12022.7 indicates the Legislature intended it to be applied broadly." (People v. Sainz (1999) 74 Cal.App.4th 565, 574.) Nevertheless, "[t]he statute itself clearly states the only exceptions of its application." (Ibid.) Section 12022.7, subdivision (g) states two exceptions, the second of which is the subject of this appeal.
"This section shall not apply to murder or manslaughter or a violation of Section 451 [arson] or 452 [unlawfully causing a fire]. Subdivisions (a), (b),
(c), and (d) shall not apply if infliction of great bodily injury is an element of the offense." (Italics added.)
The California Supreme Court has not expressly addressed the second sentence of subdivision (g) except to cite Beltran with approval for its holding that "no such [great bodily injury] enhancement can attach to a crime for which infliction of great bodily injury is an element. [Citation.]" (Cook, supra, 60 Cal.4th at p. 934.)
The second sentence of section 12022.7, subdivision (g) was addressed in People v. Pitts (1990) 223 Cal.App.3d 1547 (Pitts), where the defendant repeatedly slashed the victim with a box cutter and nearly severed her breast. The defendant was convicted and sentenced for mayhem (§ 203) with an enhancement for the personal infliction of great bodily injury (§ 12022.7, subd. (a)). On appeal, the defendant argued the trial court improperly imposed the enhancement. Pitts agreed and held that "great bodily injury is an element of mayhem. Therefore, an enhancement for great bodily injury cannot be imposed in this case" since defendant had been convicted of an offense for which great bodily injury was an element, even though great bodily injury was not expressly defined as an element of mayhem. (Pitts, supra, at pp. 1558-1559, original italics.)
"By its terms,... section 12022.7 precludes a great bodily injury enhancement where 'infliction of great bodily injury is an element of the offense.' As used in ... section 12022.7 great bodily injury means 'a significant or substantial physical injury.' [¶] Defendant was convicted of mayhem. Mayhem is defined in ... section 203 as follows: 'Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem.' [¶] It is beyond cavil that defendant committed mayhem on the victim in this case and inflicted great bodily injury.... [¶] [O]ur research discloses that from the early common law to modern California law, mayhem has been considered a cruel and savage crime.... Accordingly, we find great bodily injury as defined in ... section 12022.7 is an element of mayhem and the enhancement for great bodily injury is inapplicable." (Id. at pp. 1559-1560, fn. omitted; see also People v. Hill (1994) 23 Cal.App.4th 1566, 1575 ["Great
bodily injury is unquestionably an element of mayhem; it is therefore improper to use that factor to aggravate the sentence for that offense"].
In People v. Santana (2013) 56 Cal.4th 999, the court held that CALCRIM No. 801, the pattern instruction for a violation of section 203, mayhem, improperly required additional proof of "serious bodily injury" in addition to the injuries delineated in section 203. (Santana at p. 1001.) Santana noted the pattern instruction had been modified based on Pitts, but held that "we cannot conclude that the offense of mayhem includes a serious bodily injury requirement simply based on cases holding that mayhem includes a great bodily injury component." (Id. at p. 1009.) "By delineating the type of injuries that will suffice for mayhem, the Legislature itself established an injury's requisite level of seriousness in section 203, and when needed, subsequent cases have given further amplification. [Citations.] To add a serious bodily injury requirement to the specific injuries listed in section 203 is more confusing than elucidating." (Id. at p. 1010.)
Pimentel is thus correct that the great bodily injury enhancement is inapplicable to convictions for mayhem.
B. Forfeiture
The People agree that the great bodily injury enhancement cannot be imposed with a mayhem conviction, but argue that Pimentel has forfeited review of this issue because he failed to object at the sentencing hearing. Pimentel argues that the imposition of the great bodily injury enhancement resulted in an unauthorized sentence, and an unauthorized sentence can be raised at any time. As we will explain, these arguments raise somewhat circular contentions.
"[T]he 'unauthorized sentence' concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal. [Citations.]" (People v. Scott (1994) 9 Cal.4th 331, 354.) "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (Ibid.) "Because these sentences 'could not lawfully be imposed under any circumstance in the particular case' [citation], they are reviewable 'regardless of whether an objection or argument was raised in the trial and/or reviewing court.' [Citation.]" (People v. Smith (2001) 24 Cal.4th 849, 852.)
Pimentel relies on his claim of an unauthorized sentence in support of a further argument that the matter should be remanded so he can withdraw his plea agreement and start the process over. "[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. Panizzon (1996) 13 Cal.4th 68, 79; People v. Shelton (2006) 37 Cal.4th 759, 766.)
Pimentel requested and obtained a certificate of probable cause, but that request was limited to the denial of his pre-plea Marsden motions and not based on the imposition of an unauthorized sentence or withdrawal of his plea agreement. Nevertheless, a defendant's statement in support of his request for a certificate of probable cause "need not list every potential issue; if the trial court issues the certificate based on even a single nonfrivolous claim, the defendant may raise all of his or her claims on appeal - those that require a certificate as well as those that do not - even if they were not identified in the statement filed with the trial court. [Citation.]" (People v. Johnson (2009) 47 Cal.4th 668, 676.)
Pimentel has not forfeited appellate review of this issue since he obtained a certificate of probable cause.
C. Estoppel and the Plea Agreement
While Pimentel did not "forfeit" his contention about an unauthorized sentence, he is estopped from raising this issue as a means to withdraw from his plea agreement, based on the nature of the agreement.
When parties to a plea agreement negotiate "only a maximum term, the parties leave to judicial discretion the proper sentencing choice within the agreed limit. Unless the agreement itself specifies otherwise, appellate issues relating to this reserved discretion are therefore outside the plea bargain and cannot constitute an attack on its validity." (People v. Buttram (2003) 30 Cal.4th 773, 789, fn. omitted (Buttram).) "Unless it specifies otherwise, a plea agreement providing for a maximum sentence inherently reserves the parties' right to a sentencing proceeding in which ... they may litigate the appropriate individualized sentence choice within the constraints of the bargain and the court's lawful discretion, and ... appellate challenges otherwise available against the court's exercise of that discretion are retained." (Id. at p. 777.)
Thus, where the parties negotiate only a maximum term, "[s]uch an agreement, by its nature, contemplates that the court will choose from among a range of permissible sentences within the maximum, and that abuses of this discretionary sentencing authority will be reviewable on appeal, as they would otherwise be." (Buttram, supra, 30 Cal.4th at pp. 790-791; People v. Shelton, supra, 37 Cal.4th at pp. 769-770; People v. Jordan (2006) 141 Cal.App.4th 309, 322.)
In contrast, " '[a] litigant who has stipulated to a procedure in excess of jurisdiction may be estopped to question it when "[t]o hold otherwise would permit the parties to trifle with the courts." ' [Citation.]" (People v. Jordan, supra, 141 Cal.App.4th at p. 322, italics added.)
"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.' [Citation.]" (People v. Hester (2000) 22 Cal.4th 290, 295, italics in original.)
"A lack of jurisdiction in its fundamental or strict sense results in ' "an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties." [Citation.] On the other hand, a court may have jurisdiction in the strict sense but nevertheless lack " 'jurisdiction' (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites." [Citation.] When a court fails to conduct itself in the manner prescribed, it is said to have acted in excess of jurisdiction.' [Citations.]" (People v. Lara (2010) 48 Cal.4th 216, 224-225, italics in original.)
"The distinction is important because the remedies are different. '[F]undamental jurisdiction cannot be conferred by waiver, estoppel, or consent. Rather, an act beyond a court's jurisdiction in the fundamental sense is null and void' ab initio. [Citation.] 'Therefore, a claim based on a lack of ... fundamental jurisdiction[ ] may be raised for the first time on appeal. [Citation.] "In contrast, an act in excess of jurisdiction is valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time. [Citations.]" [Citations.]' [Citations.]" (People v. Lara, supra, 48 Cal.4th at p. 225, first italics in original, second italics added.)
D. Analysis
In this case, Pimentel knowingly and intelligently negotiated and agreed to the terms specified in the written plea agreement for an aggregate term of 20 years. The written plea agreement did not simply state a maximum sentence "lid" of 20 years, with the court to exercise its discretion to calculate the aggregate term. Instead, the plea agreement specified the sentence that would be imposed for the each of the four felony offenses and two enhancements, including the consecutive term for the great bodily injury enhancement attached to count IX, mayhem.
At the plea hearing, the court expressly addressed the individual terms stated in the plea agreement and asked Pimentel if he understood, and he said yes. Pimentel entered his pleas, the court subsequently sentenced him according to the specific terms for each offense and enhancement as stated in the plea agreement, and the court had fundamental jurisdiction to do so.
It is significant that after defendant's first plea agreement, the court and the parties learned from the probation department that it would result in a sentence less than stipulated term of 20 years four months. At that point, the prosecutor amended the information and defendant entered into another plea agreement that fulfilled the parties' mutual expectations of at least an aggregate sentence of 20 years. Pimentel may not unravel on appeal the consequences of an agreement that was so knowingly crafted.
Thus, while Pimentel may have properly obtained a certificate of probable cause, he is estopped from obtaining relief and withdrawing from his plea agreement. (People v. Hester, supra, 22 Cal.4th at p. 295.)
DISPOSITION
The judgment is affirmed.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
SMITH, J. /s/_________
BLACK, J.
Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------