Filed 2/7/18 P. v. Joseph 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Yuba)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

TIRONE FELEX JOSEPH,

Defendant and Appellant.
C083045

(Super. Ct. No. CRF15-319)





Defendant Tirone Felex Joseph pleaded no contest to assault by means of force likely to produce great bodily injury, and admitted personally inflicting great bodily injury on a non-accomplice, committing the assault for the benefit of a criminal street gang, and being a juvenile offender eligible to be prosecuted in a court of criminal jurisdiction. The trial court sentenced defendant to an aggregate term of 10 years in prison, comprised of the low-term of two years for assault, three years for the great bodily injury enhancement, and five years for the gang enhancement. Defendant did not obtain a certificate of probable cause.
Defendant now contends the trial court should not have imposed both enhancements because they were based on the infliction of great bodily injury on the same victim. We will dismiss the appeal for failure to obtain a certificate of probable cause.
BACKGROUND
Pursuant to a written plea agreement, defendant agreed to plead no contest to assault by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(4).) He also agreed to admit that he personally inflicted great bodily injury on a nonaccomplice (§ 12022.7, subd. (a)), agreed to admit a five-year gang enhancement under section 186.22, subdivision (b)(1)(B), and agreed to admit he was eligible to be prosecuted in a court of criminal jurisdiction because he was a minor who was at least 14 years of age at the time the offense was committed, and that the offense was committed for the benefit of a criminal street gang (Welf. & Inst. Code, former § 707, subd. (d)(2)(C)(ii)). In exchange, the People agreed to dismiss the remaining counts. It was also agreed defendant would be placed on probation with the condition he serve up to 364 days in county jail. The plea form calculated defendant’s maximum exposure as 12 years in prison, comprised of the upper term of four years on the assault count, three years on the great bodily injury enhancement, and five years on the gang enhancement.
At the change of plea hearing, defendant indicated he had read the plea form, had sufficient time to speak with his counsel about the contents of the form, and had initialed and signed the form. He also acknowledged that he faced up to one year in jail, and that his maximum exposure for a probation violation was 12 years in prison. Thereafter, he pleaded no contest as agreed, except that contrary to the parties’ agreement, he admitted a 10-year gang enhancement under section 186.22, subdivision (b)(1)(C) rather than the five-year gang enhancement under section 186.22, subdivision (b)(1)(B).
The presentence report recommended defendant be placed on probation for five years. The report said defendant’s maximum exposure was 17 years, calculated as follows: the upper term of four years on the assault count, three years for the great bodily injury enhancement, and 10 years for the gang enhancement.
At the outset of the sentencing hearing, the prosecutor indicated the probation officer’s calculations regarding defendant’s maximum exposure were correct because defendant admitted the 10-year gang enhancement (§ 186.22, subd. (b)(1)(C)) alleged in the information, not the five-year gang enhancement (§ 186.22, subd. (b)(1)(B)) he agreed to admit as part of the plea agreement. The parties agreed the information could be amended to allege the five-year gang enhancement so that defendant’s maximum exposure for a probation violation would be 12 years in prison, as contemplated by the plea agreement.
After defendant withdrew his admission to the 10-year gang enhancement (§ 186.22, subd. (b)(1)(C)) and admitted the five-year gang enhancement (§ 186.22, subdivision (b)(1)(B)), the trial court suspended imposition of sentence and placed defendant on probation for five years with various terms and conditions. In pronouncing sentence, the trial court specifically advised defendant that a probation violation could result in a 12-year prison term.
In April 2016, the probation department filed a petition alleging defendant had violated the conditions of his probation. Defendant admitted violating his probation. At a sentencing hearing in September 2016, the trial court sentenced defendant to an aggregate term of 10 years in prison, comprised of the low-term of two years on the assault count, three years for the great bodily injury enhancement, and five years for the gang enhancement. In doing so, the trial court noted defendant was aware a probation violation could result in a 12-year prison sentence.
Defendant did not obtain a certificate of probable cause.
DISCUSSION
Defendant contends his sentence was unauthorized because it was partly based on the great bodily injury enhancement. He argues that the trial court’s imposition of the great bodily injury enhancement and the five-year gang enhancement violated section 1170.1, subdivision (g). According to defendant, the trial court should have only imposed the gang enhancement. The People agree the imposition of both enhancements violates section 1170.1, subdivision (g), but argue we should dismiss the appeal for lack of a certificate of probable cause. We conclude dismissal of the appeal is warranted.
“[S]ection 1237.5 provides that a defendant may not take an appeal from a judgment of conviction entered on a plea of guilty or nolo contendere unless he has filed in the superior court a statement of certificate grounds, which go to the legality of the proceedings, including the validity of his plea, and has obtained from the superior court a certificate of probable cause for the appeal.” (People v. Mendez (1999) 19 Cal.4th 1084, 1095.) But “[n]otwithstanding the broad language of section 1237.5, it is settled that two types of issues may be raised in a guilty or nolo contendere plea appeal without issuance of a certificate: (1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.” (People v. Panizzon (1996) 13 Cal.4th 68, 74 (Panizzon).)
The certificate requirements of section 1237.5 should be applied strictly. (People v. Zuniga (2014) 225 Cal.App.4th 1178, 1183.) “[T]he critical inquiry is whether a challenge to the sentence [imposed after a guilty or no contest plea] is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5.” (Panizzon, supra, 13 Cal.4th at p. 76, italics omitted.)
“Even when a defendant purports to challenge only the sentence imposed, a certificate of probable cause is required if the challenge goes to an aspect of the sentence to which the defendant agreed as an integral part of a plea agreement. [Citation.]” (People v. Johnson (2009) 47 Cal.4th 668, 678 (Johnson).) (See, e.g., People v. Cuevas (2008) 44 Cal.4th 374, 377 [certificate required for claim that the sentence imposed, which defendant was advised was the maximum possible sentence for the remaining charges after additional charges were dismissed pursuant to a plea agreement, violates the multiple punishment prohibition of § 654]; People v. Shelton (2006) 37 Cal.4th 759, 763 [certificate required for claim that the sentence imposed, whose length equaled the agreed-upon lid, violates the multiple punishment prohibition of § 654]; Panizzon, supra, 13 Cal.4th at p. 73 [certificate required for claim that imposition of sentence to which defendant agreed pursuant to plea agreement constituted cruel and unusual punishment].) “[A]s a consequence of the plea agreement, the validity of an agreed-upon aspect of the sentence is not in contention at the sentencing hearing. Such an agreed-upon aspect of the sentence cannot be challenged without undermining the plea agreement itself. Consequently, an attack upon an integral part of the plea agreement ‘is, in substance, a challenge to the validity of the plea . . . .’ ” (Johnson, supra, at pp. 678-679.)
Here, the great bodily injury enhancement was part of his plea agreement. Acceptance of the enhancement eliminated two of the three counts charged against him along with a 10-year gang enhancement asserted pursuant to section 186.22, subdivision (b)(1)(C). As part of the plea agreement, the parties agreed defendant would admit the five-year gang enhancement under section 186.22, subdivision (b)(1)(B). Thus, his contention on appeal is a challenge that “goes to an aspect of the sentence to which [he] agreed as an integral part of the plea agreement.” (Johnson, supra, 47 Cal.4th at p. 678.) The challenge requires a certificate of probable cause and is not cognizable without one. (Id. at pp. 678-679.)
A claim that a sentence imposed pursuant to a plea bargain is unauthorized cannot be used to evade the requirements of section 1237.5 because such a claim attacks the lawfulness of the defendant’s conviction, which occurred at the time the plea was entered. (People v. Zuniga, supra, 225 Cal.App.4th at pp. 1186-1187; People v. Jones (1995) 33 Cal.App.4th 1087, 1091-1094.) When defendant entered his plea and admissions, he conclusively admitted guilt and acknowledged that the trial court could lawfully impose any sentence within the plea agreement’s terms. His sentence complied with the plea agreement because the trial court imposed a term below the stipulated lid of 12 years.
Under these circumstances, we will dismiss defendant’s appeal for noncompliance with section 1237.5. Because we dismiss the appeal, we need not address the People’s forfeiture argument.
DISPOSITION
The appeal is dismissed.



MAURO , J.



We concur:



HULL , Acting P. J.




HOCH , J.