Sherrick

Timothy Sherrick was convicted of 3 counts of violating Penal Code section 288, subdivision (c), i.e., being 10 years older than the 14-year-old victim and committing lewd acts upon her. As part of the written negotiated disposition, appellant agreed: “I now waive and give up my right to appeal in this case. I understand that based on this agreement, I will not be permitted to appeal any ruling in this case. (People v. Olson (1989) 216 Cal.App.3d 601 [ 264 Cal.Rptr. 817 ].)” At the probation and sentencing hearing, the trial court imposed concurrent two-year terms on each count.

Appellant meritoriously contends that the trial court made a fundamental mistake concerning his eligibility for probation. The Attorney General concedes the sentencing error but argues waiver and harmless error. We conclude that reversal and remand for resentencing is the appropriate remedy.

We first reject the Attorney General’s theory of “waiver of appeal.” There is no question that appellant, in writing, waived his statutory right to appeal. However, “. . . general waiver of the right of appeal did not include error occurring after the waiver because it was not knowingly and intelligently…