People v. Nolen CA3

DISCUSSION

I Defendant Is Estopped From Challenging On Appeal His Negotiated Sentence The weapon use enhancement at issue here is found in section 12022, subdivision (b), which provides in pertinent part as follows: “A person who personally uses a deadly or dangerous weapon 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 one year, unless use of a deadly or dangerous weapon is an element of that offense.” Defendant and the People both agree that the concurrent sentence the trial court here imposed for this enhancement was an unauthorized sentence because the law requires a consecutive sentence. A defendant who fails to object at trial to an unauthorized sentence generally does not forfeit the ability to challenge that sentence on appeal. However, one who negotiates a plea in exchange for a specified sentence does. “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

Further section references are to the Penal Code.

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