APPEAL from a judgment of the Superior Court of San Joaquin County, K. Peter Saiers, Judge. (Super. Ct. No. SF102633B)
The opinion of the court was delivered by: Nicholson, J.
CERTIFIED FOR PUBLICATION
Defendant Antonio Dwayne Mitchell entered into a plea bargain and pleaded guilty to six of the 24 counts charged against him in return for a specific sentence. He appeals because part of the sentence to which he agreed is based on an enhancement with which he was never charged and which he did not admit committing. He asks us to reverse the judgment and allow him to withdraw his plea.
The Attorney General asserts defendant waived his right of appeal as part of his plea bargain. The Attorney General also contends defendant is estopped from challenging the trial court's action because he benefited from the plea bargain.
We agree with defendant, and although we do not reverse the judgment, we modify the judgment by reducing his sentence and otherwise affirm. His purported waiver of his right to appeal was not knowing, intelligent, or voluntary. He also is not estopped from challenging the sentence, as he was sentenced for an enhancement which he did not commit, was not alleged against him, and to which he did not admit.
In July 2007, an information charged defendant with 24 criminal counts committed between November 4, 2006, and March 13, 2007, as follows: five counts of aggravated kidnapping, two counts of first degree robbery, three counts of second degree robbery, four counts of first degree burglary, two counts of attempted first degree robbery, two counts of dissuading a witness by force, and one count each of child endangerment, false imprisonment, aggravated assault, receiving stolen property, attempted second degree robbery, and possession of cocaine. The information also alleged defendant personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b), in connection with several of the counts.*fn1 He faced several terms of life in prison. (§ 209, subd. (b)(1).)
In August 2007, defendant initially pleaded not guilty and denied the allegations. In March 2008, he rejected a proposed plea bargain that included a prison term of 20 years.
The day after jury trial began, defendant agreed to the following plea bargain: He would plead guilty to three counts of first degree robbery (§ 211), two counts of second degree robbery (§ 211), one count of dissuading a witness by force (§ 136.1, subd. (c)(1)), and he would admit the firearm allegations in three of those counts, all in return for a prison term of 34 years eight months.*fn2 The trial court also determined defendant waived his right to appeal as part of the agreement.
The trial court accepted the plea and sentenced defendant to consecutive prison terms totaling the agreed 34 years, eight months, as follows: For the base term, the court sentenced him on one of the first degree robbery counts to a term of nine years, which is the upper term for robbery in concert with two or more other persons (§ 213, subd. (a)(1)(A)), a sentence enhancement for first degree robbery which was neither alleged against him nor to which he admitted or pleaded.*fn3 The court also imposed an additional 10 years on that count for the firearm enhancement.
The court sentenced defendant on the remaining two first degree robbery counts to two years each (one-third the middle term for first degree robbery in concert).*fn4 It also added to each of these terms an additional three years four months for the firearm enhancement (one-third the middle term).
Finally, the court correctly sentenced defendant on the two second degree robbery counts to one year each (one-third the middle term), and on the dissuading witness count to three years (the middle term).
Although the information alleged defendant committed two of the admitted first degree robbery counts with one other person, it did not allege he committed any of the robbery counts with two or more persons, the number required for the robberies to qualify as robbery in concert. The information also did not specifically allege the robbery in concert enhancements, section 213, subdivision (a)(1)(A). No evidence presented at the preliminary hearing or recited in the probation report established robbery in concert. On accepting defendant's plea, the trial court made no factual findings that could support an enhancement for robbery in concert.
Had the court sentenced defendant without applying the enhancement for first degree robbery in concert but instead applied one upper and two one-third the middle terms for the three first degree robberies not in concert, defendant's sentence would have totaled 30 years four months, a difference of four years four months.
Defendant obtained a certificate of probable cause and now appeals his sentence. He claims his sentence should be corrected or he should be allowed to withdraw his guilty plea because he was sentenced for enhancements that were not alleged or admitted or that had no factual basis. He also claims he did not waive his right to appeal.