The opinion of the court was delivered by: Robie , J.
Opinion following transfer from Supreme Court
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Jose Manual Garcia Vidales guilty of second degree robbery, conspiracy to commit a felony, criminal street gang activity, and exhibiting a deadly weapon other than a firearm, a misdemeanor. In connection with the felonies, the jury found that defendant personally used a deadly or dangerous weapon. The jury could not reach a verdict on gang enhancements. Instead of retrial on the gang enhancements, defendant entered a negotiated admission to the gang enhancement attached to the conspiracy count in exchange for both the dismissal of the gang enhancement attached to the robbery and a stipulated sentence of 11 years. The court sentenced defendant accordingly.
Defendant appeals. He did not obtain a certificate of probable cause. He contends the agreed-upon 11-year sentence was unauthorized because Penal Code*fn1 section 654 applied; counsel rendered ineffective assistance in advising defendant to enter his admission in exchange for the stipulated sentence; he did not knowingly enter the agreement; and the agreement was based on a mutual mistake.
In our first opinion in this matter, this court followed People v. Fulton (2009) 179 Cal.App.4th 1230 and concluded that defendant's contentions were non-cognizable on appeal because he was challenging the validity of his admission of the gang enhancement without a certificate of probable cause. This court also concluded that defendant was estopped from raising the section 654 issue because he stipulated to the sentence and did not preserve the section 654 issue. (People v. Vidales (Sept. 10, 2010, C062494) [nonpub. opn.].)
The California Supreme Court granted review. In People v. Maultsby (2012) 53 Cal.4th 296, the court disapproved Fulton,
concluding that a certificate of probable cause was not required to challenge his admission of the enhancement, and remanded this case for reconsideration in light of Maultsby. Based on Maultsby, defendant's contentions are cognizable on appeal. Although cognizable, we conclude that defendant is estopped from complaining about the sentence he received.
All of defendant's contentions are based on his erroneous premise that his maximum exposure was 10 years. The jury found defendant guilty of all underlying offenses and all weapon enhancements. The jury was unable to reach a verdict on only the gang enhancements attached to the conspiracy and the robbery counts. Defendant entered a negotiated admission to the gang enhancement attached to the conspiracy conviction in exchange for both the dismissal of the gang enhancement attached to the robbery conviction and a stipulated sentence of 11 years in state prison for all his convictions and enhancements. In entering this plea agreement, defendant avoided a harsher penalty for his crimes.
The triad for second degree robbery is two, three, or five years. (§ 213, subd. (a)(2).) The weapon enhancement carries one year. (§ 12022, subd. (b)(1).) Because robbery is a violent felony (§ 667.5, subd. (c)(9)), the gang enhancement attached to the robbery count carried 10 years (§ 186.22, subd. (b)(1)(C)). Conspiracy to commit the robbery carried the same triad as the robbery (§ 182, subd. (a)(1)) and the weapon enhancement added one year. But the gang enhancement attached to the conspiracy count carried a triad of only two, three, or four years. (§ 186.22, subd. (b)(1)(A).) Had both gang enhancements been retried and both found true, defendant would have faced a sentence of no less than 13 years and a maximum sentence of 16 years on the robbery conviction and enhancements. Defendant entered a negotiated admission to the gang enhancement attached to the conspiracy conviction rather than the gang enhancement attached to the robbery conviction in exchange for a stipulated sentence of 11 years, avoiding a potentially longer sentence.
That section 654 and case law generally makes punishment for both conspiracy and the underlying substantive offense impermissible (In re Cruz (1966) 64 Cal.2d 178, 180-181) is of no moment under the circumstances. California Rules of Court, rule 4.412 provides in relevant part: "(b) By agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654's prohibition of double punishment, unless that claim is asserted at the time the agreement is ...