P. v. French

Filed 10/30/06 P. v. French CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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An information charged defendant Wesley David French with 12 counts of lewd and lascivious conduct involving three young children. (Pen. Code, § 288, subd. (a).) Defendant entered negotiated pleas of no contest to six of these counts. The trial court sentenced defendant to an aggregate prison term of 18 years and dismissed the remaining charges.

On appeal, defendant’s sole claim of error is that the trial court violated principles enunciated in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakeley) when imposing sentence. We affirm the judgment.

Discussion

In giving a factual basis for defendant’s plea, the prosecutor described six instances in which defendant molested young children. As to count 1, the count at issue in this appeal, the prosecutor said that defendant took the victim “to a park bathroom and touch[ed the victim’s] penis on repeated occasions.” Defendant entered his plea of no contest with the understanding that the maximum aggregate sentence that could be imposed was 18 years.

In imposing exactly that sentence, the court selected the upper term for count 1, explaining that defendant “took advantage of a position of trust and confidence to commit the crime pursuant to [California Rules of Court] rule 4.421(a)(11).”

On appeal, defendant contends that the trial court erred in imposing the aggravated term based upon facts not proved beyond a reasonable doubt, thereby violating the principles enunciated in Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403]. But as defendant recognizes, the California Supreme Court rejected the identical claim in People v. Black (2005) 35 Cal.4th 1238. We are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

We reject defendant’s argument for another reason as well.

Plea bargaining is a judicially and legislatively recognized procedure (People v. Masloski (2001) 25 Cal.4th 1212, 1216; Pen. Code, § 1192.5) providing reciprocal benefits to the People and to the defendant (People v. Orin (1975) 13 Cal.3d 937, 942). Where, as here, a defendant agrees that the court has the authority to sentence that defendant to an upper term, he is deemed to have admitted that his conduct, as a matter of fact, can support that term. (See generally, People v. Hester (2000) 22 Cal.4th 290, 295; People v. Hoffard (1995) 10 Cal.4th 1170, 1181-1182; People v. Thomas (1986) 41 Cal.3d 837, 842-843.) Blakely does not apply where a defendant stipulates to relevant facts that support a particular term of imprisonment. (Blakely, supra, 542 U.S. at p. 310 [159 L.Ed.2d at pp. 417-418].)

Disposition

The judgment is affirmed.

HULL , J.

We concur:

NICHOLSON , Acting P.J.

MORRISON , J.

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