P. v. Yates

Filed 6/27/06 P. v. Yates CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

Defendant and appellant, Shon Yates, (hereafter appellant) appeals from an upper-term sentence imposed on him after a plea agreement by which he pled guilty to one count of lewd and lascivious acts upon a minor under the age of 14. (Pen. Code, § 288, subd. (a).)^[1] He contends such a sentence violates the principle enunciated by the United States Supreme Court in Blakely v. Washington (2004) 542 U.S. 296 (Blakeley). Because of our own Supreme Court's recent ruling in People v. Black (2005) 35 Cal.4th 1238 (Black), holding that Blakely does not apply to California's determinate sentencing scheme, we disagree and hence affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

In 2003, and pursuant to a negotiated disposition, appellant pled guilty to one count of spousal abuse (§ 273.5) and was placed on probation on the condition, among other things, that he serve 30 days in county jail. Twice thereafter, once in 2003 and again in 2004, he was found to be in violation of the terms of this probation. In January 2005, appellant was charged with new offenses, i.e., four counts of committing lewd and lascivious acts upon a minor under the age of 14 years. (§ 288, subd. (a).) These charges stemmed from allegations that, in late December 2004, appellant molested his nine-year-old niece who, along with her stepmother, had been visiting family members in Crescent City from Oregon. The niece reported, both via her stepmother and later in person to a Del Norte County Deputy Sheriff, that appellant had placed his penis in her anus and ejaculated. The minor and her mother (the latter lived in California) also reported prior incidents of molestation of the minor by appellant to the authorities.

Pursuant to another negotiated disposition, appellant pled guilty to one section 288, subdivision (a), count and was sentenced to the upper-term of eight years on it, plus a concurrent lower two-year term (the original term imposed in 2003) for the prior spousal abuse conviction. Appellant timely appealed.

III. DISCUSSION

Appellant contends his sentence must be reversed pursuant to Blakely because the trial court committed constitutional error by imposing an upper term sentence based on aggravating factors that were not supported by jury findings.

In Blakely, the United States Supreme Court held that a Washington State court denied a criminal defendant his constitutional right to a jury trial by increasing the defendant's sentence for second-degree kidnapping from the â€