P. v. Gallegos
A jury convicted appellant Frank Herrera Gallegos of violating Penal Code section 288, subdivision (a), committing a lewd act on a child under the age of 14 years. He challenges his conviction on the grounds the trial court erred prejudicially in admitting evidence of prior uncharged sexual offenses pursuant to Evidence Code section 1108. Gallegos further contends that reliance on this evidence as a factor in sentencing violated the principles set forth in People v. Harvey (1979) 25 Cal.3d 754 (Harvey) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
Court conclude the trial court properly admitted evidence pursuant to section 1108. Court also conclude that because Gallegos did not enter into a plea agreement and was convicted by a jury, the Harveyrule is inapplicable. Finally, the imposition of the midterm does not violate either Blakely or the United State Supreme Courts decision in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856]. Therefore, court affirm the judgment.
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