Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR485983
Sepulveda, J.
Defendant pleaded guilty to one count of rape of a child and one count of sodomy of a child in connection with sexual assaults on his son and daughter. On appeal, he argues that the imposition of the upper term for his sodomy conviction violated his Sixth and Fourteenth Amendments to the United States Constitution because the trial court relied on aggravating factors which were not tried to a jury.
I. Factual and Procedural Background
Defendant has two young children he was accused of raping and sodomizing. According to the probation report (defendant waived his right to a preliminary hearing), defendant’s son lived with him and his wife (the son’s stepmother) from December 2004 to December 2005. He was nine years old when he began living with defendant. While his son lived with defendant, defendant would show him pornographic magazines and images on his computer, then would tell his son to take off his clothes and force him to participate in various sex acts. During one incident, defendant pulled his son into a locked room, threatened him with a wooden paddle, and then sodomized him. When the boy said, “ ‘I don’t like this,’ ” he says defendant answered, “ ‘I do.’ ” Defendant later told his son that if he told anyone about the incident, he would “ ‘break every bone in your [his son’s] body.’ ” Defendant’s son also reported seeing defendant having sex with his young sister, who also lived with defendant.
Defendant’s son later moved to his mother’s home in another state, and told his mother about the sexual abuse. Representatives from child protective services in that state were notified, and they contacted the Sonoma County Sheriff’s Department. Detectives spoke with defendant’s daughter, who first denied having been sexually assaulted by defendant. During a second interview, defendant’s daughter became emotional, and told investigators that defendant had sexually assaulted her starting when she was six years old, continuing to when she was 11 (in April 2006). She described incidents when defendant raped and sodomized her. Defendant’s daughter said that when defendant sodomized her, “her head would be buried in a pillow and she would scream ‘loud.’ ”
Defendant admitted to detectives that he watched pornography with his son and daughter, and that he was sexually aroused by it. He stated that “his mind was ‘not always [his] own,’ and that he is ‘in a different world sometimes.’ ” He said it was possible that “he could have done ‘something’ ” to his children while he was in that state. Defendant’s wife admitted to fondling the victims while defendant had intercourse with them. She told an investigator she fondled the daughter’s breasts on three to six occasions, and that she fondled the son’s genitals on approximately four occasions.
Defendant was charged in a consolidated complaint with one count of continuous sexual abuse of a child under the age of 14 years (defendant’s daughter) (Pen. Code, § 288.5—count 1), seven counts of rape of a child (defendant’s daughter) (§ 269, subd. (a)(1)—counts 2 through 8), two counts of lewd and lascivious conduct upon a child (one count as to each child) (§ 288, subd. (a)—counts 9, 17), two counts of sodomy on a child (defendant’s son) (§ 286, subd. (c)(1)—counts 15, 16), and one count of showing pornography to a minor (§ 288.2, subd. (b)—count 18). With respect to counts 9 and 17, the complaint contained a multiple victim allegation (§ 667.61, subds. (b), (e)(5)).
Defendant’s wife was charged in the same complaint with 10 counts of sexual assault on the victims. She and defendant were jointly charged in count 17. Defendant’s wife pleaded guilty and was sentenced to 15 years to life in prison. There is nothing in the record to indicate that she appealed her sentence.
All statutory references are to the Penal Code.
On September 18, 2006, defendant waived his right to a jury trial and pleaded guilty to one count of rape of a child (count 2) and one count of sodomy of a child (count 16). When asked by the trial court whether there was a factual basis for defendant’s plea, defendant’s attorney answered, “Yes, Your Honor. Based on the police report, interviews, and also a discussion with my client at the jail, including last Friday.” Pursuant to a plea agreement, the remaining counts against defendant were dropped. The plea agreement provided that defendant understood that the trial court could consider the dismissed charges against him in determining the appropriate sentence and setting the amount of victim restitution (a “Harvey waiver”). (People v. Harvey (1979) 25 Cal.3d 754.)
The plea agreement also provided that defendant understood the maximum punishment he could receive was 15 years to life on count 2, and eight years on count 16. Before the plea was taken, the prosecutor explained to the trial court that a conviction on count 16 exposed defendant to “a three-, six-, or eight-year . . . sentence, a determinant term of three-, six-, or eight years.” The following exchange then occurred: “THE COURT: Is that your understanding, Mr. Mason? [¶] “DEFENDANT R. MASON: Yeah.”
Consistent with that understanding, the trial court later sentenced defendant to an indeterminate term of 15 years to life on count 2, to be served consecutively with an upper-term sentence of eight years on count 16. In imposing the aggravated term for the sodomy conviction, the trial court cited the following factors: the crime involved a high degree of callousness because defendant threatened the child with a paddle and told him he would “break all his bones” if he reported the abuse, and because defendant responded, “[b]ut I do,” when the victim cried during an assault that he did not like it; the victim was particularly vulnerable because he was molested by two people in concert; defendant occupied a position of leadership and dominance over his wife in commission of the acts; the manner in which the crime was carried out demonstrated planning, because defendant locked the victim in a room and used pornography to desensitize him; defendant took advantage of a position of trust to commit the offense, because the victim was his own child; defendant had engaged in violent conduct that indicated a serious danger to society (the manner of the commission of the charged offenses); and the scope of defendant’s crimes was “elevated to the extreme by the number of counts describing repeated sexual activity against both victims” in the counts that were dismissed subject to defendant’s Harvey waiver. (Cal. Rules of Court, rules 4.421(a)(1) & (3)-(4) & (8) & (11), (b)(1), 4.408.) Defendant timely appealed.
II. Discussion
Defendant’s sole argument on appeal is that the imposition of the upper term for his conviction for sodomy of a child violated the prohibition on increasing the penalty for a crime beyond the prescribed statutory maximum based on a factor that was not submitted to a jury, and proved beyond a reasonable doubt. (Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856 (Cunningham); Blakely v. Washington (2004) 542 U.S. 296 (Blakely).) Had defendant not pleaded guilty and waived his right to a trial by jury, we might agree. Defendant had no prior convictions, and the factors relied on by the trial court in imposing the maximum sentence did not fall into any exception to defendant’s right to a jury trial. (Cf. Cunningham, supra, 127 S.Ct. at p. 860 [trial court may impose sentence above the statutory maximum based on the fact of a prior conviction, without the need for a jury trial].)
However, defendant pleaded guilty, and he signed a plea agreement stating that the maximum sentence (eight years) could be imposed following his guilty plea. He in effect admitted the existence of facts necessary to impose the upper term and thereby waived his right to jury trial on those factors. We therefore find that there is no Blakely/Cunningham violation here. Defendant acknowledges that his trial attorney stipulated that there was a factual basis for the plea, but argues that he “merely agreed that ‘a prima facie factual basis for the charges’ could be found . . .—and nothing more.” Although it is true that section 1192.5 requires only that a prima facie factual basis for the charges must be established before a conditional plea is accepted (People v. Holmes (2004) 32 Cal.4th 432, 442), our focus is on the guilty plea that followed. “A guilty plea ‘admits every element of the crime charged’ [citation] and ‘is the “legal equivalent” of a “verdict” [citation] and is “tantamount” to a “finding” [citations]’ [citation].” (People v. Wallace (2004) 33 Cal.4th 738, 749.) Defendant pleaded guilty to sodomizing his young son. We conclude that defendant’s rights under the federal Constitution were not violated here. We note that prior to the entry of defendant’s plea, he acknowledged that by pleading guilty, he was agreeing that the court could sentence him to a maximum of eight years on the sodomy conviction. Where, as here, a defendant agrees pursuant to a plea agreement that the maximum sentence may be imposed, the defendant necessarily admits that his conduct is sufficient to expose him to that punishment.
The issue defendant raises is now pending in the California Supreme Court. (People v. French, review granted Feb. 7, 2007, S148845.)
Respondent argues that the trial court also was justified in imposing the upper term because defendant stipulated in a Harvey waiver that the court could consider the dismissed charges against him in determining the appropriate sentence. At the time of sentencing, the trial court was bound by our Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238, which held that Blakely was inapplicable to California’s determinate sentencing scheme. Defendant argues that it is therefore questionable whether his Harvey waiver was valid, because he was not aware that he was giving up a valid right to a trial by jury of factors that increased his penalty beyond the statutory maximum.
Respondent relies on a recent Third District opinion that addressed the imposition of the upper term following a Harvey waiver; defendant argues that the case is distinguishable from this one. After briefing was complete in this appeal, the Supreme Court granted review in the Third District case. (People v. Linarez, review granted Jan. 16, 2008, S158154; Cal. Rules of Court, rules 8.1105(e)(1) [opinion no longer considered published if Supreme Court grants review], 8.1115(a) [court may not rely on unpublished Court of Appeal opinion].)
Even assuming arguendo that it was error to consider the dismissed charges against defendant in increasing his sentence, the error was harmless beyond a reasonable doubt. (People v. Sandoval (2007) 41 Cal.4th 825, 838.) Citing California Rules of Court, rule 4.408, which provides that the enumeration of some criteria in setting discretionary sentencing is not exclusive, the trial court observed that the scope of defendant’s crimes was “elevated to the extreme by the number of counts describing repeated sexual activity against both victims” in the counts that were dismissed subject to defendant’s Harvey waiver. This was only one of several factors that the trial court relied on in increasing defendant’s sentence. In light of the fact that any of the other factors made defendant eligible for the upper term (People v. Black, supra, 35 Cal.4th at p. 1244), the trial court did not commit reversible error in also relying on the dismissed charges against defendant.
III. Disposition
The judgment is affirmed.
We concur: Ruvolo, P. J., Rivera, J.