Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-479926.
RIVERA, J.
Robert Todd Myers appeals from a judgment imposed upon his guilty plea to two counts of lewd and lascivious conduct on a child (Pen. Code, § 288, subd. (a)). The trial court sentenced defendant to the aggravated term of 10 years in state prison. Defendant appealed from the judgment, contending that the trial court’s imposition of the upper term deprived him of his right to a jury trial because the sentencing decision was based on facts neither admitted by him nor found true by a jury in violation of Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We affirmed the judgment in People v. Myers (Dec. 12, 2006, A114474) [nonpub. opn.].
The California Supreme Court granted defendant’s petition for review. On June 11, 2008, the court transferred the case back to this court with directions to vacate our decision and reconsider the cause in light of People v. French (2008) 43 Cal.4th 36 (French). We affirm.
I. FACTUAL BACKGROUND
On January 13, 2006, a felony complaint was filed charging defendant with continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a) (count I)), three counts of lewd and lascivious conduct on a child (Pen. Code, § 288, subd. (c) (counts II-IV)), and willfully inflicting physical and mental pain on a child (Pen. Code, § 273a, subd. (a) (count V)). The charges stemmed from defendant’s abuse of his daughter over a 10-year period. His daughter alleged that she was sexually molested from the age of six years, and that defendant required her to orally copulate him and masturbate him on a regular basis. She stated that initially the molestation occurred a few times per week but that recently it took place approximately once a month.
On May 10, 2006, the complaint was amended to add two additional counts of lewd and lascivious conduct on a child (counts VI & VII). Defendant pled guilty to counts VI and VII. The court dismissed the remaining counts with a Harvey waiver. Defendant acknowledged that the court could sentence him to a maximum term of 10 years in state prison.
People v. Harvey (1979) 25 Cal.3d 754.
On June 29, 2006, the trial court sentenced defendant to the aggravated term of eight years on count VI plus a consecutive term of two years (one-third the midterm) on count VII. The court found that the aggravating factors—the seriousness of the charges, the manner of the crime indicating planning, the vulnerability of the victim, defendant’s pedophilia, his extreme danger to any child, and that he took advantage of a position of trust—outweighed any mitigating factors.
II. DISCUSSION
Defendant contends that this case must be remanded for resentencing because he did not admit the aggravating factors relied upon by the trial court nor did a jury find them true. Thus, he asserts that under Cunningham v. California (2007) 549 U.S. 270, ___ [166 L.Ed.2d 856, 875-876; 127 S.Ct. 856, 870-871] (Cunningham), imposition of the aggravated term is unconstitutional. In Cunningham, the United States Supreme Court held that imposition of an upper term sentence under California’s determinate sentencing law violates the Sixth Amendment because it permits trial courts to impose the sentences based on aggravating factors found true using only a preponderance of the evidence standard. (Cunningham, at p. __ [166 L.Ed.2d at p. 876; 127 S.Ct. at p. 871].) We conclude that any Cunningham error was harmless.
Preliminarily, we address defendant’s argument that the issue was not forfeited because he did not object to the sentence below. The French court held that the defendant did not forfeit his Blakely/Cunningham claim by failing to raise it in the trial court because there was no express waiver of the right to a jury trial on the aggravating factors. (French, supra, 43 Cal.4th at pp. 46-48.) “When the constitutional right to jury trial is involved, we have required an express waiver even in cases in which the circumstances make it apparent that all involved—the trial court, the prosecutor, defense counsel, and the defendant—assumed that the defendant had waived or intended to waive the right to a jury trial. [Citations.] [Fn. omitted.] [¶] At the time that defendant entered his plea of no contest, he expressly waived his right to a jury trial on the substantive offenses, but this waiver did not encompass his right to a jury trial on any aggravating circumstances.” (Id. at pp. 47-48.)
Here, defendant entered his guilty plea after the Blakely decision. As we read French, however, pleading guilty to the underlying offenses without expressly waiving the right to a jury trial on the aggravating factors will not be construed as a waiver of Blakely rights, even if the plea was entered after Blakely was decided. Under French, defendant is entitled to raise his Blakely claim for the first time on appeal.
The French court held that a defendant who enters a guilty plea pursuant to an agreement that includes the upper term as the maximum sentence does not thereby admit that his conduct could support that term. (French, supra, 43 Cal.4th at p. 48.) Rather, the plea agreement contemplates that the court will choose from a range of permissible sentences up to the agreed-upon maximum term. (Id. at p. 49.) In addition, defendant’s plea constitutes an admission of the elements of the charged offenses only, and not of any additional aggravating circumstances. (Id. at p. 50.) A defendant’s stipulation to a factual basis for the plea does not constitute an admission to the aggravating circumstances. (Ibid.)
Where, as here, the aggravating circumstances upon which the trial court relied to impose the upper term were neither admitted by defendant nor established by a jury verdict, his Sixth Amendment right to a jury trial was violated. (French, supra, 43 Cal.4th at p. 52.) The error is subject to the Chapman v. California (1967) 386 U.S. 18 harmless error analysis. (French, supra, 43 Cal.4th at pp. 52-53.) “[T]hat test requires us to determine ‘whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.’ ([People v.] Sandoval[ (2007)] 41 Cal.4th [825,] 838.) If we conclude, beyond a reasonable doubt, that a ‘jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.’ (Id. at p. 839.)” (Id. at p. 53.)
Here, the court found numerous aggravating factors supporting imposition of the upper term including that the victim was particularly vulnerable, that the manner in which the crime was carried out indicated planning, and that defendant took advantage of a position of trust. We agree with the Attorney General that it is unquestionable that the jury would have found that the victim was particularly vulnerable and that defendant took advantage of a position of trust. The record demonstrates that defendant took advantage of a position of trust by sexually abusing his daughter when she was just six years old and continuing the abuse over a 10-year period. Indeed, defendant conceded in his opening brief that “the vulnerability or breach of trust (but not both) and planning aggravating circumstances may be applicable here and that the trial court properly considered these factors.” Accordingly, any Cunningham error was harmless.
III. DISPOSITION
The judgment is affirmed.
We concur: RUVOLO, P.J., SEPULVEDA, J.