P. v. French

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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or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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THE PEOPLE,
Plaintiff and Respondent,
v.
WESLEY DAVID FRENCH,
Defendant and Appellant.
C050785
(Super. Ct. No.
02F07203)
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.

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D ISCUSSION
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

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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].)
D ISPOSITION
The judgment is affirmed.
HULL , J.
We concur:
NICHOLSON , Acting P.J.
MORRISON , J.

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