Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM025178
BLEASE, Acting P. J.
Defendant Hugo Aguilar Salazar pled no contest to two counts of child molestation (Pen. Code, § 288, subd. (a); further statutory references are to the Penal Code) and one count of dissuading a witness. (§ 136.1, subd. (b)(1).) In exchange, numerous other charges were dismissed. Probation was denied and defendant was sentenced to state prison for a term of 12 years, including upper terms on the child molestation convictions.
“[A]ll but one third the midterm” on one of the two counts was stayed.
Defendant appeals, contending his sentence violated the holding in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and, additionally, that the trial court relied on improper factors in imposing the upper terms. We shall affirm.
FACTUAL BACKGROUND
According to the probation report, the 36-year-old defendant repeatedly molested his girlfriend’s daughter over a period of six years, beginning when she was nine years old. Defendant’s conduct included anal and digital penetration. In addition, he repeatedly forced the victim to orally copulate him and touch his penis, and gave her money on one occasion to touch his penis. Defendant also showed the victim pornographic movies. According to the victim, the incidents always occurred when her mother was not home, and defendant threatened the victim that he would “beat up” or “do something” to her mother if she told anyone about the incidents. Another minor reported that, seven or eight years earlier, defendant removed the victim’s shirt in his presence and offered him money to touch the victim’s breast or defendant’s penis. Defendant denied the conduct described by the victim, maintaining he had touched only the victim’s breast and that this had occurred when she was 14 or 15 years old after she had aroused him by exiting the shower in front of him.
DISCUSSION
I
Defendant claims that imposition of an upper term sentence violated his right to a jury trial as set forth in the United States Supreme Court’s decision in Blakely, which held that any circumstance other than the fact of a prior conviction that is relied on by a trial court to increase the penalty for a crime beyond the statutory maximum must be tried before a jury and proved beyond a reasonable doubt. (Blakely, supra, 542 U.S. at pp. 301, 303 [159 L.Ed.2d at pp. 412, 413-414].) The People contend defendant cannot raise this claim without a certificate of probable cause. Although we reject the People’s contention, we conclude that defendant waived any challenge under Blakely when he agreed that the trial court alone would decide his sentence and could consider the entire factual background of all charges in making this determination.
At the time defendant entered his pleas of no contest, he initialed and signed a plea form containing a statement regarding the maximum sentence he could receive as a result of his plea. The People argue that defendant’s Blakely claim is precluded by his failure to obtain a certificate of probable cause “because he received a sentence within the maximum he agreed to.” The People rely on People v. Shelton (2006) 37 Cal.4th 759 (Shelton), and our subsequent decision in People v. Bobbit (2006) 138 Cal.App.4th 445 (Bobbit) to support their position.
The plea form set forth the maximum sentence as 16 years 8 months; however, the probation report later clarified that the maximum term was 12 years.
In Shelton, the California Supreme Court held that “‘a challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself’ and thus requires a certificate of probable cause.” (Shelton, supra, 37 Cal.4th at p. 766, quoting People v. Panizzon (1996) 13 Cal.4th 68, 79.) In reaching this conclusion, the court observed that “the specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term.” (Shelton, supra, at p. 768.)
In Bobbit, this court applied the reasoning in Shelton to dismiss a defendant’s appeal in which he raised sentencing error under Blakely without obtaining a certificate of probable cause after entering into a plea agreement involving an agreed-upon maximum sentence. (Bobbit, supra, 138 Cal.App.4th at pp. 447-448.) The defendant in that case did not execute a written plea agreement, and when the court orally recited the terms of the agreement prior to the defendant’s plea, it stated that the defendant’s “agreement [wa]s that [he] would be pleading for a top sentence of 12 years, 8 months, that would be a lid.” (Id. at p. 448.) In addition, although Blakely already had been decided, defense counsel in Bobbit did not raise the issue during plea negotiations or during sentencing, “dispel[ing] any doubt that the issue was not preserved through the oversight of defense counsel.” (Ibid.) We concluded, as a matter of law, “that the plea agreement did not preserve, either at sentencing or on appeal, the issue that the court did not have the authority to impose an upper term sentence in the absence of a jury finding of one or more aggravating circumstance(s).” (Ibid.)
The facts in Bobbit are distinguishable from those in the present case. The trial court’s use of the term “lid” in Bobbit when describing the plea agreement implied that the prosecution agreed to a reduction in the defendant’s maximum sentence exposure, perhaps through the exercise of discretion in charging and dismissing offenses. In any event, the court’s discretion to impose the maximum sentence was part of the defendant’s plea agreement.
Here, in contrast, defendant’s plea agreement did not include a sentencing lid. The consequences of defendant’s plea were set forth in a written form initialed in appropriate places and signed by defendant. The portion of the form setting forth the plea agreement stated that the only promise he had received in exchange for his pleas was the dismissal of other charges and cases. Elsewhere on the form, the maximum sentence was described. The standard advice regarding the maximum sentence set forth on the form would have been provided even in the absence of a plea bargain, as advisement of the possible penal consequences of a conviction is generally a prerequisite to a valid plea. (In re Yurko (1974) 10 Cal.3d 857, 864; see Boykin v. Alabama (1969) 395 U.S. 238, 244, fn. 7 [23 L.Ed.2d 274, 280] [“‘the trial court is best advised to conduct an on the record examination of the defendant which should include, inter alia, an attempt to satisfy itself that the defendant understands . . . the permissible range of sentences.’”].) Contrary to the assertion of the People, the maximum sentence set forth on defendant’s plea form was not an agreed upon “lid” but, instead, was the maximum sentence the parties believed defendant could be sentenced to by law as a result of his plea.
On the record before us, there is no basis to conclude that the advice contained on the plea form as to the maximum possible punishment was part of defendant’s plea agreement. Accordingly, we conclude defendant was not required to obtain a certificate of probable cause to receive appellate review of his Blakely challenge.
Nonetheless, we reject defendant’s claim on another basis. The trial court relied on three aggravating factors when it imposed the upper terms: (1) the victim was particularly vulnerable; (2) the crime was premeditated over a period of years; and (3) defendant took advantage of a position of trust. Under Blakely, such factors ordinarily must be tried before a jury to impose an upper term in the absence of recidivist factors (i.e., factors stemming from “the fact of a prior conviction”) or admissions by the defendant. (Blakely, supra, 542 U.S. at pp. 301, 303 [159 L.Ed.2d at p. 412]; People v. Black (2007) 41 Cal.4th 799, 819.)
However, a criminal defendant may “consent to judicial factfinding.” (Blakely, supra, 542 U.S. at p. 310 [159 L.Ed.2d at p. 418].) In the present matter, defendant initialed and signed a plea form that contained the following statements: “I DO UNDERSTAND THAT THE MATTER OF PROBATION AND SENTENCE IS TO BE DETERMINED SOLELY BY THE SUPERIOR COURT JUDGE” and “(HARVEY WAIVER) I STIPULATE THE SENTENCING JUDGE MAY CONSIDER MY PRIOR CRIMINAL HISTORY AND THE ENTIRE FACTUAL BACKGROUND OF THE CASE, INCLUDING ANY UNFILED, DISMISSED OR STRICKEN CHARGES OR ALLEGATIONS OR CASES WHEN GRANTING PROBATION, ORDERING RESTITUTION OR IMPOSING SENTENCE.” We agree with the People that, by expressly agreeing that his sentence would be determined solely by the trial court and that the court could consider the entire factual background of his case when imposing sentence, defendant waived his right to have a jury decide the aggravating factors relied on by the court. (See People v. Munoz (2007) 155 Cal.App.4th 160, 167, 168 [aggravating factors that the crime involved great violence and the defendant had a history of violence were encompassed by statements on the plea form that sentencing would be decided solely by the judge, who could consider the entire factual background of the case].)
Accordingly, defendant is foreclosed from raising a Blakely challenge on appeal, as he waived any such challenge at the time he entered his plea.
II
Aggravating Factors
Defendant claims the trial court improperly relied on the victim’s vulnerability and the premeditation involved in the offenses to aggravate his sentence. Appellant acknowledges that his trial attorney’s failure to object to the trial court’s reliance on the aggravating factors in question forfeited the issue for purposes of appeal. (People v. Scott (1994) 9 Cal.4th 331, 348; People v. Steele (2000) 83 Cal.App.4th 212, 226.) Consequently, he argues his trial counsel rendered ineffective assistance by failing to object to the trial court’s consideration of these factors. His claim is without merit.
Defendant does not contend the trial court erred by finding that he took advantage of a position of trust in committing the offenses, and any argument to this effect would fail in light of defendant’s position as the boyfriend of the victim’s mother and his caretaking duties for the victim over a period of years. The trial court cited no mitigating factors, and we reject defendant’s contention that his “early acceptance of culpability” was a factor in mitigation, as the degree to which he minimized his wrongdoing eclipsed any possible mitigation based on this factor. Thus, even if defendant’s trial attorney had successfully objected to the other factors considered by the trial court, the aggravating circumstances would have outweighed the mitigating ones, mandating the imposition of an upper term.
In any event, the trial court properly considered the additional factors in aggravation. Defendant is correct that, in order for the vulnerability of the victim to be an aggravating factor, the victim must be vulnerable “‘to an extent greater than in other cases . . . .’” (People v. Clark (1990) 50 Cal.3d 583, 638, citing People v. Smith (1979) 94 Cal.App.3d 433, 436.) He is also correct “that aggravating a sentence due to ‘particular vulnerability,’ where vulnerability is based solely on age, is improper when age is an element of the offense.” (People v. Dancer (1996) 45 Cal.App.4th 1677, 1693-1694 (Dancer), overruled on another ground in People v. Hammon (1997) 15 Cal.4th 1117, 1123.)
However, a child molest victim’s particular vulnerability is adjudged “in light of the ‘total milieu in which the commission of the crime occurred’” (Dancer, supra, 45 Cal.App.4th at p. 1694) and may be found aggravating if there are other factors, such as supervision or control by the defendant, time and location of the offense or the extremely young age of the victim. (People v. Ginese (1981) 121 Cal.App.3d 468, 477.) Such was the case here. Defendant, while only five feet two inches, weighed 165 pounds, whereas the victim was four feet six inches and weighed 85 pounds when interviewed and presumably was considerably smaller when the molestations began six years earlier. While an age and size disparity are inherent in a child molest offense, here the disparity was particularly marked. Furthermore, defendant resided in the victim’s home, contributing to her vulnerability. Additionally, defendant threatened that he would hurt the victim’s mother if the victim disclosed his conduct. Under these circumstances, the trial court properly found the victim to be particularly vulnerable.
Regarding premeditation, it is true this factor “appl[ies] in every resident child molester case” and that “the facts [must] show[] premeditation in this case made the offenses worse than they ordinarily would have been.” (People v. Fernandez (1990) 226 Cal.App.3d 669, 680-681.) However, there was ample information before the trial court that defendant’s offenses evinced more premeditation than ordinarily required to commit child molestation: he repeatedly molested the victim over a period of many years; he waited to molest the victim until her mother was not home; he showed the victim pornographic movies; he offered to pay the victim and another child to induce them to engage in sexual acts; and, he kept condoms in his pocket and “‘used [them] all the time’” during the incidents. All of these circumstances support the conclusion that the premeditation involved in defendant’s offenses was greater than what is inherent in the crime of child molestation, making his offenses distinctively worse than the ordinary.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, J., NICHOLSON, J.