People v. Garcia CA3

Filed 2/24/16 P. v. Garcia CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Glenn) ----

THE PEOPLE, C077821

Plaintiff and Respondent, (Super. Ct. No. 13SCR07998)

v.

HILARIO CESAR GARCIA,

Defendant and Appellant.

In June 2014, defendant entered a no contest plea admitting one felony count of engaging in three or more acts of substantial sexual conduct with a child under the age of 14 years. (Pen. Code, § 288.5, subd. (a); unless otherwise set forth, statutory references that follow are to the Penal Code.) On appeal, defendant requests reversal of his sentence, claiming his due process rights were violated when, in reliance on a section 288.1 report with factual errors, the trial court refused probation and sentenced defendant

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to the upper term. Defendant also claims the trial court abused its discretion in imposing the upper term sentence, and requests remand. We disagree and affirm the judgment.

FACTS AND PROCEEDINGS

Defendant was charged by information with six counts of lewd acts upon a child under the age of 14 years (counts I, II, III, VI, VII and VIII; § 288, subd. (a)); sexual penetration against a child under the age of 14 years and more than 10 years younger than defendant (count IV; § 289, subd. (j)); and engaging in three or more acts of “substantial sexual conduct,” as defined in section 1203.066, subdivision (b), with a child under the age of 14 years who resides in the same home (count V; §§ 288.5, subd. (a), 1203.066, subds. (a)(8) & (b)). Counts I-VII related to child victim #1; count VIII related to child victim #2. Both alleged victims were defendant’s stepdaughters, and the events allegedly took place between January 1, 2011 and December 5, 2012. Defendant entered a no contest plea to count V, including the factual basis that he engaged in three or more acts of substantial sexual conduct as defined in section 1203.066, subdivision (b) with child victim No. 1. Per the parties’ agreement, the remaining charges were dismissed. Defendant waived his rights under People v. Harvey (1979) 25 Cal.3d 754, allowing the trial court to consider the dismissed counts for purposes of aggravation and restitution on sentencing. (People v. Beck (1993) 17 Cal.App.4th 209, 215.) There was no stipulated sentence, and defendant acknowledged the minimum and maximum sentences of six and 16 years, respectively, plus fines, penalties, and a registration requirement. Although it does not appear defendant was eligible for probation (§ 1203.066, subd. (a)(8)), the plea agreement provided that defendant was “[n]ot eligible for probation unless [he] receives a favorable 288.1 report.” The trial court ordered a section 288.1 report and a report from the probation department.