People v. High CA3

Filed 2/26/16 P. v. High CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Tehama) ----

THE PEOPLE, C077943

Plaintiff and Respondent, (Super. Ct. No. NCR91194)

v.

BRANDON JAMES HIGH,

Defendant and Appellant.

Defendant Brandon James High entered a negotiated plea of no contest to rape where the victim was prevented from resisting by an intoxicating or anesthetic substance or a controlled substance (Pen. Code, § 261, subd. (a)(3); unless otherwise set forth, section references that follow are to the Penal Code; count I) in exchange for the dismissal of count II (sexual penetration with a foreign object where the victim is prevented from resisting by an intoxicating or anesthetic substance or a controlled substance; § 289, subd. (e)). The prosecutor also agreed to forgo arguing for a midterm

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or upper term sentence and to return defendant’s cell phone which had been seized pursuant to a search warrant. The trial court denied probation and sentenced defendant to state prison for the upper term of eight years. Defendant appeals. He contends the prosecutor violated the terms of the plea agreement by seeking the upper term and failing to return his cell phone. We conclude that defendant’s contentions have been forfeited. In any event, we reject defendant’s contentions on the merits.

FACTS AND PROCEEDINGS

After giving the victim a pill that caused her to lose consciousness, defendant penetrated his victim vaginally with his finger and his penis while video recording his sexual assault. The next day, defendant’s girlfriend found the video and called the police to report the assault of the victim.

DISCUSSION