P. v. Frescas















Filed 10/5/10 P. v. Frescas CA4/2











NOT TO BE PUBLISHED IN OFFICIAL REPORTS





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opinion has not been certified for publication or ordered published for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 >



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

THE PEOPLE, Plaintiff and Respondent, v. ROBERT RICHARD FRESCAS, Defendant and Appellant.

E049568 (Super.Ct.No. INF058038) >OPINION

APPEAL
from the Superior Court
of Riverside
County. Dale R. Wells,
Judge. Affirmed.

J.
Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund
G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Donald
W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.

A
jury found defendant and appellant Robert Richard Frescas guilty of aggravated
sexual assault of a child under 14 years of age and 10 or more years younger
than defendant (Pen. Code, §§ 269, subd. (a)(5), 289, subd. (a))^[1] (count 1) and attempted forcible sexual penetration (§§
664, 289, subd. (a)(1)), a lesser included offense of aggravated sexual assault
(§§ 269, subd. (a)(5), 289, subd. (a)) as alleged in count 2. Defendant was sentenced to a determinate
upper term of four years on count 2 and an indeterminate term of 15 years to
life on count 1 with credit for time served.
On appeal, defendant contends (1) the imposition of the upper term on
count 2 based on facts not found by a jury beyond a reasonable doubt violated
his Sixth Amendment right to a jury trial; and (2) the trial court improperly
relied on the victim's young age in imposing the upper term on count 2. We reject these contentions and affirm the
judgment.

I

FACTUAL
BACKGROUND^[2]

Defendant
is Jane Doe's great-uncle. When Jane was
nine years old, while she was staying at her grandmother's home, defendant
grabbed Jane by the wrist, put his hand underneath her nightgown, and inserted
his finger into her vagina. Jane created
a distraction and was able to escape defendant's grasp. After defendant followed Jane, he again put
his hand underneath her nightgown and tried to insert his finger into Jane's
vagina. However, he ceased when another
family member entered the room.

II

DISCUSSION

A. Imposition
of Upper Term in Violation of Constitutional Rights

Defendant
contends that the imposition of upper terms based on facts not found by a jury
beyond a reasonable doubt violated his Sixth
Amendment right to trial.

At
the October 30, 2009, sentencing hearing, the trial court imposed the upper
term of four years for the attempted forcible sexual penetration conviction
based on the following aggravating factors:
(1) the crime involved great violence, great bodily harm, threat of
great bodily harm, and other acts disclosing a high degree of cruelty,
viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1)); (2) the
victim was particularly vulnerable (Cal. Rules of Court, rule 4.421(a)(3))
â€