French

Defendant pleaded no contest to six counts of lewd and lascivious conduct with a child (Pen. Code, § 288, subd. (a)) pursuant to a plea agreement under which six additional counts alleging that offense, as well as a sentencing enhancement allegation (§ 667.61, subd. (b)), were dismissed. The trial court sentenced him to the upper term of eight years on one count and one-third the middle term on the other five counts, for a total sentence of 18 years, the maximum term available under the plea agreement. Defendant contends imposition of the upper term violated his Sixth Amendment right to a jury trial as established in Cunningham v. California (2007) 549 U.S. 270 [ 166 L.Ed.2d 856 , 127 S.Ct. 856 ] (Cunningham). We granted review to address issues involving the application of Cunningham to cases in which the defendant has pleaded guilty or no contest.

After defendant’s plea was entered, but before he was sentenced, the United States Supreme Court issued its decision in Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403 , 124 S.Ct. 2531 ] (Blakely), holding that a criminal defendant’s Sixth Amendment right to jury trial was violated in a case in which a Washington…