In People v. Benitez (2005) 127 Cal.App.4th 1274, the court rejected a similar argument made in the context of section 667.61, which allows the court to make a discretionary determination that a defendant is qualified for probation as an alternative to imposing a lengthy prison sentence. The court explained that "finding a defendant ineligible for probation is not a form of punishment, because probation itself is an act of clemency on the part of the trial court." Consequently, the determination "is not subject to the rule of Blakely v. Washington (2004) 542 U.S. 296." (Benitez, supra, at p. 1278.)