Filed 5/16/17 P. v. Stewart 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Butte)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

JUSTIN MICHAEL STEWART,

Defendant and Appellant.


C080173

(Super. Ct. No. CM042904)


In exchange for dismissing 24 counts, defendant pleaded no contest to four counts of incest. (Pen. Code, § 285.) The trial court imposed the upper prison term sentence on the principal count. On appeal, defendant first challenges the trial court’s reliance on several aggravating factors in imposing the upper term. He argues the victim was not particularly vulnerable, he did not take advantage of a position of trust, the crime did not involve planning, and he is not a danger to society.
He also contends the abstract of judgment must be corrected to reflect imposition of a one-third the middle term sentence for the subordinate terms. The trial court had imposed the upper term sentence for the subordinate terms but then stayed all but eight months, effectively leaving one-third the middle term for each subordinate term. The People concede error as to the second contention. We will modify the judgment to impose the proper sentence for the subordinate terms, order an amended abstract of judgment, and otherwise affirm.
BACKGROUND
The victim and defendant are half siblings, with the same mother. At the time, defendant was 29 years old and the victim was 16.
Defendant and the victim lived in different towns and had met only two or three times before they began texting each other. Defendant texted the victim that she had a “nice ass” and sent her a picture of his penis. She sent him an explicit picture of herself. Defendant also sent pictures of his penis to the victim’s 15-year-old sister.
For the upcoming birth of defendant’s son, the victim and her mother and stepfather travelled to Chico. The first night there, defendant took the victim to a store. In the store bathroom, he kissed her and rubbed her buttocks over her clothing.
The day defendant’s child was born, the victim was at the hospital with defendant and his girlfriend. When the girlfriend left the room to visit the baby in the nursery, defendant approached the victim, asked what she would do if he “pulled it out,” and “made her” perform oral sex on him. He then had sex with her. Defendant became frustrated when the victim kept moving away from him. The victim later told police, “it hurt really bad.”
When it was time for the victim, her mother, and stepfather to return to their town, defendant and the victim asked that the victim stay to help with the baby.
A week or two later, defendant came into the victim’s bedroom while she was asleep. He woke her and tried to remove her underwear. She got up and went to the bathroom. Defendant left the room and returned wearing a towel and a condom. He had sex with her.
Another time, defendant again came into her bedroom while the victim was asleep. He lifted the blanket to look at her breasts. When she grabbed the blanket to cover herself, defendant tried to pull the blanket away saying: “Let me see ‘em.” The victim refused and rolled onto her stomach.
Defendant would “often” come into her room while she was in bed and ask if she wanted to “do things.” She would refuse, and he would tickle her and try to force her legs open. The victim did not know how to tell him no and felt used by him. She was afraid of defendant, calling him, “hostile” and saying he would get in her face. During an argument, he pushed her shoulder and told her: “I wish I could throw you through the wall.”
During a recorded pretext phone call, defendant called the victim a “good kisser,” said he wanted to have sex with her again, and said if she visited that summer he would have sex with her. He also acknowledged having sex at the hospital and in his home.
After defendant was arrested, he denied anything had happened. But when confronted with the pretext call, he admitted making some of the statements, but denied touching the victim in a sexual manner. He admitted texting her a picture of a penis but maintained he had found it online, and it was not his.
He would later admit to the probation officer that they had sex about five times. He also claimed when he told the victim it would not continue, she told him she would get him in trouble if he was not going to be part of her life.
Defendant was charged with 28 counts arising from his conduct with the victim. He pleaded no contest to four counts of incest (§ 285), in exchange the remaining counts were dismissed. The trial court found defendant had violated two grants of probation.
The court imposed the upper term sentence of three years for count 21, the principal term. For the subordinate terms, the court also imposed the upper term sentence but stayed all but eight months of the term, to run consecutively — effectively leaving one-third the middle term of that count in place.
In imposing the upper term, the court found the circumstances in aggravation outweighed those in mitigation: “In aggravation, the victim in this case was particularly vulnerable, a 16 year old girl who had come to help out her mother and her mother’s family. The manner indicates planning. And whether or not there was planning, certainly the outside indication is that there was planning in this matter. The defendant took advantage of a position of trust. He engaged in conduct that indicates a serious danger to society. Prior convictions as an adult are numerous and increasingly serious . . . .”
The court added it could “identify no circumstances in mitigation.”
DISCUSSION
I
Imposition of the Upper Term Sentence
On appeal, defendant challenges the trial court’s reliance on several aggravating factors as an abuse of discretion. We discuss each contention in turn and conclude the trial court acted within its discretion.
We review a trial court’s decision to impose the upper term sentence for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) An upper term may be based on “any aggravating circumstance” the court deems significant or any other circumstance, even if not enumerated in California Rules of Court, rule 4.421, so long as it is “ ‘reasonably related to the decision being made.’ ” (Sandoval, at p. 848, quoting Cal. Rules of Court, rule 4.408(a).) A court abuses its discretion if it relies on circumstances not relevant to the decision or that “constitute an improper basis for decision.” (Sandoval, at p. 847.)
A challenge to the sentence must show the decision was irrational or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) Absent such a showing, “ ‘the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ ” (Id. at pp. 977-978.)
A.
The Victim Was Particularly Vulnerable
Defendant first challenges the trial court’s reliance on the victim’s vulnerability as an aggravating factor. He argues the victim was not more vulnerable than victims in similar cases. He reasons the victim was 16 and there was no charge of force or fear. We disagree.
“Particularly vulnerable” means “in a special or unusual degree, to an extent greater than in other cases, . . . defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant’s criminal act.” (People v. Smith (1979) 94 Cal.App.3d 433, 436.) Particularly vulnerable is assessed by the “total milieu” of the crime. (People v. Price (1984) 151 Cal.App.3d 803, 814.)
Here, the trial court did not err in relying on this factor. A 13-year-age disparity separated the victim and defendant. And the victim was away from her family, staying with defendant, and sleeping alone — such that defendant could enter her room at night.
B.
Defendant Took Advantage of a Position of Trust
Defendant next argues he never took advantage of a position of trust. He reasons he and the victim did not see each other as siblings; they barely knew each other, having met only two or three times prior. He also contends the trial court improperly considered both the victim’s vulnerability and his taking advantage of a position of trust as separate factors. We disagree.
First, the record demonstrates a position of trust. Defendant was the victim’s older half sibling. Even if they had rarely met, their familial relationship engendered trust, which enabled the victim to stay at defendant’s house, away from her family.
Second, given that multiple facts gave rise to both a particularly vulnerable victim and a position of trust, the trial court acted well within its discretion in identifying both aggravating factors in support of imposing the upper term.
C.
The Crimes Involve Planning
Defendant next argues there was no indication of planning other than bringing condoms — an act largely indistinguishable from other consensual sexual encounters. We disagree.
There is ample evidence of planning and premeditation. (See People v. Kozel (1982) 133 Cal.App.3d 507, 539 [“[p]lanning is indicative of premeditation”].) After the birth of his child, defendant, along with the victim, asked the victim’s family that she stay with him to help with the baby. He also repeatedly came to the victim’s bedroom late at night. And before the charged events, he sent her explicit text messages. All evince planning.
D.
Defendant Poses a Danger to Society
Defendant finally argues he did not present a danger to society. He reasons he took responsibility for his actions. He apologized profusely. His past crimes were mostly theft, along with numerous Vehicle Code violations. And his crime was not violent; the crime of incest requires only fornication and the requisite degrees of consanguinity. We disagree.
While defendant admitted some culpability, he continues to deny aspects of the allegations and to blame the victim, saying she threatened to get him in trouble if he would not be a part of her life. While his past crimes are less serious, his current offenses represent an increase in seriousness. Indeed, defendant also sent explicit photos to the victim’s 15-year-old sister.
And assuming arguendo defendant did not present a danger to society, the aggravating factors discussed above amply support imposition of the upper term sentence, even considering any mitigating factors. (See People v. Black (2007) 41 Cal.4th 799, 815 [the presence of one aggravating circumstance permits a trial court to impose an upper term]; People v. Lai (2006) 138 Cal.App.4th 1227,1258, quoting People v. Salazar (1983) 144 Cal.App.3d 799, 813 [the “trial court may ‘minimize or even entirely disregard mitigating factors without stating its reasons’ ”].) Accordingly, the trial court acted well within its discretion in imposing the upper term.
II
Abstract of Judgment
Defendant next contends the abstract of judgment must be amended to reflect imposition of one-third the middle term sentence for each of the subordinate terms. The People concede error, and we agree.
Unless an exception applies, when a trial court imposes consecutive term sentences, section 1170.1, subdivision (a), requires the court to impose one-third the middle term for each subordinate term.
Here, at sentencing, the trial court designated count 21 as the principal term and ordered the three subordinate terms (counts 22, 23, & 24) to run consecutively. The trial court imposed the upper term, not only for the principal term, but also for the subordinate terms. It then stayed all but 8 months of each subordinate term — effectively resulting in one-third the middle term sentence for each.
While the trial court ultimately arrived at the correct sentence, imposing upper term sentences for the subordinate terms was improper. We will therefore modify the judgment to impose a consecutive one-third of the middle term for each of the subordinate terms. We will also direct the trial court to prepare an amended abstract of judgment reflecting this modification. This modification will not affect the length of defendant’s sentence.
DISPOSITION
We modify the judgment to impose a sentence of one-third the middle term for each of the subordinate terms, counts 22, 23, and 24, to be served consecutively. The trial court is directed to prepare an amended abstract of judgment reflecting that change. The trial court is further directed to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.



/s/
HOCH, J.



We concur:



/s/
NICHOLSON, Acting P. J.



/s/
HULL, J.