Filed 12/8/17 P. v. Mejia CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN MARIO CAMACHO MEJIA,

Defendant and Appellant.
H043976
(Monterey County
Super. Ct. No. SS151844A)
I. INTRODUCTION
Defendant Juan Mario Camacho Mejia pleaded no contest to lewd conduct upon a child under 14 (Pen. Code, § 288, subd. (a)). The trial court found defendant not suitable for probation and sentenced him to the middle term of six years in prison.
On appeal, defendant contends the trial court abused its discretion in denying probation because the court: (1) failed to consider rehabilitation feasibility and his amenability to undergoing treatment pursuant to section 1203.066, subdivision (d)(1), which sets forth certain findings and orders the court must make before probation may be granted in a lewd conduct case; (2) failed to consider rehabilitation feasibility and amenability to treatment pursuant to California Rules of Court, rule 4.414, which sets forth the criteria affecting the decision to grant probation generally; and (3) improperly found certain aggravating factors. Defendant contends that the court’s errors were prejudicial and that the matter should be remanded for resentencing.
For reasons that we will explain, we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
In late October 2015, the mother of the victim reported to the police that she and her four children had moved in with defendant, who was her boyfriend, about one month earlier. Defendant lived with his extended family, so mother and children all slept in defendant’s bedroom. After living with defendant for approximately one month, mother’s oldest daughter, Jane Doe 1, who was 10 years old, approached mother and began crying. Jane Doe 1 told mother to leave defendant because he had touched Jane Doe 1’s vagina about one week prior. Mother confronted defendant, who denied the claim.
When Jane Doe 1 was interviewed by the police, she explained that she was asleep on the floor when defendant, who had been drinking earlier that evening and was intoxicated, walked into the room and put his hand into her pajama pants and underneath her panties. As she awoke, he inserted his “ ‘pointer’ ” finger into her vagina. Jane Doe 1 tried to kick defendant but he ran out of the bedroom.
Jane Doe 1 told the police that about five days later, defendant touched her again on her vagina while she was getting her backpack from his van. She reported that defendant had followed her to the van. He put one hand over her clothing and onto her vagina, and he used his other hand to grab her and to try to pull down her pants. She jumped out of the van. Jane Doe 1 said that defendant never threatened her, but she did not say anything because she was too afraid.
Jane Doe 1 also reported to the police that defendant had touched her five-year-old sister, Jane Doe 2, on the vagina. According to Jane Doe 1, a few days after they had moved in with defendant, they were all lying down together when defendant reached over their mother, who was awake, and put his hand on her sister’s crotch area.
Jane Doe 1 stated that when she reported defendant’s conduct to her mother, he denied everything, called her “ ‘crazy,’ ” and claimed that she made up everything.
Jane Doe 2 told the police, while pointing at her vagina, that defendant had touched her over her clothing at his house.
Defendant was interviewed by the police. After being advised of his Miranda rights, defendant denied that he inappropriately touched either girl. He claimed that Jane Doe 1 did not like him and that she had threatened to make up a story about him touching her.
Jane Doe 1 and her sister participated in a forensic interview a few days later. Their statements were consistent with their earlier report to the police, except that Jane Doe 1 said that defendant had put his hand inside her sister’s pants when he touched her.
A. The Charges and Plea
In January 2016, defendant was charged by information with oral copulation or sexual penetration of a child aged 10 or younger on or about October 14, 2015 (§ 288.7, subd. (b); count 1), and three counts of lewd conduct upon a child under 14 (§ 288, subd. (a); counts 2-4) on or about October 14, 19, and 1, 2015. The information further alleged that defendant committed sexual offenses against more than one victim within the meaning of section 667.61. The alleged victim of counts 1 through 3 was Jane Doe 1, and the alleged victim of count 4 was Jane Doe 2.
In July 2016, defendant pleaded no contest to count 2, lewd conduct upon a child under 14 (§ 288, subd. (a)), involving the older sister Jane Doe 1, with the understanding that he would receive a sentence ranging from felony probation to six years in prison. Defendant agreed that the factual basis for the plea was that on October 14, 2015, he committed “a lewd act upon Jane Doe.” Defendant also agreed that the trial court could consider any dismissed charges or allegations for purposes of a no-contact order as to Jane Doe 2. The court referred the matter for preparation of a probation report and a section 288.1 report. Based on his no contest plea, defendant was found in violation of probation in another case.
B. The Section 288.1 Report
The court-appointed psychologist filed a report in July 2016. The report was based on the psychologist’s evaluation of defendant at the jail, as well as documents the psychologist received regarding defendant’s arrest and charges.
The psychologist summarized defendant’s history, which was based solely on information provided by defendant during the evaluation. Defendant, who was 42 years old, was born in Salinas but lived in Mexico as a child for several years after his father passed away. Defendant had five older siblings and his mother never remarried. Defendant relocated to the Salinas area and dropped out of school during the ninth grade to work to support the family. He denied any prior mental health history, denied any current emotional disturbance, and denied any substance use other than the social use of alcohol.
Defendant acknowledged a prior DUI arrest and a prior domestic violence conviction involving his wife approximately 12 years ago, but otherwise denied any prior criminal history. Defendant admitted to engaging in verbal arguments with his wife but “minimized the incident that led to his arrest six years into their marriage.” Defendant left after six more years with his wife because he was afraid she would make another allegation against him because they were arguing so much. They had two grown children with whom defendant remained in contact. Defendant later lived with a woman and her young son and daughter for almost three years. He indicated that no sexual abuse allegations were made against him by any child in either of these relationships.
Defendant was living with his mother and a cousin when he met the mother of the victims. Defendant allowed her, her two sons, and her two daughters to move in because she was going to lose her hotel room. They all lived together for a few weeks before the allegations against him were raised.
Defendant “was firm in stating that he never fondled either victim.” He believed the victims were upset about his relationship with their mother and having to live with him. Defendant told the psychologist that he accepted the plea agreement, which included lifetime registration, because he did not want to risk a longer period of incarceration if he lost at trial. Defendant indicated that he would not have any contact with the victims. The psychologist reported that defendant did not appear to be harboring any anger or bitterness toward them or their mother.
Defendant did not know that treatment might be required, or what it might entail, but he expressed a willingness to cooperate. He did not believe there was anything to treat because he did not commit the offense. Defendant agreed, however, to attend and participate fully if asked to do so, and he “appeare[d] to understand that even the didactic portions of his treatment could be of benefit to him.”
Regarding diagnostic considerations, the psychologist determined that defendant did not qualify for a diagnosis of pedophilic disorder. In this regard, the psychologist explained that there was no evidence defendant had behaved in a sexual manner with children before the instant case, and he denied any deviant sexual interest in children or the use of child pornography. The psychologist also determined that, although defendant had been arrested for DUI and domestic violence in the past, there was no current evidence of a substance use disorder, mood or psychotic disorder, or personality disorder.
Regarding risk assessment, the psychologist determined that defendant had a score of 1 on the Static-99R, which placed defendant in the “Low Risk Category” for being charged or convicted of another sex offense. The psychologist also determined that defendant could properly be compared to a routine normative sample of sexual offenders whose risk (with the same score as defendant) of re-offense over five years was 3.9 percent.
The psychologist stated that defendant “does have family support at this time and he does not have any recent criminal history or prior exposure to probation supervision that is known to have been problematic. It is reasonably likely that he would comply with probation supervision, particularly given his clear understanding (which was given spontaneously by the defendant) of the various probation terms he would need to abide by.”
The psychologist offered opinions based on the criteria set forth in section 1203.066. Regarding whether a grant of probation was in the best interest of the child and whether defendant was removed from the household of the victim, the psychologist determined that these criteria were moot or not applicable, because the victim was not a family member or a dependent of defendant, and the victim and her family had since moved out of the residence.
Regarding whether rehabilitation of defendant was feasible and whether he was amenable to undergoing treatment, the psychologist observed that defendant indicated a willingness to attend and participate in sex offender specific services. Although he did not admit to the offense, the psychologist stated that “there is a strong didactic portion to cognitive-behavioral sex offender programs, which can be of benefit to him even if he does not make any personal disclosures about sexual molests or attraction to children.” The psychologist determined that there was nothing to suggest that defendant had any mental disorder or condition that would impede his participation in treatment and it was “anticipated that he would do reasonably well in a community based program if given the proper supervision and support.”
Regarding the threat of physical harm to the child victim if probation was granted, the psychologist reiterated that defendant did not currently have a diagnosed mental disorder that would predispose him to commit sexual assault, and there was no evidence to suggest he would be a specific threat to this victim. He had a low risk for re-offense, there was no indication that he was focused on the victim in any way, and he understood that he could not have any contact with the victim.
The psychologist believed that defendant was “suitable for a grant of probation, even though he is firm in denying that he in fact committed the offense.” The psychologist explained that defendant was at low risk for re-offense. The psychologist stated that “[i]t is . . . anticipated that he could be provided community based care and supervision in a safe as well as effective manner, particularly given that he will be required to register and will be monitored via probation for several years.”
C. The Probation Report
The probation report indicated that a “Harvey Waiver was entered for the purposes of [n]o [c]ontact with” Jane Doe 2.
The probation report also listed defendant’s prior record, which consisted of six misdemeanor convictions: in 1993, vandalism (former § 594, subd. (b)(4)); in 1998, inflicting corporal injury (§ 273.5, subd. (a)); in 2008, driving with a suspended or revoked license due to a prior driving under the influence conviction, and driving with a blood alcohol level of 0.08 percent or more (Veh. Code, §§ 14601.2, subd. (a), 23152, subd. (b)); and in 2011, battery against a person with whom the defendant has, or previously had, a dating relationship, and resisting an officer (§§ 243, subd. (e), 148, subd. (a)(1)). Defendant was granted probation in each case. In three of the five cases, defendant violated probation one or more times. Regarding the most recent case from 2011, defendant was still on probation and a bench warrant had been issued for his failure to attend domestic violence classes.
Regarding defendant’s risk of re-offense, the probation officer assessed defendant as having a score of 2 on the Static-99R, which placed defendant in the “Low-Moderate Category” for being charged or convicted of another sexual offense. The probation officer indicated that offenders with this score have a predicted recidivism rate of 5.6 percent within the first years of release. The probation officer explained that defendant had been assessed with a lower Static-99R score by the psychologist because defendant had reported to the psychologist that he had only two prior criminal convictions when he actually had at least five prior convictions.
According to the probation report, defendant believed the charges against him were “ ‘unjust’ ” because he did not do anything. However, defendant believed proceeding to trial was too risky and he was “comfortable” with being placed on probation.
Although the psychologist found defendant suitable for probation, the probation officer recommended that defendant be sentenced to prison. The probation officer referred to defendant’s “brazen and highly inappropriate behavior toward two very young girls” as justifying a prison sentence. The probation officer stated that defendant engaged in “calculated steps” for “his own sexual satisfaction,” and that he allowed his sexual impulse to override any good judgment, which was also clouded by alcohol over-consumption. Further, defendant, who was the subject of multiple warrants and violations of probation, had performed poorly on the earlier grants of probation. For example, following defendant’s 1998 inflicting corporal injury conviction, he accrued five violations of probation over a seven-year period before probation was terminated. Defendant was also appearing for sentencing for a violation of probation in the 2011 battery case, in which he had yet to complete a domestic violence program five years later. The probation report stated that defendant was a “questionable candidate” for probation and for a sex offender treatment program, in view of his adamant statement that the victim made up her story to get defendant out of her life.
The probation report listed the following factors in aggravation relating to the crime: (1) the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness because defendant initiated the offense against Jane Doe 1 while she was asleep and she was of a young age; (2) the victim was particularly vulnerable because she was a sleeping child when defendant began to touch her; (3) the manner in which the crime was carried out indicates planning, sophistication, or professionalism because defendant perpetrated the crime when the victim and her siblings were all asleep and defenseless; and (4) defendant took advantage of a position of trust or confidence to commit the offense as he was involved in a romantic relationship with the victim’s mother and was responsible for protecting Jane Doe 1 instead of harming her. (See rule 4.421(a)(1), (3), (8) & (11).) The probation report also listed the following factors in aggravation relating to defendant: (1) defendant had engaged in violent conduct that indicated a serious danger to society based on his behavior in the instant offense, which involved children; (2) defendant’s behavior in the instant offense reflected an increase in seriousness compared to his prior convictions; (3) defendant was on probation when the crime was committed; and (4) defendant’s prior performance on probation was unsatisfactory, as he had several probation violations and he was the subject of a warrant in the 2011 case at the time of his arrest. (See rule 4.421(b)(1), (2), (4) & (5)). The probation report listed no circumstance in mitigation.
D. The Sentencing
At the sentencing hearing on September 20, 2016, the trial court indicated that it had received the probation report and the psychologist’s section 288.1 report.
The prosecutor advocated for imposition of the middle term of six years in prison “due to the two victims,” defendant’s criminal history, and his lack of compliance with prior grants of probation. The prosecutor contended that there were two child victims, one of whom was penetrated by defendant, that defendant committed “these offenses” within the 30-day period that he had access to them, and that the victims had been consistent in their statements to law enforcement. The prosecutor argued that the psychologist had “treat[ed] [defendant’s] plea as if they’re allegations” and had determined that he was not a risk to reoffend. The prosecutor believed, however, that these two points were “contrary to one another” because defendant was “in complete denial.”
Defense counsel advocated for a grant of probation. Defense counsel contended that the trial court could only consider Jane Doe 1 as a victim because “there was a Harvey waiver on Jane Doe 2 only as to a no contact order.” Defense counsel also argued that the factors in aggravation only apply when the crime is “significantly different than a normal crime of the same [P]enal [C]ode” section. According to defense counsel, none of the aggravating factors relating to the crime that were identified in the probation report applied in this case. Specifically, defense counsel contended that there was nothing about the conduct in the case that made it any more dangerous, any more cruel, or any more callous than a section 288 offense itself; the fact that the victim was a sleeping child was not unusual for a section 288 offense and thus she was not particularly vulnerable; the fact that the victim was asleep at the time of the offense did not show planning or sophistication by defendant and instead showed that he took advantage of a situation that presented itself; and it was not unusual in a section 288 case for the perpetrator to be in a position of trust. Regarding aggravating factors relating to defendant, defense counsel contended that one of the factors identified in the probation report—that the offense involved children and therefore defendant had engaged in violent conduct indicating a serious danger to society—was a fact involved in every section 288, subdivision (a) offense.
Defense counsel also observed that, although there was a one-point difference in defendant’s score on the Static-99R between the probation department and the psychologist, even the probation department assessed defendant on the “low moderate level.” Thus, there was agreement that a “low recidivism rate” applied to defendant.
Defense counsel further argued that, although defendant “does not feel that he did these crimes, he feels that he can learn something from the classes and learn something from himself.” Counsel further argued that defendant had accepted responsibility and accepted punishment by pleading to the offense, and that he was not required to further express responsibility verbally or in writing for what he had done.
Defense counsel also contended that “for a life case to be pled down to something that there is a six-year top, that should indicate to the Court that there was something that was odd with this case.” Defense counsel disagreed with the assertion that the victims’ statements were consistent, and contended that the lack of consistency was “why we got to a range of probation to a mid term of six years.”
Defense counsel requested that defendant be placed on probation based on his “lack of criminal conduct in the past,” his agreement to go into treatment, and the psychologist’s report. To the extent the court was inclined to impose a prison term, defense counsel requested the lower term of three years.
The trial court stated that it had considered “all of the documents,” including the psychologist’s report and the probation report. The court stated it was “getting almost a mixed message” from the psychologist. The psychologist had indicated that a mental disorder would dispose defendant to continue his conduct, but that defendant did not have a mental disorder. The court believed, however, that there was “some continuing risk,” and the court was particularly concerned about defendant’s “lack of awareness of his responsibility.”
The trial court concluded that defendant was not suitable for probation. The court stated that “[t]he type of conduct involved here with such young children is of great concern.” The court proceeded to identify factors in aggravation, finding as follows: “[t]he crime involved a high degree of cruelty, viciousness, or callousness as the defendant first perpetrated on the young victim while she was asleep, coupled with her youthfulness” (see rule 4.421(a)(1)); “the victim being asleep is something that is a factor in aggravation” and “[s]he was particularly vulnerable as a sleeping child” (see rule 4.421(a)(3)); “the crime does indicate planning or sophistication in that the defendant was in a relationship where he was . . . setting up a situation to be able to take advantage of these two children—this child” (see rule 4.421(a)(8)); “[t]he manner in which the crime was conducted indicates that the defendant . . . did have a position of trust or confidence, not only with the children, but also with the mother” (see rule 4.421(a)(11)); “[h]is behavior in the instant offense indicates he has an increase in criminal severity when compared to prior convictions” (see rule 4.421(b)(2)); “[h]e was on probation at the time” (see rule 4.421(b)(4)); and “[h]is prior performance on probation was unsatisfactory” (see rule 4.421(b)(5)). The court disagreed with the probation report that defendant engaged in violent conduct that indicated a serious danger to society based on an offense involving children (see rule 4.421(b)(1)). The court found that defendant’s no contest plea was a factor in mitigation, although the plea took “a significant amount of time” before defendant entered it (see rule 4.423(b)(3)).
The trial court imposed the middle term of six years in prison, finding that “[o]n balance . . . the middle term would be appropriate.” The remaining counts, enhancements, and allegations were dismissed or stricken. The court executed a criminal protective order regarding Jane Doe 1 and Jane Doe 2. The court revoked and terminated probation in defendant’s 2011 misdemeanor case involving battery and resisting an officer, and imposed a concurrent jail sentence with credit for time served.
III. DISCUSSION
Defendant contends the trial court abused its discretion in denying probation because it (1) failed to consider rehabilitation feasibility and his amenability to undergoing treatment pursuant to section 1203.066, subdivision (d)(1), which sets forth certain findings and orders the court must make before probation may be granted in a lewd conduct case; (2) failed to consider rehabilitation feasibility and amenability to treatment pursuant to rule 4.414, which sets forth the criteria affecting the decision to grant probation generally; and (3) improperly found four of the aggravating factors. Defendant contends that the court’s errors were prejudicial and that the matter should be remanded for resentencing.
We first set forth general legal principles concerning the decision to grant or deny probation before considering the substance of defendant’s contentions.
A. General Legal Principles
1. Suitability for probation in general
Rule 4.414 sets forth the criteria for a trial court to use in deciding whether to grant probation. Facts relating to the crime include: (1) the nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; (2) the vulnerability of the victim; (3) whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant, and (4) whether the defendant took advantage of a position of trust or confidence to commit the crime. (Rule 4.414(a)(1), (3), (8) & (9).) Factors relating to the defendant include: (1) prior record of criminal conduct and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct, (2) prior performance and present status on probation, (3) willingness to comply with the terms of probation; (4) ability to comply with reasonable terms of probation as indicated by the defendant’s age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors, (5) whether the defendant is remorseful, and (6) the likelihood that if not imprisoned the defendant will be a danger to others. (Rule 4.414(b)(1), (2), (3), (4), (7) & (8).) These criteria are not exclusive and the court may apply “additional criteria reasonably related to the decision being made.” (Rule 4.408(a); People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1227 (Dorsey).)
2. Probation in lewd conduct cases
If a defendant is convicted of a violation of section 288, the trial court may not grant probation unless certain terms and conditions set forth in section 1203.066, subdivision (d)(1) are met, including: “The court finds that rehabilitation of the defendant is feasible and that the defendant is amenable to undergoing treatment.” (§ 1203.066, subd. (d)(1)(B), italics added.)
If a defendant is convicted of committing lewd conduct upon a child under the age of 14, the trial court may not suspend the defendant’s sentence until the court obtains a report from a psychiatrist or psychologist regarding the mental condition of the defendant. (§ 288.1; see also § 1203.067, subd. (a)(1).) The report must include a consideration of the factors set forth in section 1203.066. (See §§ 1203.066, subd. (d)(3), 1203.067, subd. (a)(3).) Because the report must address the defendant’s mental condition in relation to suitability for probation, the psychiatrist or psychologist and the court may consider dismissed counts. (People v. Lamb (1999) 76 Cal.App.4th 664, 672-674; People v. Franco (1986) 181 Cal.App.3d 342, 350 [“an accurate and comprehensive evaluation of a defendant’s mental condition” requires the psychiatrist and the court to “consider the totality of a defendant’s behavior and course of conduct” and not just the facts surrounding the admitted offense].)
The court must state its reasons on the record for whatever sentence it imposes on the defendant. (§ 1203.066, subd. (d)(2).)
3. Standard of review
“ ‘Probation is an act of clemency which rests within the discretion of the trial court, whose order granting or denying probation will not be disturbed on appeal unless there has been an abuse of discretion.’ [Citation.]” (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) “ ‘Abuse of discretion,’ in turn, depends on whether the trial court’s order ‘ “exceeds the bounds of reason.” ’ [Citation.] Obviously, a decision which simply ignores statutory requirements constitutes an abuse of discretion.” (Dorsey, supra, 50 Cal.App.4th at p. 1225.)
“In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of 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.” ’ [Citations.] Second, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
B. Failure to Consider Rehabilitation Feasibility and Amenability to Undergoing Treatment Under Section 1203.066, Subdivision (d)(1)
Defendant contends that the trial court abused its discretion in denying probation by failing to consider the criteria set forth in section 1203.066, subdivision (d)(1). According to defendant, the psychologist considered the criteria under section 1203.066, subdivision (d)(1) and concluded that rehabilitation was feasible, that defendant was amendable to undergoing treatment, and that it was anticipated he would do reasonably well in a community based program if give the proper supervision and support. Defendant argues that the court in denying probation did not consider whether rehabilitation was feasible and whether he was amenable to undertaking treatment.
The Attorney General contends that the factors set forth in section 1203.066, subdivision (d)(1) do not replace the criteria set forth in the California Rules of Court affecting the decision to grant or deny probation. Rather, the factors in section 1203.066, subdivision (d)(1) are in addition to the factors set forth in the California Rules of Court. The Attorney General argues that the trial court applied the proper standard, including by considering the feasibility of rehabilitation and defendant’s amenability to treatment, and that no abuse of discretion has been shown by the court’s denial of probation.
The psychologist’s report, which was approximately seven and one-half pages, devoted approximately one whole page to “opinions . . . pursuant to California Penal Code Section 1203.066,” including consideration of whether rehabilitation was feasible and whether defendant was amenable to undergoing treatment. Among other conclusions, the psychologist stated that defendant indicated a willingness to participate in sex offender specific services, that he could benefit from the programs even though he did not admit to the offense, that he did not appear to have a mental disorder or condition that would impede his participation in treatment, and that it was anticipated that he would do “reasonably well” in a community based program if give the proper supervision in support.
In contrast, the probation report found that defendant was “a questionable candidate for a grant of probation” and questioned defendant’s “ability to benefit from a sex offender treatment program,” where defendant had performed poorly on earlier grants of probation, he told the police that the victim made up a story to get him out of her life, and he “remain[ed] adamant with this statement.”
At sentencing, the trial court expressly stated that it had considered the psychologist’s report, as well as the probation report, in finding that defendant was not suitable for probation. Among other matters, the court expressed “concern” about defendant’s “lack of awareness of his responsibility.” In addition, in finding factors in aggravation, the court referred to the fact that defendant’s behavior in the instant offense reflected an increase in seriousness when compared to his prior convictions, that he was on probation at the time of his offense, and that his prior performance on probation was unsatisfactory, among other factors in denying probation.
On appeal, defendant acknowledges that the probation officer and the trial court expressed skepticism about his ability to be treated. According to defendant, however, “neither the probation officer nor the court addressed the ability of treatment in a community based program with proper supervision and support to enable defendant to achieve success in rehabilitation. This is a key lapse in the court’s analysis which led to the denial of probation and the denial of a long-term solution to achieve public safety.”
As we have just set forth, however, the trial court expressly referred to defendant’s prior poor performance on probation, the fact that he was on probation at the time of the instant offense, and the increase in seriousness of his criminal conduct. Given these express findings, the court must have determined, and reasonably so, that rehabilitation while on probation was not feasible and that defendant was not amenable to undergoing treatment while on probation. In view of the record, we are not persuaded by defendant’s argument that the trial court failed to consider the feasibility of rehabilitation and whether he was amenable to undergoing treatment (§ 1203.066, subdivision (d)(1)(B)) when the court denied probation.
C. Failure to Consider Rehabilitation Feasibility and Amenability to Undergoing Treatment Under Rule 4.414
Defendant also contends that, based on the psychologist’s report, his “[r]ehabilitation feasibility” and “amenability to treatment leading to rehabilitation” should have been treated as mitigating factors by the trial court, and that the court’s failure to do so warrants remand. Defendant relies on rule 4.414, which includes as criteria affecting the decision to grant probation: (1) the defendant’s willingness to comply with the terms of probation; and (2) the defendant’s ability to comply with reasonable terms of probation as indicated by the defendant’s age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors. (Rule 4.414(b)(3) & (4).)
The record does not support defendant’s contention that the trial court failed to consider relevant mitigating factors. The trial court determined that defendant’s plea was one factor in mitigation although the probation report found none. Moreover, defendant acknowledges that the trial court expressed skepticism about his ability to be treated. As we have explained, the trial court also expressly referred to defendant’s prior poor performance on probation, the fact that he was on probation at the time of the instant offense, and the increase in seriousness of his criminal conduct. Based on these express findings, along with the court’s expressed skepticism regarding defendant’s ability to be treated, the court necessarily must have determined that rehabilitation while on probation was not feasible, that defendant was not amenable to undergoing treatment while on probation, and that the rule 4.414(b)(3) and (4) criteria (willingness to comply and ability to comply with probation terms) did not support a grant of probation. Indeed, defendant acknowledges in his reply brief that “the court gave little weight [to his] statement . . . he was willing to undergo treatment and a lifetime of registration and supervision under probation.” Defendant fails to demonstrate that the trial court failed to properly consider relevant mitigating factors.
In his reply brief on appeal, defendant contends that it was improper for the trial court to deny probation “because [he] did not admit guilt.” Defendant argues that the “failure to confess” may not be used “as evidence of a lack of remorse or responsibility.”
The trial court, however, did not rely on a “failure to confess” by defendant as a basis for denying probation. Defendant pleaded no contest and agreed as a factual basis for the plea that he committed “a lewd act upon Jane Doe.” The court found defendant’s no contest plea was a mitigating factor in determining the length of his sentence. The court instead referred to defendant’s “lack of awareness of his responsibility” for the offense, which the court could properly consider in determining whether defendant was amenable to treatment, whether rehabilitation was feasible, and whether defendant was otherwise suitable for probation.
In support of his argument that the “failure to confess” may not be used as evidence of a lack of remorse or responsibility, defendant cites People v. Coleman (1969) 71 Cal.2d 1159 (Coleman). In Coleman, a jury found the defendant guilty of first degree murder. (Id. at p. 1161.) On appeal, the defendant “contend[ed] that at the trial on the issue of penalty, the prosecuting attorney committed misconduct by arguing that defendant’s refusal to admit his guilt demonstrated his lack of remorse.” (Id. at p. 1168.) The court in Coleman held that a “jury may properly consider the defendant’s remorse or lack thereof in fixing the penalty. Evidence on that issue is therefore admissible, and counsel may comment thereon. [Citations.]” (Ibid.) The court also held, however, that not every inference bearing on the question of remorse may be argued to the jury. (Ibid.) “The court in Coleman reasoned that because a defendant is under no obligation following a guilty verdict to confess to the crime, and is permitted to assert his possible innocence as a factor mitigating the penalty, it is fundamentally unfair for a prosecutor to argue that the defendant’s failure to confess after a guilty verdict shows a lack of remorse. (Coleman, supra, 71 Cal.2d at p. 1168.)” (People v. Frye (1998) 18 Cal.4th 894, 1019-1020.) The court in Coleman further reasoned that a defendant would be placed in an “intolerable dilemma,” because “a defendant who had denied his guilt at the trial on the issue of guilt would have to admit or commit perjury at the trial on the issue of penalty, and he could do neither without in effect forfeiting his right to urge the trial court on motion for new trial to reweigh the evidence on the issue of guilt.” (Coleman, supra, at pp. 1168-1169.) The court concluded that “any argument that failure to confess should be deemed evidence of lack of remorse is not permissible.” (Id. at p. 1169.)
In this case, defendant fails to show a similar “intolerable dilemma.” (Coleman, supra, 71 Cal.2d at p. 1168.) Defendant voluntarily entered a no contest plea pursuant to a plea agreement and agreed as a factual basis for the plea that he committed “a lewd act upon Jane Doe.” The court was entitled to consider defendant’s “lack of awareness of his responsibility” in this context. In addition, in his written waiver and plea agreement, defendant “agree[d] not to ask the court to withdraw [his] plea for any reason after it is entered.” The waiver and plea agreement thus precluded defendant from asking the trial court “to reweigh the evidence on the issue of guilt.” (Id. at pp. 1168-1169.) In sum, defendant fails to articulate any unfairness similar to that found in Coleman, which would preclude the trial court at sentencing from considering his lack of awareness of his responsibility.
D. Improper Finding of Aggravating Factors
Defendant contends that the trial court improperly found the following four aggravating factors: the victim was particularly vulnerable (rule 4.421(a)(3)), the manner in which the crime was carried out indicated planning or sophistication (rule 4.421(a)(8)), the defendant took advantage of a position of trust or confidence to commit the offense (rule 4.421(a)(11)), and the crime involved acts disclosing a high degree of cruelty, viciousness, or callousness (rule 4.421(a)(1)). He argues that the factors were without factual support or otherwise did not apply.
Rule 4.414 sets forth the factors that guide a sentencing court’s decision whether to grant probation, while rules 4.421 and 4.423 sets forth the aggravating and mitigating circumstances that guide a sentencing court’s decision to select the upper, middle, or lower term for an offense. In this case, the probation report addressed whether there were aggravating and mitigating circumstances under the latter two rules without expressly discussing the criteria affecting probation under rule 4.414. The trial court generally followed the probation report in this regard. Generally, the same fact may be used to deny probation and to select a greater term of imprisonment. (People v. Black (2007) 41 Cal.4th 799, 817 (Black); People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12; People v. Bowen (1992) 11 Cal.App.4th 102, 106.) We therefore consider whether the court properly found certain facts to be aggravating circumstances, which would also support the denial of probation.
1. Vulnerable victim
Defendant contends that the trial court erred by finding that the victim was vulnerable as a sleeping child. (See rules 4.414(a)(3) & 4.421(a)(3).) Defendant argues that the victim must be vulnerable to an extent greater than in other cases, that a section 288, subdivision (a) offense already provides for increased punishment based on the victim’s age, and that something more must be shown than the child victim engaging in everyday activities.
Regardless of whether the victim is an adult or a child, a victim is particularly vulnerable when a crime is committed against the victim while he or she is asleep. (People v. Loudermilk (1987) 195 Cal.App.3d 996, 1007 [victim was particularly vulnerable when multiple shots were fired at him while he was sleeping]; People v. Smith (1979) 94 Cal.App.3d 433, 435-436 [victims were particularly vulnerable as they were sleeping when defendant and another person climbed on top of them and robbed them].) The trial court therefore did not err in finding the victim vulnerable, regardless of her age, based on the fact that she was sleeping when defendant initiated or committed the lewd conduct.
Defendant contends that the victim in this case had her entire family in the same bedroom with her, and that she could have called out for help. Defendant does not provide a record citation supporting the assertion that one or more members of the victim’s family were in the bedroom at the time of the offense. Even if other family members were present and presumably sleeping, defendant fails to persuasively articulate why this circumstance would have made the sleeping victim less vulnerable to defendant’s offense. The record reflects that the victim, upon awakening, tried to fight back by kicking defendant, but he had already committed the offense. We determine that the trial court did not err by finding vulnerability based on the victim sleeping when the offense was initiated or committed.
2. Planning or sophistication
Defendant contends that the trial court erred in determining that the offense involved planning or sophistication (see rules 4.414(a)(8) & 4.421(a)(8)), based on the court’s finding that “defendant was in a relationship where he was . . . setting up a situation to be able to take advantage of . . . this child.” Defendant argues that there was no evidence that he had control over the circumstances, or that he chose the sleeping arrangement.
Defendant indicated to the psychologist that he allowed the victim’s mother, the victim, and the victim’s three siblings to move in with him. According to the probation report, the victim’s mother was in a relationship with defendant and the victim and her family all slept together in defendant’s bedroom. The allegations against defendant arose approximately one month later. The trial court could reasonably infer that defendant had control over the victim sleeping in his house and in his bedroom, and that he exploited a situation that he had created. Defendant fails to demonstrate error in the court’s finding of planning or sophistication.
3. Position of trust or confidence
Defendant contends that the trial court erred by finding as an aggravating circumstance that he took advantage of a position of trust or confidence to commit the offense. (See rules 4.414(a)(9) & 4.421(a)(11)). The court found that “[t]he manner in which the crime was conducted indicates that the defendant . . . did have a position of trust or confidence, not only with the children, but also with the mother.” Defendant argues that some factor, such as trust or confidence, must be present for a lewd or lascivious touching to occur without force, and therefore the presence of trust or confidence does not make his offense distinctively worse than the ordinary section 288, subdivision (a) offense.
“A fact that is an element of the crime upon which punishment is being imposed may not be used to impose a greater term.” (Rule 4.420(d).) An aggravating circumstance is a fact that makes the offense “ ‘distinctively worse than the ordinary.’ ” (Black, supra, 41 Cal.4th at p. 817.)
Trust or confidence is not an element of a section 288, subdivision (a) offense. Taking advantage of a position of trust or confidence in relation to a child, such as parenthood, may be an aggravated circumstance for a section 288, subdivision (a) offense. (People v. Tompkins (2010) 185 Cal.App.4th 1253, 1256, 1266, 1267; see People v. Garcia (1983) 147 Cal.App.3d 1103, 1105 [the “defendant offers no authority to support his underlying assertion that violators of section 288 are almost always parents or custodians of the victims involved,” and a “brief review of the reported decisions reveals countless cases involving violations of section 288 wherein the defendants did not have such a relationship with the victims”].)
Defendant was the boyfriend of the victim’s mother, and the victim and her family lived at his residence and slept in his bedroom. Defendant fails to demonstrate error by the court’s finding of an aggravated circumstance based on defendant taking advantage of a position of trust or confidence.
4. Cruelty, viciousness, or callousness
Defendant contends that the trial court erred by finding that the crime involved a high degree of cruelty, viciousness, or callousness (rule 4.421(a)(1); see rule 4.414 (a)(1)) because he “first perpetrated on the young victim while she was asleep, coupled with her youthfulness.” Defendant argues that there was no evidence that his offense was more cruel, violent, or callous than an “ordinary” violation of section 288, subdivision (a). He also argues that the court’s reliance on the youthfulness of the victim was improper because a victim who is under the age of 14 is an element of the offense.
As we have stated above, “[a] fact that is an element of the crime upon which punishment is being imposed may not be used to impose a greater term.” (Rule 4.420(d).) An aggravating circumstance is a fact that makes the offense “ ‘distinctively worse than the ordinary.’ ” (Black, supra, 41 Cal.4th at p. 817.) Thus, where an age range factor is an element of the offense, age is generally not a proper aggravating factor. (People v. Fernandez (1990) 226 Cal.App.3d 669, 680; People v. Garcia (1985) 166 Cal.App.3d 1056, 1069 (Garcia).) However, “a minor under the age of 14 may be determined to be particularly vulnerable because of other factors that exist. Some of the potential factors which have been recognized are mental deficiency, physical handicaps, intoxication, supervision or control of a defendant over a victim, and extreme youth within the given age range. [Citation.]” (Garcia, supra, at pp. 1069-1070.) For example, in Garcia the defendant was convicted of forcibly molesting a two-and-one-half year old (§ 288, subd. (b)) who lived in the same home as the defendant. (Garcia, supra, at pp. 1062-1063.) The appellate court determined that “[t]his extreme youth coupled with [the victim’s] close relationship to the defendant” supported the trial court’s finding of vulnerability as a factor in aggravation. (Id. at p. 1070.)
The victim in this case was 10 years old, which is older than the victim in Garcia, supra, 166 Cal.App.3d 1056. Further, although the trial court relied on the youthfulness of the victim and the fact that she was sleeping in determining that the offense involved a high degree of cruelty, viciousness, or callousness, the court also relied on those same facts in determining that she was particularly vulnerable. As we have explained, this latter finding regarding vulnerability based on sleeping was proper. However, the court “probably should not have considered” the same two facts—youthfulness and sleeping—as supporting separate factors in aggravation. (Garcia, supra, 166 Cal.App.3d at p. 1070.)
To the extent it was error for the trial court to find as an aggravating factor that the crime involved cruelty, viciousness, or callousness based on the victim’s youthfulness and being asleep, we determine that the error was harmless. “ ‘When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.’ [Citation.]” (People v. Cruz (1995) 38 Cal.App.4th 427, 433-434, quoting People v. Price (1991) 1 Cal.4th 324, 492.) And generally, “a demand for resentencing is not appropriate when there is misplaced reliance on a single aggravating factor.” (People v. Reid (1982) 133 Cal.App.3d 354, 372.)
The trial court cited numerous aggravating factors, which also supported the denial of probation: the victim was particularly vulnerable because she was asleep when defendant initiated the offense (rules 4.414(a)(3) & 4.421(a)(3)); the crime indicated planning or sophistication by defendant because he set up a situation to take advantage of the victim (rules 4.414(a)(8) & 4.421(a)(8)); defendant had a position of trust or confidence with respect to the victim (rules 4.414(a)(9) & 4.421(a)(11)); the offense reflected an increase in seriousness of defendant’s criminal activity (rules 4.414(b)(1) & 4.421(b)(2)); defendant was on probation at the time of the offense (rules 4.414(b)(2) & 4.421(b)(4)); and defendant’s prior performance on probation was unsatisfactory (rules 4.414(b)(2) & 4.421(b)(5)). Although the court found that defendant’s no contest plea was a factor in mitigation (rule 4.423(b)(3)), the court also determined that there was “some continuing risk” of defendant reoffending, and the court was particularly concerned about defendant’s “lack of awareness of his responsibility.” (See rule 4.414(b)(7) & (8) [criteria affecting the decision to grant probation include whether the defendant is remorseful and the likelihood the defendant will be a danger to others if not imprisoned].) Given the nature and number of factors supporting the denial of probation, it is not reasonably probable that the court would have granted probation even had it not determined that the crime involved cruelty, viciousness, or callousness.
IV. DISPOSITION
The judgment is affirmed.
 






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Bamattre-Manoukian, J.






WE CONCUR:






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ELIA, ACTING P.J.






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MIHARA, J.








People v. Mejia
H043976