Filed 3/21/18 P. v. Martin CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

RAYMOND D. MARTIN,

Defendant and Appellant.


G054480

(Super. Ct. No. 13WF2482)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Raymond D. Martin of numerous sex crimes against his granddaughter, J.V.: oral copulation of a child under the age of 10 (Pen. Code, § 288.7, subd. (b) ; counts one & two), aggravated assault (oral copulation) of a child under the age of 14 (§ 269, subd. (a)(4); counts three & four), aggravated sexual assault (rape) of a child under the age of 14 (§ 269, subd. (a)(1); count five); and forcible lewd act (touching of vagina and breasts) on a child under the age of 14 (§ 288, subd. (b)(1); counts six & seven). The trial court sentenced defendant to 76 years to life in prison, consisting of 15 years to life for counts one, three, four and five, a 15-year-to-life sentence on count two, stayed under section 654, and the upper term of eight years each on counts six and seven, to run consecutively.
Defendant contends the prosecutor committed prejudicial misconduct by misstating the law during his rebuttal closing argument. He also argues the trial court relied on an improper aggravating factor to support the upper term on counts six and seven. We find no error and affirm the judgment.

I
FACTS
Defendant and his wife are J.V.’s maternal grandparents. As a child, J.V. spent almost every weekend night at their house, located about 10 minutes from where J.V. lived with her parents. Because J.V.’s grandmother had physical disabilities that required her to walk very slowly, hunched over, and with a cane, defendant primarily took care of J.V. when she visited.
Defendant began sexually abusing J.V. when she was about six to eight years old. He would rub her breasts and vagina, put his mouth on her breasts, and orally copulate her while grabbing her breasts. Many times, defendant would have J.V. orally copulate him by forcing her head and neck down onto his penis and making her move her head up and down until he ejaculated in her mouth. When J.V. spit it out, defendant told her it would not hurt her. Defendant had J.V. orally copulate him in different places around the house, even if J.V.’s grandmother was home. When defendant and J.V. drove to get food, defendant would pull over and have her orally copulate him in the car. J.V. tried to resist, such as by saying “stop” or “no,” but defendant said “‘shush’ and that it was fine.” J.V. also tried to push defendant away with her arms but defendant again would reassure her and tell her everything was okay. Some variation of these sexual acts happened each time J.V. went to her grandparents’ house, depending on what her grandmother was doing and how much time defendant had to be alone with J.V. J.V. was scared when defendant committed these acts against her because he was bigger than her. She did not want to do these things with defendant.
On one occasion, defendant tried to put his finger in J.V.’s vagina but stopped because she was making too much noise due to the pain. Another time, defendant rubbed his penis against J.V.’s vagina after he had her lie down on a bed with her hips at the edge. He also tried to insert his penis into her vagina, but “only got part of it in” because she was again making too much noise. Defendant told J.V. that if anyone found out about any of these acts, both he and her grandmother “would both have to go away,” which upset J.V. because she loved her grandmother.
Defendant’s sexual abuse of J.V. continued until she was 11 or 12 years old, when J.V.’s sister and her fiancé moved into defendant’s home. When she was 13 years old, J.V. attended a church camp during which she disclosed the sexual abuse to a friend and then to a cabin leader. Thereafter, J.V. informed her mother, a social worker, and the police
A detective arranged a pretext call between J.V. and defendant. During the call, J.V. told defendant she was having a hard time dealing with what happened when she was younger. She said, “It’s not like I wanted that.” Defendant replied, “No, I know.” Defendant begged J.V. not to tell anyone because it would get him “into a lot of big trouble.” J.V. asked defendant why he did it; defendant answered it was because she “seemed . . . so eager to learn” and he “wanted to be the first one to show” her about “sex and all that kind of stuff.” Defendant acknowledged J.V. wanted him to stop. When J.V. informed defendant that it used to scare her when they would go pick up food, defendant responded, “Scare you? Why?” He claimed she did not act scared. He also told J.V. they did not really do anything, as he did not penetrate her and it was mostly oral sex. After the call, defendant was arrested.

II
DISCUSSION
A. Alleged Prosecutorial Misconduct
To evaluate defendant’s claim of prosecutorial misconduct, we must first place the prosecutor’s complained of comments in context. (People v. Bell (1989) 49 Cal.3d 502, 534.) During his closing argument, the prosecutor stated, with respect to counts three and four: “[T]he judge read to you the definition of consent; right? What is the consent? Consent is freely and voluntarily, knowing the nature of the act, agreeing to do it. The notion that that a nine, ten, eleven-year-old girl wanted to have her grandfather’s erect penis in her mouth is just unreasonable.” To show defendant used force, the prosecutor argued J.V. “testified the defendant would grab the back of her neck, push her head down. She would resist. [S]he would try to push him away, but he would still complete the acts. She would tell him to stop and he would still go through and shush her away and do it anyway.” As to evidence of duress, the prosecutor asserted: “We know [defendant’s] much older than [J.V.] . . . He’s her grandfather. He’s in a position of authority. He’s kind of the babysitter when she’s over there. . . . And he would tell her . . . ‘If you tell anyone, I’m going to be in a lot of trouble and your grandmother is going to go away . . . . [¶] . . . When you’re seven, you’re eight, you’re nine, you love your grandmother, and there is no other family around. She did what she had to do. But that’s duress. . . . And, of course, she was very young.”
Regarding count five, the prosecutor argued J.V.’s testimony that “[t]he tip of his penis would go in between the lips of her vagina” was sufficient to show penetration under the law, and the only issue therefore was whether there was force or duress. In arguing there was, the prosecutor stated: “[I]t’s essentially the same elements as before. Grandpa, position of authority, putting her on the bed. Taking her clothes off. Doing all those, all of that is the force, duress. All the same.” The prosecutor continued: J.V. “would tell him, ‘No.’ She was scared of him. And then all of the circumstances we’ve talked about with duress.” On the issue of consent, the prosecutor asserted: “Again, we heard from [J.V.]. She was not consenting, and to think that at nine or ten, [J.V] was consenting to have her grandfather take his erect penis and rub it against the lips of her vagina while her grandmother is in the shower is just not reasonable.”
Defense counsel responded by arguing the evidence could be reasonably interpreted as showing defendant did not use force or duress. Under defense counsel’s reasoning, J.V. never claimed she physically resisted defendant until she testified at trial and, in the pretext call, defendant sounded “genuinely surprised” when J.V. said the acts of oral copulation used to scare her. Defense counsel also asserted J.V. did not claim defendant “put his penis in her vagina” until trial and noted defendant had no reason to lie during the pretext call when he said he “‘never did penetrate you.’”
In his rebuttal, the prosecutor argued: “[Defense counsel] didn’t call [J.V.] a liar. But . . . by saying that there was no force when [J.V.] says, ‘he would grab my head and push it down,’ when [J.V.] is saying, ‘I’m scared,’ and the defense counsel is saying there was no fear, that it was all consensual, [defense counsel is] saying [J.V.] is lying. That’s what [defense counsel is] saying. [¶] And it’s unreasonable then to believe that [J.V.] wanted to do those things with the defendant. Because that’s the only other alternative. ‘There was no duress. There was no force. It was consensual.’” (Italics added.) Defense counsel objected that the prosecutor was misstating the law. Overruling the objection, the court reminded the jury that counsels’ argument was not evidence and that the law was what it had instructed.
Defendant contends that in the italicized language above, the prosecutor argued “if there was no duress and no force used, that means the acts were consensual.” According to defendant, this argument misstated the law because it eliminated the “middle ground,” i.e., the possibility the crimes occurred “without the consent of the victim, but without force or duress” and “mean[t] that if the victim did not consent, there must have been force or duress.” Defendant asserts those were the only two alternatives that the prosecutor provided to the jury: (1) consent or (2) force or duress. We are not persuaded.
“‘[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements [citation].’ [Citation.] Improper comments violate the federal Constitution when they constitute a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citation.] Improper comments falling short of this test nevertheless constitute misconduct under state law if they involve use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.]” (People v. Cortez (2016) 63 Cal.4th 101, 130 (Cortez).)
To determine whether misconduct occurred, “we must view the statements in the context of the argument as a whole” even where the “defendant singles out” words and phrases, or at most a few sentences. (People v. Cole (2004) 33 Cal.4th 1158, 1203.) Where, as here, “‘“a claim of misconduct is based on the prosecutor’s comments before the jury, . . . ‘“the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.”’”’” (People v. Adams (2014) 60 Cal.4th 541, 568-569.) “If the challenged comments, viewed in context, ‘would have been taken by a juror to state or imply nothing harmful, [then] they obviously cannot be deemed objectionable.’” (Cortez, supra, 63 Cal.4th at p. 130.) “Initially, in determining how jurors likely understood the prosecution’s arguments, we do ‘“not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.”’” (Id. at p. 131.)
Here, it is not reasonably likely the jury interpreted the prosecutor’s comments in the way defendant contends. When considered in context, it is apparent the prosecutor was not discussing the applicable law. Rather, the prosecutor’s statements were made in rebuttal to defense counsel’s argument that the evidence could be reasonably viewed as showing defendant did not use force or duress because J.V. lied in her trial testimony whereas defendant had no reason to lie during the pretext call. In our view, the prosecutor’s statements fell within his “wide latitude to vigorously argue his . . . case and to make fair comment upon the evidence” (People v. Ledesma (2006) 39 Cal.4th 641, 726), and defense counsel’s closing argument.
In addition to the prosecutor’s “‘wide-ranging right to discuss the case in closing argument’” (People v. Thomas (1992) 2 Cal.4th 489, 526), “[r]ebuttal argument must permit the prosecutor to fairly respond to arguments by defense counsel . . . . ” (People v. Bryden (1998) 63 Cal.App.4th 159, 184.) In this regard, “a prosecutor is justified in making comments in rebuttal, perhaps otherwise improper, which are fairly responsive to argument of defense counsel and are based on the record.” (People v. Hill (1967) 66 Cal.2d 536, 560.) Moreover, “even otherwise prejudicial prosecutorial argument, when made within proper limits in rebuttal to arguments of defense counsel, do not constitute misconduct.” (People v. McDaniel (1976) 16 Cal.3d 156, 177.) The objected to comments here fall within these boundaries, as they were a fair response to defense counsel’s arguments. As such, the prosecutor did not commit misconduct in stating them.
Moreover, the court instructed the jury with CALCRIM No. 200, that it must follow the law as set forth in the instructions, and disregard attorney comments that are inconsistent with the instructions. And immediately after overruling defendant’s objection, the court admonished the jury, “What the law is is the law that I give to you.” We presume the jury followed these instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.) As the California Supreme Court recently reiterated, “‘[w]e presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ [Citation.] ‘[P]rosecutorial commentary should not be given undue weight in analyzing how a reasonable jury understood . . . instructions. Juries are warned in advance that counsel’s remarks are mere argument, missteps can be challenged when they occur, and juries generally understand that counsel’s assertions are the “statements of advocates.” Thus, argument should “not be judged as having the same force as an instruction from the court.”’ [Citation.]” (Cortez, supra, 63 Cal.4th at pp. 131-132.)
In this case, the prosecutor’s remarks were brief and isolated, and made in rebuttal to defense counsel’s closing argument. The court specifically instructed and reminded the jury to follow its instructions if there was any conflict between the law and anything the prosecutor said. The jury was also provided with written instructions to that effect. Accordingly, we conclude there was no reasonable likelihood the jury construed the challenged comments in an improper manner. (See Cortez, supra, 63 Cal.4th at pp. 133-134 [rejecting prosecutorial misconduct claim based on a misstatement of law “given that the challenged comments were brief and constituted a tiny, isolated part of the prosecution’s argument, that the prosecution was responding to defense counsel comments, that the prosecution expressly referred the jurors to the instruction they had on reasonable doubt, that both the court and defense counsel properly defined ‘reasonable doubt’ numerous times, and that the jury had written instructions during deliberations that properly defined the standard”].)
B. Imposition of Upper Term for Counts Six and Seven
In imposing sentence on counts six and seven, the court imposed the upper term of eight years each based on the aggravating factor the victim was extremely vulnerable. Defendant argues the victim’s particular vulnerability was an improper aggravating factor because J.V. “was not more vulnerable than victims in other similar cases.” Acknowledging his counsel failed to object to the use of this factor, defendant asserts counsel provided ineffective assistance. We shall exercise our discretion and consider defendant’s contention on the merits rather than address the ineffective assistance of counsel claim. (See People v. Hardy (1992) 2 Cal.4th 86, 209 [“Rather than confront the ineffective assistance of counsel contention, we consider Hardy’s remorse claims on the merits and conclude they are baseless”]; see also 6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Reversible Error, § 43, p. 574 [“The fact that a party, by failing to raise an issue below, may forfeit the right to raise the issue on appeal does not mean that an appellate court is precluded from considering the issue”].)
Under section 1170, a trial court is “required to specify reasons for its sentencing decision.” (People v. Sandoval (2007) 41 Cal.4th 825, 846-847; § 1170, subds. (b), (c).) The court, however, is not required to “cite ‘facts’ that support its decision or to weigh aggravating and mitigating circumstances.” (Sandoval, at p. 847.) “The trial court has broad discretion with regard to sentencing, and its decision will be affirmed on appeal, so long as it is not arbitrary or irrational and is supported by any reasonable inferences from the record. [Citation.] The party attacking the sentence must show the sentencing decision was irrational or arbitrary and if it fails to do so, ‘“the trial court is presumed to have acted to achieve legitimate sentencing objectives . . . .”’ [Citation.]” (People v. King (2010) 183 Cal.App.4th 1281, 1323 (King); Sandoval, at p. 847.) A single “aggravating factor is sufficient to support the imposition of an upper term.” (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1371.)
We agree the young age of a victim cannot be used as the sole factor in aggravation where the victim’s minority is an element of the offense. (People v. Ginese (1981) 121 Cal.App.3d 468, 476-477; People v. Flores (1981) 115 Cal.App.3d 924, 927.) “However, that is not to say that there are not situations in which a minor under the age of 14 may be determined to be particularly vulnerable because of other factors that exist.” (People v. Garcia (1985) 166 Cal.App.3d 1056, 1069-1070.)
Here, contrary to defendant’s claim, the court’s finding of particular vulnerability was not based solely on the fact the victim was a “young child, and vulnerable in that general sense.” In finding J.V. particularly vulnerable, the court noted she had been “incapable of resisting” for much of her life. The court’s finding is supported by the probation report, which stated the victim was particularly vulnerable because “[d]ue to her age and size, she could not defend herself against defendant” (italics added), and by J.V.’s testimony she tried to resist defendant but she was “too small” and she was afraid of him because he was bigger than her. A victim’s size is a valid consideration in determining whether he or she is particularly vulnerable. (See People v. Sperling (2017) 12 Cal.App.5th 1094, 1103 [victim was petite]; King, supra, 183 Cal.App.4th at p. 1323 [victim was half the defendant’s size]; People v. Alvarado (2001) 87 Cal.App.4th 178, 195 [victim was “not a big woman”]; People v. Estrada (1986) 176 Cal.App.3d 410, 418 [victim had a small stature].)
Additionally, we may look to other factors not specifically cited by the court. (See King, supra, 183 Cal.App.4th at p. 1323 [court’s sentencing decision will be affirmed if “supported by any reasonable inference from the record”]; see also People v. Alvarado, supra, 87 Cal.App.4th at p. 195 [“Moreover, the record reveals additional circumstances that rendered the victim particularly vulnerable”].) Other potential factors that have been recognized as supporting a finding of particular vulnerability are “supervision or control of a defendant over a victim, . . . extreme youth within the given age range” (People v. Garcia, supra, 166 Cal.App.3d at p. 1070), “‘the victim’s relationship with the defendant and his abuse of a position of trust’” (People v. DeHoyos (2013) 57 Cal.4th 79, 154), the fact “the molestation took place . . . outside of public view” (People v. Dancer (1996) 45 Cal.App.4th 1677, 1694 (Dancer), disapproved on another ground in People v. Hammon (1997) 15 Cal.4th 1117, 1123), and the victim’s fear (Dancer, supra, 45 Cal.App.4th at p. 1694 [victim “was afraid to reveal the molestation, fearing punishment”]; People v. Ginese, supra, 121 Cal.App.3d at p. 477 [fear may be a factor in making a victim particularly vulnerable]).
Here, defendant was J.V.’s primary caretaker when she went to his house because J.V.’s grandmother had physical disabilities that hampered her ability to walk. J.V. was extremely young (between six and eight years old) when defendant began molesting her. Defendant was J.V.’s grandfather and abused what should have been a position of love and trust. The molestations occurred “outside of public view” (Dancer, supra, 45 Cal.App.4th at p. 1694) while J.V. was alone with defendant with no one around for her to turn to for help.
Fear was another factor that made J.V. particularly vulnerable. J.V. testified she was scared when defendant molested her because he was bigger than she was. In the pretext telephone call arranged by the police, J.V. told defendant that the “stuff in the car . . . used to scare [her] a lot.” And J.V. was afraid to tell anyone because defendant had told her that if anyone found out, both he and her grandmother would have “have to go away,” which upset J.V. because she loved her grandmother and did not want her to leave.
We reject defendant’s claim J.V. was not particularly vulnerable because she willingly went to his house, she did not live with or depend on him, and he was not a stranger. A victim can be found particularly vulnerable despite those facts. (See Dancer, supra, 45 Cal.App.4th at pp. 1683, 1694-1695 [affirming finding that victim was particularly vulnerable where victim willingly and often went to the defendant neighbor’s apartment to play despite being told by her mother not to do so].) Moreover, J.V. testified at trial that she continued going to her grandparents’ house even knowing what her grandfather would do because she loved her grandmother and wanted to see her, as they were close. It is reasonable to infer defendant knew of J.V.’s love for her grandmother and exploited that love. (King, supra, 183 Cal.App.4th at p. 1323.)
The record shows J.V.’s age was not the sole factor in the trial court’s determination J.V. was particularly vulnerable. We therefore conclude the court did not err in relying on that aggravating factor.

III
DISPOSITION
The judgment is affirmed.


MOORE, J.

WE CONCUR:


O’LEARY, P. J.



THOMPSON, J.