Opinion
C051605
4-16-2008
THE PEOPLE, Plaintiff and Respondent, v. RICHARD LEE HARNESS, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant Richard Lee Harness was convicted after a jury trial of three counts of committing lewd acts on a child under the age of 14. (Pen. Code, § 288, subd. (a)). The trial court sentenced defendant to the upper term of eight years on count 1, and consecutive midterms of two years on counts 2 and 3 for a total of 12 years in state prison.
On appeal, defendant contends: (1) the trial court abused its discretion in admitting evidence of his prior sexual offense; (2) reversal is required due to prosecutorial misconduct during closing argument; (3) imposition of the upper term violated the principles of Blakely v. Washington (2004) 542 U.S. 296 (hereafter Blakely); and (4) the trial court abused its discretion in imposing the upper term. We affirm.
BACKGROUND
Mark and his two daughters, R. (the victim) and S., moved in with Michelle around October 2002. Mark and Michelle had met approximately a month before they moved in together. At the time, R. was seven years old and S. was two years old. Defendant, Michelles adult son, lived in an old pump house, referred to as the "tower room," which had been converted into a bedroom and was attached to the main dwelling. Defendant babysat R. and S. when Mark and Michelle went out on dates.
In April 2004, they moved to a new residence. Defendant lived in the garage at the new residence for a couple of weeks.
In June 2004, Mark and his two daughters attended a graduation party in a town approximately two hours from their home. While at the party, R. told 10-year-old J. that her older stepbrother was touching her but not to tell anyone. J., however, felt he should tell someone and told his mother, who informed Mark of R.s accusation.
Mark asked R. about the accusation as they returned home. He was concerned about how Michelle would react since she was very protective of defendant. He then contacted the police.
Officer Smith came to the house to talk to R. and Mark. R. told Smith that defendant had "popped her cherry." R. then said she had made a mistake and had done that to herself. R. said it had occurred a few weeks prior, that it had hurt and she bled a few drops. R. also said she had lied to J. at the graduation party because she wanted to impress him.
Officer Elder was assigned to follow up on the report. Elder left several messages for Mark and, when Mark finally called her back, he told her he did not see any need for her to speak to his daughter because someone had already called her a liar. Mark claimed he had called the police department and a male detective, whose name he did not remember, told him R. had lied. The police department, however, had no record of any officer or detective having spoken with Mark. Because Mark would not cooperate or permit Elder to meet with R., Elder suspended the investigation until such time as the victim could be contacted.
Mark and Michelle married at the end of August 2004. In March 2005, Mark took R. to urgent care because she had vaginal bleeding. After examining R., the physician contacted authorities and Officer Sareeram came to the clinic. Sareeram spoke with R., who said she had been sexually abused once in the past by her stepbrother, Richard Harness. R. also informed Sareeram that she was "sexually curious," had touched herself the night before and caused some bleeding. Sareeram spoke with Michelle and had Mark and Michelle take R. to the county hospital for further examination. R. later stated that this was when Michelle first found out that defendant had touched her. Mark had already known because he had told R. "[a] long time ago" that defendant had touched two other girls when he was camping.
Social worker Bachman interviewed R. at the Child Advocacy Center in Stockton. The interview was videotaped and the tape and transcript of the interview was admitted into evidence at trial.
During the interview, R. told Bachman that defendant had touched her on three occasions while he was babysitting at their old house. Defendant told her not to tell anyone that he touched her or he would be arrested.
The first time, they were in the garage and defendant touched her on her breast and vaginal area, over her clothing. He told her "thats the way adults touch."
The second time, defendant licked her on her vaginal area. On that same day, defendant had shown her a videotape in which nude people were touching each other. Defendant gave her the case to the videotape and told her to hide it. She did but Mark found it.
On the third occasion, defendant had her take off her shorts and underwear and put his finger inside her vagina. It hurt and he made her bleed. She also said that she had hurt herself and made herself bleed.
Detective Ridino then interviewed defendant at the police department. The interview was videotaped and the tape and transcript of the interview was admitted into evidence at trial. Defendant claimed he was caring for R. and S. as if he were their parent. He was teaching R. morals, instructing her on personal hygiene, helping her with her homework, and tucking her into bed. Defendant claimed R. had been abused by her parents and would act out sexually, such as trying to force his hand down to her vaginal area or trying to show him her private parts. Defendant also said that R. would sometimes lie.
Defendant admitted he used to have pornography, but denied ever showing it to R. He got rid of the pornography after Mark accused him of molesting R. A case to a pornographic video was found in R.s room was his but never contained the video. Defendant denied ever inappropriately touching R. He said he did not even know where her vaginal opening was because he had never been with anyone.
R. testified at trial but did not remember defendant touching her inappropriately, licking her, ordering her to take off her clothing, or showing her a pornographic movie. She claimed not to remember talking to Bachman. She also did not remember going to the graduation party or knowing J. She did admit to remembering she told Ridino that defendant had touched her. She said she forgets things easily and can barely remember what she did yesterday.
Mark testified that he had once come home to find R. with her pants down while defendant was in the shower in the adjacent bathroom. R. was seven or eight years old at the time. Mark asked R. what was going on and she responded that "Richard made me do it." Mark confronted defendant when he came out of the shower. Defendant defended himself and Mark gave him the benefit of the doubt. R. had then changed her story and said defendant did not have anything to do with it — that she was checking her pants because she thought she had an accident. It is unclear whether R. changed her story before or after Mark confronted defendant.
Carol and her daughter, T., testified about an incident that occurred when they were camping in Tuolumne County in June 2004. Carol was camping with friends, including then 10-year-old T., T.s two girlfriends who were both around nine or 10 years old, and Carols son and his male friend who were 11 or 12 years old. Defendant was camping alone nearby. Carol introduced herself to defendant when she went to check on her son and his friend, who were at defendants campsite. Defendant claimed he was 17 years old and started hanging around a lot with Carols group and playing with the children. On at least one occasion, he disappeared with some of the children into a tent.
At one point, when T. was between campsites, defendant pulled open her shirt, looked down it, gave her a "thumbs up," and said, "looking good." Defendant walked around and continued to give her the "thumbs up" and to remark that she was "looking good." Ten or 15 minutes later, defendant did the same thing to one of T.s friends. Defendant told T. not to tell her mother.
T. told her brother, who in turn, told his mother — with T. and her friend in tow. After talking to T. about what had happened, Carol confronted defendant. Defendant said he knew what he had done was "bad and wrong," that he was sorry and he would not do it again. At first, Carol was not going to report it because she thought it may have been an innocent mistake but when she saw defendants identification, which indicated he was 24 years old, she contacted the police.
Officer DHondt responded to the report of child molestation and spoke with Carol, T. and T.s friend. DHondt then talked to defendant. Defendant said he had been wrestling with the girls when his finger got caught in T.s shirt and he lifted it up. He admitted, however, that he had lifted up T.s friends shirt. Defendant was arrested and while in route to the county jail, he said he was worried because the same type of situation had happened with a 15-year-old girl when he was a juvenile. He also told DHondt that he did not know what he could and could not do with kids anymore.
During defendants interview with Ridino, defendant admitted camping and playing with the girls. He told Ridino that he was trying to tickle one girl in the armpit when his finger "got caught on her shirt" and "pulled it up." He claimed it was an accident and just a misunderstanding. He was convicted of a misdemeanor and spent a month in jail. He explained there were two counts but only one incident.
The jury found defendant guilty on three counts of committing lewd acts upon R. The verdicts specifically identified the three acts as those three incidents that R. told Bachman about at the Child Advocacy Center.
DISCUSSION
I
Evidence Code Section 352Defendant contends the trial court abused its discretion by admitting evidence of his prior sexual offense. He argues its probative value was substantially outweighed by its potential for undue prejudice and confusing the issues, thereby making this evidence inadmissible under Evidence Code section 352. He further maintains the admission of this evidence violated his constitutional rights. We find no error.
Further undesignated statutory references are to the Evidence Code.
Section 1108 provides, in pertinent part: "(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." Thus, evidence of prior sexual misconduct is subject to exclusion only if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing issues, or of misleading the jury. (§§ 352; 1108, subd. (a).)
Initially, we reject defendants challenge to the constitutionality of section 1108. As defendant recognizes, his due process claim was rejected by the California Supreme Court in People v. Falsetta (1999) 21 Cal.4th 903, 916-918 (hereafter Falsetta), and we are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We now turn to defendants claim that the trial court abused its discretion in admitting the evidence of his prior misdemeanor sex offense.
The trial court has broad discretion in deciding whether to limit or exclude otherwise admissible evidence, and its exercise of discretion may not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) Where a trial court has allowed the introduction of evidence after weighing probative value against prejudice under section 352, we will not overturn that exercise of discretion unless it was "palpably arbitrary, capricious and patently absurd." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
Here, the record shows the trial court properly performed the weighing process. After doing so, the court provided the following reasons for its decision: "Here, I think the Tuolumne incidents are very probative, especially on the issues of the age of the victims and the time period in question. [¶] It would not be an undue consumption of time. While it would take a little extra time in this trial, it is not a burden on this trial. [¶] And while it would obviously have some prejudicial impact, that would be minimized by both the nature of the conduct in that case and the jury instructions that will be read to the jury regarding that. [¶] So the Court cannot find that the probative value is substantially outweighed by the prejudice and, therefore, the Tuolumne incidents will be admissible."
We find no abuse of discretion in the trial courts decision.
In evaluating the probative value of other sexual crimes evidence, courts look to the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence in each offense. (Falsetta, supra, 21 Cal.4th at p. 917; People v. Balcom (1994) 7 Cal.4th 414, 427.)
Defendant asserts that his prior acts were dissimilar to the charged acts, making their probative value minimal. But to be admissible, the evidence need not be so similar to the current offenses as to meet the requirements of section 1101. (People v. Callahan (1999) 74 Cal.App.4th 356, 368; People v. Soto (1998) 64 Cal.App.4th 966, 986; People v. Harris (1998) 60 Cal.App.4th 727, 740.) "It is enough the charged and uncharged offenses are sex offenses as defined in section 1108." (People v. Frazier (2001) 89 Cal.App.4th 30, 41, fn. omitted.) Here, the probative value was significantly greater than the mere fact that both the prior acts and the charged offenses were sexual offenses. As noted by the trial court, the prior incidents involved girls of the same age as the victim in the charged offenses and occurred during the same timeframe. Additionally, the probative value of the prior offense was increased because there was an independent source of the evidence and that source reported the prior offense independently and before finding out about the charged offense. (See People v. Ewoldt (1994) 7 Cal.4th 380, 404-405.)
In assessing the prejudicial effect of evidence of uncharged offenses, courts consider factors such as whether the evidence of prior acts is inflammatory, is remote in time, would result in an undue consumption of time, and is likely to confuse the jury and lead them to punish the defendant for his prior acts. (People v. Ewoldt, supra, 7 Cal.4th at p. 405; People v. Harris, supra, 60 Cal.App.4th at pp. 737-741.)
"`"The prejudice which [section 352] is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." [Citation.]" (People v. Harris, supra, 60 Cal.App.4th at p. 737.) "`The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues." (People v. Karis (1988) 46 Cal.3d 612, 638.) "[E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors emotional reaction." (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1009.)
We find nothing unduly prejudicial or inflammatory about the proffered evidence. Although we disagree with defendants characterization of his prior acts as "immature playing between children," the acts involved in his prior misdemeanor case were less inflammatory than the acts described by the victim in the present case. There was nothing about the facts of the prior offense that would necessarily provoke an emotional bias or otherwise inflame the jury.
Defendant also states, with no analysis, that the "probative value was decreased because the prior offense evidence was cumulative." There was, however, nothing cumulative in the admission of the evidence of the prior offense because none was repetitive of the same factual scenario.
Finally, defendant argues the prior offense evidence should have been excluded because there was a danger the jury would confuse the issues and punish him for the prior acts. Although the testimony regarding the prior offense consumed 59 pages of the trial transcript (less than one-third of the trial testimony), the jury was also informed that defendant had already been convicted in the prior misdemeanor case. Thus, there was no risk the jury would feel compelled to punish him for the prior acts, instead of focusing on determining whether it considered him guilty of the charged offenses.
We find no abuse of discretion in the trial courts well-expressed determination that the probative value of the prior offense evidence was not outweighed by the risk of undue prejudice, undue consumption of time, or the possibility of confusing or misleading the jury. As we have concluded the trial court properly exercised its discretion under section 352, we likewise reject defendants claim of a due process violation. (See People v. Lewis (2006) 39 Cal.4th 970, 990, fn. 5)
II
Prosecutorial Misconduct
Defendant contends the prosecutor made certain comments during closing argument that constituted prosecutorial misconduct because, he argues, those comments impermissibly shifted or diminished the burden of proof and, therefore, violated his due process rights. We find no grounds for reversal.
In closing, the prosecutor argued, "Is it reasonable to believe that if [defendant] did not do any of the conduct that [R.] has told you about, that he would respond in this fashion? If he didnt do it, it would be, `No, no, no, no, never happened. Innocent people do not admit to conduct."
Defense counsels objection that the "burden of proofs not innocence" was sustained. The prosecutor then continued with her closing argument as follows:
"MS. SMITH [prosecutor]: The evidence doesnt give you anything other than all of the evidence you need to convict the defendant. And if you are not going to believe [R.], have a reason for it. A reasonable reason for it. [¶] And if youre going to believe the defendants side of the story, make sure thats reasonable.
"MR. TAYLOR [defense counsel]: Objection. Thats shifting the burden of proof again.
"THE COURT: Hold on. Let me read it back. [¶] . . . [¶]
"THE COURT: Overruled.
"MS. SMITH: The standard is not for your doubts to be completely removed, as defense counsel wants you to believe. It is beyond any reasonable doubt."
The prosecutor in closing argument has broad discretion to state his or her views as to what the evidence shows and what inferences may be drawn from the evidence. (People v. Sims (1993) 5 Cal.4th 405, 463.) A prosecutors improper remarks or intemperate behavior can infect the trial with unfairness so as to render the resulting conviction a denial of due process. (People v. Valdez (2004) 32 Cal.4th 73, 122.) However, actions by a prosecutor that do not render a criminal trial fundamentally unfair will violate a defendants state law due process right only if the actions involve the use of deceptive or reprehensible methods to attempt to persuade the jury. (Ibid.)
To prevail on a claim of misconduct based on a prosecutors statements to the jury, the defendant must show a reasonable likelihood the jury understood or applied the statements in an improper or erroneous manner. (People v. Frye (1998) 18 Cal.4th 894, 970.) The appellate court considers the contested statements in context and does not lightly infer that the jury drew the most damaging meaning from the words. (Ibid.; People v. Dennis (1998) 17 Cal.4th 468, 522.)
Relying on cases which reviewed the language of jury instructions defining "reasonable doubt," defendant maintains that the concept that "reasonable doubt" requires a "reason to doubt" is misleading and creates a danger that the jury will believe it should look to defendant to articulate a reason for doubt or prove his innocence. Thus, he argues, the prosecutor committed misconduct requiring reversal when she argued: "And if you are not going to believe [R.], have a reason for it. A reasonable reason for it. [¶] And if youre going to believe the defendants side of the story, make sure thats reasonable."
We do not agree that the prosecutors comments, even taken in isolation, rose to the level of suggesting that defendant should articulate a reason to doubt the prosecutions evidence or otherwise prove his innocence. However, any misunderstanding was dispelled by the further arguments of both the prosecutor and defense counsel, and by the jury instructions given by the trial court.
Earlier in her closing argument, the prosecutor reminded the jury that the People have the burden of proof beyond a reasonable doubt. She also argues: "[Defendant] has an explanation for everything. But, unfortunately, hes leaving in the wake children who have the ability and are willing to tell us the truth about what he really did to them. And thats what you have before you. [¶] And it all comes down to what is reasonable. What is reasonable? Is it reasonable to believe his version? Or is it reasonable to believe these children that are coming here telling stories that are consistently factually based and theres information surrounding them which lead to that credibility? [¶] What, Ladies and Gentlemen, is reasonable? And thats what your ultimate decision is going to have to be. Because youre going to get jury instructions. If there is one interpretation that leads to what is reasonable, youre to adopt that one. If theres one that — that is unreasonable, youre to adopt that [sic]. If it can — if it can tend both ways, because the defendant always has the right to have that [sic] beyond a reasonable doubt, if you feel its unreasonable and somewhat reasonable than they get unreasonable [sic]. [¶] But that just doesnt apply here, Theres nothing reasonable about anything that he said."
These earlier arguments put the prosecutors comments in context and dispel the likelihood the jury would misconstrue them.
Further dispelling any misunderstanding, defense counsel argued during closing: "Every piece of circumstantial evidence according to the law that requires — that needs to be inferred in favor of the prosecutions case, if there is a reasonable explanation, one explanation points to my clients guilt, the other one points to his innocence, the law absolutely requires you to adopt the one that points to his innocence. [¶] That is in a jury instruction you will get in the courtroom. Of course, it does presume that both assumptions or both — both facts are reasonable. I mean, that has to be a reasonable assumption, of course."
Defense counsel also recited the instruction on the meaning of reasonable doubt and provided his own interpretation: "Everything relating to human affairs is open to some possible or imaginary doubt. But what reasonable doubt is is the state of the case where, after the entire consideration and comparison of all the evidence, you — it leaves in the minds of the jurors an abiding conviction as to the truth of the charge. [¶] So what is an abiding conviction? This is a belief you carry with you tomorrow when you wake up. This is a belief you carry with you next week. The week after that. The month after that. The year after that. [¶] Any time when youre reflecting back upon this trial and what happened, you would never have a doubt about what happened. Thats beyond a reasonable doubt."
Defense counsel also told the jury: "If you have doubts when youre in the jury room, stick to that decision. You and you alone will decide if the doubts are completely removed from your mind. Dont compromise your doubts for someone else."
Moreover, the jury here was properly instructed on reasonable doubt by the trial court. The jury was provided with CALJIC No. 2.90, which provided: "A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge."
The trial court also provided the jury with CALJIC No. 2.01 on the sufficiency of circumstantial evidence as follows: "However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion. [¶] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendants guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt. [¶] Also, if the circumstantial evidence as to any particular count permits two reasonable interpretations, one of which points to the defendants guilt and the other to his innocence, you must adopt that interpretation that points to the defendants innocence, and reject that interpretation that points to his guilt. [¶] If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable."
"[A] prosecutor is free to give his opinion on the state of the evidence, and in arguing his case to the jury, has wide latitude to comment on both its quality and the credibility of witnesses. [Citations.]" (People v. Padilla (1995) 11 Cal.4th 891, 945-946, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Here, during closing arguments, both the prosecutor and defense counsel also attempted to paraphrase certain instructions. Both muddled them. Neither is guilty of misconduct, only inaccuracy.
Such occasional missteps are provided for in the standard jury instructions by, for example, CALJIC No. 1.00, that was given here, stated, in pertinent part: "You must accept and follow the law as I state it to you, regardless of whether you agree with it. If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions. . . ."
Viewed in context, and in light of the courts instructions to the jury, there is no reasonable likelihood the jury understood or applied the complained of statements in an improper or erroneous manner so as to shift or diminish the burden of proof.
III
Blakely Violation
The court found the following six factors in aggravation under rule 4.421 of the California Rules of Court: the victim was particularly vulnerable; the manner in which the crimes were committed indicated planning, sophistication, or professionalism; defendant took advantage of a position of trust or confidence; defendant dissuaded the victim from testifying by "telling the victim not to tell anyone about this or he would get in trouble"; defendants prior convictions as an adult or sustained petitions in juvenile court are numerous or of increasing seriousness; and defendant was on probation when the crime was committed, so his prior performance on probation or parole was unsatisfactory.
In mitigation, the court found that defendant was suffering from a mental condition.
Defendant contends the trial court violated his right to a jury trial by imposing the upper term based on facts not admitted by him or found by a jury. There was no such violation.
Applying the Sixth and Fourteenth Amendments to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Id. at p. 490, italics added.) For this purpose, the "statutory maximum" is the maximum sentence the trial court may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Blakely, supra, 542 U.S. at p. 303.)
In Cunningham v. California (2007) 549 U.S. ___ (hereafter Cunningham), the United States Supreme Court held that under Blakely and other decisions, Californias determinate sentencing law "violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments" to the extent the law allows a judge to impose an upper term sentence "based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant." (Cunningham, supra, 549 U.S. at p. ___ , overruling People v. Black (2005) 35 Cal.4th 1238 (Black I) on this point, vacated in Black v. California (2007) ___ U.S. ___ .)
On remand from the United States Supreme Court, for reconsideration in light of Cunningham, the California Supreme Court recently held that "imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions." (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).) The "prior conviction" exception "include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions." (Id. at p. 819.)
Here, one of the facts upon which the trial court relied upon in imposing the upper term was that defendants prior convictions as an adult or sustained petitions in juvenile court are numerous or of increasing seriousness. Moreover, as found by the trial court, defendant was on probation when the crime was committed, so his performance on probation or parole was unsatisfactory. Because these aggravating factors made defendant eligible for the upper term, the trial court did not violate defendants right to a jury trial in imposing the upper term.
IV
Sentencing Discretion
Defendant takes issue with the trial courts reliance on the aggravating factors that the victim was particularly vulnerable, that defendant took advantage of a position of trust, and that he dissuaded the victim from testifying. He claims those factors are not supported by the facts and, therefore, were improperly considered. We reject his claim of error for several reasons.
As the People correctly point out, this claim of error has been forfeited because defendant did not object to the sentence on this basis in the trial court and never argued that there was no factual basis to support these findings. (People v. Scott (1994) 9 Cal.4th 331, 348; People v. Dancer (1996) 45 Cal.App.4th 1677, 1693, overruled on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123.)
Appellate counsel has attempted to raise an ineffective assistance of counsel claim to overcome the Peoples forfeiture argument. Counsels efforts, however, fail for several reasons. First, counsel did not raise the argument in the opening brief as required, but instead, improperly and disingenuously attempted to add the argument into the opening brief after the respondents brief was filed via a so-called "errata." The argument was improperly raised for the first time on reply and, therefore, we do not consider it. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8; see also Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10 [unfair to consider issues raised in reply brief]; People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) And second, counsel did not properly brief the issue. The contention that trial counsel was ineffective is merely perfunctorily asserted. We do not consider contentions for which a party offers no authority or reasoned argument. (See People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 [issues perfunctorily asserted need not be considered].) Finally, the argument fails because, as set forth herein, it has no merit.
In any event, defendants argument fails for two other reasons, including its lack of merit.
The trial court found three other factors in aggravation and only a single factor in mitigation — which the trial court expressly stated did not carry a lot of weight and was "not persuasive." Defendant does not here challenge the other aggravating factors. Nor does he here contest the courts finding that there was only a single, unpersuasive mitigating factor. A single valid factor is enough to justify imposition of an aggravated term. (People v. Forster (1994) 29 Cal.App.4th 1746, 1758-1759.) Here, there are three uncontested, valid factors — more than enough to support the trial courts sentencing choice. The trial courts comments that the single mitigating factor was unpersuasive and did not carry much weight and that the circumstances in aggravation "far outweigh" the circumstance in mitigation make it readily apparent that, even in the absence of one or more of the complained of factors, the trial court would have justifiably imposed the upper term. "[T]here still remains a far heavier tilt of aggravating circumstances over mitigating circumstances to be considered." (People v. Gragg (1989) 216 Cal.App.3d 32, 46.)
More importantly, the record supports the trial courts findings that the victim was particularly vulnerable, that defendant took advantage of a position of trust, and that he dissuaded the victim from testifying.
The trial courts finding of circumstances in aggravation is reviewed for substantial evidence. (People v. Gragg, supra, 216 Cal.App.3d at p. 46.) We view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Carpenter (1997) 15 Cal.4th 312, 387.) We determine whether the record discloses "substantial evidence — that is, evidence that is reasonable, credible, and of solid value," such that the trial court could find the existence of the aggravating circumstance. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) In this case, there was sufficient evidence of all three of the complained of aggravating factors.
The trial court explained its findings that the victim was particularly vulnerable and that defendant took advantage of a position of trust as follows: "This is a usual — unusual case outside of the normal 288 realm, because the victim in this matter lives in a very dysfunctional situation. [¶] And as the People have argued, she has a father that does not protect her and is more interested in his relationship with his wife than being the protector of his daughter and would leave her alone with the defendant while he went out on dates with his wife, even after he was informed there was sexual conduct occurring. [¶] So because of that, the Court will find that the victim was particularly vulnerable and the defendant took advantage of a position of trust. [¶] Also, by the defendants own statements in his interview, he took on a father or older brother relationship with the victim, and not only in her physical daily care, but when he showed her the pornography tape and told her, `This is how adults do it."
The record supports the trial courts findings. "As used in the context of [former] rule 421(a)(3) [now rule 4.421(a)(3)], a `particularly vulnerable victim is one who is vulnerable `in a special or unusual degree, to an extent greater than in other cases. Vulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendants criminal act." (People v. Bloom (1983) 142 Cal.App.3d 310, 321.)
"`[P]articular vulnerability is determined in light of the `total milieu in which the commission of the crime occurred . . . . [Citation.]" (People v. Dancer, supra, 45 Cal.App.4th at p. 1694, overruled on other grounds in People v. Hammon, supra, 15 Cal.4th at p. 1123.) "[A] victims extremely young age together with other circumstances like the time and location of the offense can establish `particular vulnerability as an aggravating factor." (Ibid.)
Here, the victim was only nine years old when defendant molested her. (See People v. OConnor (1992) 8 Cal.App.4th 941, 952, fn. 7 [particular vulnerability circumstance present when victim was 11 years old, not merely under 14 years of age as required by Pen. Code, § 288].) Moreover, she was easily accessible to defendant, who resided in the same home and had repeated access to her when there was no one available to assist or protect her. Moreover, as the trial court noted, she had a father who was actively not protecting her, leaving her alone with defendant even after he had information to suggest defendant was molesting her. Thus, there was substantial evidence to support the finding that the victim was particularly unprotected, accessible, and assailable.
The victims sibling was four years old at the time of the offenses and cannot be considered to be of assistance in protecting the victim.
There was also substantial evidence to support the finding that defendant took advantage of a position of trust. Defendant was repeatedly entrusted with the victims care. He was her stepbrother and, by his own admission, took on a parental role with the victim, including teaching her morals, instructing her on personal hygiene, helping her with her homework, and tucking her into bed. (See People v. Clark (1992) 12 Cal.App.4th 663, 666 [victim particularly vulnerable because defendant resided in home and defendant took advantage of a position of trust as victims stepfather and caretaker].)
Defendant argues the victim cannot be considered vulnerable because her father does not protect her and that defendant cannot be deemed to have abused his position of trust "because he was her stepbrother and not a stranger." For these arguments, he offers no authority. We may treat as waived any contention for which the brief does not provide citation to authority. (Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794.) In addition, as set forth above, the arguments have no discernible merit.
Defendant also offers no authority for his argument that he should not be considered to have dissuaded the victim from testifying because he "did not threaten the victim with harm to her or another family member." Instead, he told the victim not to tell or he (her stepbrother and caretaker) would be arrested. We reject his argument, not only because he cites to no authority, but because it is without merit. "Dissuade" means to advise or exhort against or to divert by advise or persuasion. (Websters 3d New Internat. Dict. (1993) p. 657.) There was substantial evidence for the trial court to find that the nine-year-old minor would consider the possibility of her stepbrothers (and caretakers) arrest as a threat to the stability of her new family and, perhaps even to her security, since defendant was acting as her father figure.
In sum, the trial court did not abuse its discretion in imposing the upper term.
DISPOSITION
The judgment is affirmed.
We concur:
RAYE, J.
ROBIE, J.