Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC508824
ELIA, J.Defendant Gregory Welker pleaded guilty to continuous sexual abuse of his stepdaughter and was sentenced to the middle term of 12 years in prison. (Pen. Code, § 288.5, subd. (a).) On appeal, he contends that the trial court relied on improper aggravating factors at sentencing. We find no abuse of discretion and affirm the judgment.
Defendant has also filed a petition for writ of habeas corpus, which this court ordered considered with this appeal. We dispose of the habeas petition by separate order filed this day. (See Cal. Rules of Court, rule 8.264(b)(2)(A).)
Background
The parties summarize the facts as they were related in the probation report, which in turn was derived from the police report, along with a police officer's "case update." The victim was 11 years old when police interviewed her in 2005. During the previous year, she said, her mother, Lisa, had left her with defendant while Lisa stayed at the hospital with the victim's four-year-old sister (defendant's daughter), who was undergoing treatment for leukemia. The victim and her brother fell asleep in her mother's bed while watching television. Defendant entered the bedroom and reached into her pajama bottoms to rub her vaginal area with two fingers. Between March 1 and October 17, 2005, defendant engaged in this conduct about 25 times.
On April 6, 2006, defendant pleaded guilty as charged to continuous sexual abuse of a child. His subsequent motion to withdraw his plea was denied. On November 21, 2006, the court sentenced defendant to the middle term of 12 years and imposed various other fines and conditions.
Discussion
Among the circumstances that a court may consider in selecting the appropriate term at sentencing are "(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; . . . [¶] (3) The victim was particularly vulnerable; . . . [¶] and (11) The defendant took advantage of a position of trust or confidence to commit the offense." (Cal. Rules of Court, rule 4.421(a).)
All further references to rules are to the California Rules of Court.
The probation report recommended two findings in aggravation pursuant to rule 4.421: defendant took advantage of a position of trust or confidence to commit the offense (rule 4.421(a)(11)) and the crime involved "great violence, or other acts, disclosing a high degree of cruelty, viciousness, or callousness" (rule 4.421(a)(1)). The probation officer added that it "could also be argued the victim was particularly vulnerable, as she was in bed asleep when one of the incidents occurred." At sentencing the prosecutor urged the court to find the victim's particular vulnerability an additional circumstance in aggravation in view of the crisis the family was experiencing at the time. (Rule 4.421(a)(3).)
The prosecutor argued: "[H]ow can a young girl be expected to come forward and tell her mother what's going on when she sees that her mother is preoccupied with her sister and there's a lot going on and the family is in crisis basically. And that is probably one of the reasons why it occurred over such a long period of time."
The probation officer noted for the court that defendant had no prior criminal record, a circumstance in mitigation under rule 4.423(b)(1). The officer suggested one other mitigating circumstance—that defendant had voluntarily acknowledged wrongdoing at an early stage of the criminal process. (Rule 4.423(b)(3).) The prosecutor agreed with the first point, but questioned the second, noting that after pleading guilty defendant had denied committing the offense in discussing his case with the probation officer. The prosecutor accepted the probation officer's recommendation of the midterm, but emphasized that it should be "nothing less than that."
Defendant not only denied the abuse in discussing the case with the probation officer, he moved to withdraw his plea on the ground that he was innocent; he had been under duress and was "not thinking clearly" on the day of the preliminary hearing when he pleaded guilty.
Defense counsel asked the court to impose the mitigated term. She disagreed with the probation officer's suggestion that the crime involved great violence, great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness. She agreed that defendant "totally" took advantage of a position of trust or confidence to commit the offense in light of the family situation; to argue otherwise, she said, would be "ridiculous." But defense counsel did not believe that the victim was particularly vulnerable within the meaning of rule 4.421(a)(3).
The trial court imposed the midterm of 12 years, reasoning that the aggravating and mitigating factors "more or less cancel out each other." The court agreed that there were two circumstances in mitigation—the lack of criminal record and early acknowledgement of wrongdoing. Nevertheless, the court found that there was "a great deal of emotional distress that was caused to the victim in this matter. I think the victim was particularly vulnerable in view of the circumstances that the family was going through and what was happening with her younger sister. I think she was particularly vulnerable with regard to that. And certainly the defendant took advantage of a position of trust or confidence in committing the offense."
Although defendant does not acknowledge the standard of review, we cannot disregard our role on appeal. " 'Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in 'qualitative as well as quantitative terms' [citation] . . . . We must affirm unless there is a clear showing the sentence choice was arbitrary or irrational.' [Citation.]" (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582; People v. Lai (2006) 138 Cal.App.4th 1227, 1258.) That showing, the Supreme Court has explained, amounts to a determination that "the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316.) Such a miscarriage of justice will not be found unless it is reasonably probable that a result more favorable to the defendant would have been reached absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) Furthermore, it is defendant's burden to show that the sentencing decision was irrational or arbitrary. (People v. Lai, supra, 138 Cal.App.4th at p. 1258.) That we may disagree with the trial judge's reasonable sentencing choice is insufficient, as the appellate court is " 'neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.)
On appeal, defendant takes exception to two of the aggravating factors cited by the trial court—that the victim suffered "a great deal of emotional distress" and that she was particularly vulnerable. Addressing the first, defendant relies on People v. Levitt (1984) 156 Cal.App.3d 500, where the Second District, Division 4, rejected as an aggravating circumstance the bereavement of the victim's family because it was not rationally related to the defendant's degree of culpability: "We think it obvious that a defendant's level of culpability depends not on fortuitous circumstances such as the composition of his victim's family, but on circumstances over which he has control. . . . [T]he fact that a victim's family is irredeemably bereaved can be attributable to no act of will of the defendant other than his commission of homicide in the first place. Such bereavement is relevant to damages in a civil action, but it has no relationship to the proper purposes of sentencing in a criminal case." (Id. at pp. 516-517.)
The situation presented here, however, can be distinguished from that of Levitt. The emotional distress of the victim was not only the consequence of a completed act and thus out of defendant's control; he made a choice to continue sexually abusing the victim on each occasion notwithstanding her distress. Assuming error, however, we nonetheless find no prejudice. "Under California's determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term." (People v. Black (2007) 41 Cal.4th 799, 813, citing People v. Osband (1996) 13 Cal.4th 622, 728.) Here the court noted that defendant "certainly" took advantage of his position of trust or confidence when he engaged in this conduct. Defendant does not question the court's reliance on this factor. The court could have found that this circumstance alone was sufficient to balance the mitigating factors; such a finding would have been within the scope of the court's broad discretion.
The court did not cite only that circumstance, however, to supplement the victim's emotional distress as an aggravating factor. It also agreed with the prosecutor that the victim's particular vulnerability was relevant "in view of the circumstances that the family was going through and what was happening with her younger sister." Defendant contends, however, that the victim was not particularly vulnerable because she "could have easily told her mother" during the period when her mother was not at the hospital. "Since she failed to do so, the conclusion follows that the victim was not any more vulnerable than the usual child molestation victim."
Not only does the conclusion not follow, but the premise itself is flawed. The trial judge's point was not, as defendant suggests, that the victim was vulnerable just because her mother was not at home when the acts occurred; it was that the family was going through an extremely trying time in an effort to keep a young family member alive. The prospect of creating additional family stress could have been viewed as a certain deterrent to telling her mother about defendant's conduct, compounded by the victim's fear of making defendant angry. The court was well within its discretion in taking the family situation into account when it examined the circumstances that might make the victim particularly vulnerable. Its reliance on this factor was not error.
The victim explained to the police that she did not tell anyone earlier because defendant would find out and then get mad.
Thus, at least two viable aggravating facts supported the trial court's sentencing choice: that the victim was particularly vulnerable and that defendant took advantage of a position of trust and confidence. As noted earlier, only one would have been sufficient to balance against the mitigating factors, since the court may weigh the aggravating and mitigating factors in qualitative as well as quantitative terms. On this record, therefore, no abuse of discretion is shown.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.