Filed 12/18/19 P. v. Felix CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

GUADALUPE FELIX,

Defendant and Appellant.

F075094

(Super. Ct. No. LF010490A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge.

Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF THE CASE

In July 2016, Guadalupe Felix was charged in an amended information with one count of continuous sexual abuse of a child under the age of 14 years (A.T.) in violation of Penal Code section 288.5, subdivision (a) (count 3); and two counts of lewd and lascivious conduct upon a child under 14 years of age (A.P. and N.T.) in violation of section 288, subdivision (a) (counts 4 and 5). As to counts 3, 4, and 5, the information further alleged, pursuant to section 667.61, subdivision (e)(5), that Felix committed an offense against more than one victim.

A jury found Felix guilty as charged and found the enhancements to be true.

The trial court denied probation and sentenced Felix to the upper term of 16 years in state prison on count 3, plus two consecutive terms of 15 years to life on counts 4 and 5.

On appeal, Felix contends count 3 was filed beyond the statute of limitations; that the jury was not properly instructed on the defense of accident and which count applied to which victim; that the pretext telephone calls were involuntary and obtained by police coercion; and that the trial court erred when it denied him probation and when it selected the upper term on count 3. Felix also argues that if these issues were forfeited, he was denied effective assistance of counsel. We forego any discussion on forfeiture and address the issues on the merits. We find no error and affirm.

STATEMENT OF THE FACTS

Molestation of A.T.

Sisters A.T., born in 1987, and N.T., born in 1991, lived in a house with their mother at the back of a property in Lamont. Their cousin A.P., born in 1990, lived with her family in the house at the front of the property.

When A.T. was six years old, Felix began dating A.T.’s mother. They later married and Felix moved into their home. On their first date, Felix kissed and hugged A.T.’s mother and, while doing so, blew A.T. a kiss, which scared her. Felix was nice to A.T., but soon became “very touchy” with her. When A.T.’s mother was at work, Felix would rub and grab A.T. and touch her breasts over her clothing.

Before A.T. turned seven years old, Felix drove her to a donut shop. On the way, he had A.T. sit on his lap in the car, saying he would teach her to drive. While on his lap, Felix placed his hands under her shirt. A.T. said, “No,” but Felix grabbed hard and touched her breasts. On another trip to the donut shop, A.T. said it hurt when he touched her “down there,” so Felix licked his hand and rubbed A.T.’s vagina. A.T. could feel Felix’s penis get erect as she sat on his lap. On one occasion, Felix laughed and told A.T. he could not enter the store when they arrived because he would “poke somebody’s eye out.” These trips to the donut shop occurred often during 1993 and 1994, while A.T. was six and seven years old. Felix “continuously” abused A.T. during the trips, telling her “It will feel good, it will feel good.”

On one occasion when A.T. was six or seven years old, she entered the house to use the restroom. Felix was on the bed and told A.T. to come “lay with [him].” Felix removed A.T.’s pants and belt, exposed his penis, and told her he was going to teach her something and to get on top of him. When A.T. said “No” and resisted, Felix pulled her hair and told her “You can like it.” When A.T. screamed, Felix covered her mouth. Felix penetrated A.T.’s vagina on this occasion and on another later occasion as well.

Felix laughed during these incidents and threatened that, if A.T. said something, her sister would feel the same “pain” and her brother would “pay” for it. A.T. did not tell Felix she did not want to drive with him, because he said he would take her younger sister instead, and she did not want that to happen to her. A.T. was scared and did not tell her mother about the abuse.

Molestation of N.T. and A.P.

When A.P. was seven years old, Felix gave her and N.T., who was one month younger than her, driving lessons in his truck. Felix would put A.P. on his lap and touch her body under her pants, including rubbing her vagina. Felix’s penis was erect and he told her he liked how she felt. He asked A.P. if she liked it and she said “No.” After about 20 minutes, Felix had A.P. switch seats with N.T., and he touched N.T. as she sat on his lap.

A.P. recalled three occasions when Felix touched her while they were driving; she was eight years old the last time it happened. The incidents stopped when A.P. told her mother that she did not want any more driving lessons from Felix. On another occasion, when she was 11 years old, she was home sick and Felix came to the house and tried to hug her, but she would not let him. A.P. told her mother, father and grandfather about Felix’s abuse, but no one believed her.

N.T. recalled Felix molesting her during at least five driving lessons, which began in 1997. A.P. was present in the car on most of those occasions. During these times, Felix touched N.T.’s legs, under her clothing on her chest, and on top of her clothing on her vagina. On one occasion, N.T. had a tear in her clothing; Felix laughed and said N.T. was giving him easy access and then touched N.T.’s vagina under her pants. N.T. felt that she had to continue going on these drives with Felix because he threatened to kill her mother. The abuse began when N.T. was six years old and continued “on and off for years.”

Felix would also come into N.T.’s room when everyone else was asleep and touch her under her clothing. This occurred “too many times” for N.T. to remember.

Felix Admits Touching A.T., N.T. and A.P.

In December 2014, Deputy Richard Anderson of the Kern County Sherriff’s Department received a referral from Child Protective Services. In response, he subsequently contacted, interviewed and took statements from A.T., A.P., and N.T. He later arranged for A.T. and N.T. to place pretext telephone calls to Felix.

In the telephone call with A.T., Felix repeatedly admitting touching her. He stated, “I touched you my, love. I did touch you. And—and I’m so ashamed because of that.” He stated, “I only touched you. I acknowledge that I touched you.” Felix also conceded, “I remember very well that I would touch you on your boobs, sweetie.” He did not deny touching A.T. “a lot of times.” Felix claimed he did not remember ever penetrating A.T., but he indicated that “If you’re saying I did it, then I did it, my love. But I don’t remember.” Felix also admitted to A.T. that he had touched A.P. in N.T.’s presence , but denied ever touching N.T. In the call, Felix repeatedly asked A.T. for forgiveness.

In the call with N.T., Felix expressed regret and asked for her forgiveness. At one point, he denied touching N.T., but later agreed to seek help for what he did to N.T. He admitted that he touched N.T. and A.P. when driving: “About when I was driving, it is true. It is—I do remember that … [¶] about when I touched A.[P.] and you tried to—I touched you.” Felix acknowledged he “made mistakes” and “did idiotic things.” He also conceded, “I fucked up that way sweetie. A thousand pardons, sweetie. A thousand pardons. I don’t—I don’t—I don’t know what was going on. I don’t know what was going through my mind, sweetie, but a thousand pardons.”

Defense

Several of Felix’s family members testified that they never saw Felix act inappropriately with A.T., N.T., or A.P.

Felix testified in his own defense and denied ever touching A.T., N.T., or A.P. inappropriately. At one point, Felix insisted A.T. never went on any drives with him. He then said he touched A.T.’s breasts once while in the car when she was nine years old, but he claimed he did so accidentally while adjusting her seat belt.

According to Felix, A.T., N.T., and A.P.’s testimonies were all lies and the charges against him were a “conspiracy.” He thought A.T. and N.T. concocted their testimonies because they wanted to prevent him from moving back to Mexico. And he thought A.P. concocted her testimony because she was upset at rumors that he had had an affair with A.P.’s mother. Felix testified that he admitted touching the victims during the pretext calls because he was tired and he had been questioned and attacked by N.T. in the months preceding the calls.

DISCUSSION

I. STATUTE OF LIMITATIONS
II.
Felix first contends the standard six-year statutory period proscribed by section 800 expired on the count 3 continuous sexual abuse allegation long before the complaint was filed in 2015. He points out that, while the count 3 offense was charged to have occurred between December 1, 1994 and August 30, 2001, the prosecution’s evidence “did not come close to establishing any such conduct beyond 1995, at the latest,” and therefore was beyond the applicable statute of limitations.

As acknowledged by respondent, the allegations as to A.T. occurred over the course of about two years ending, at the latest, in 1995 when A.T. was seven years old, but Felix was not charged until February of 2015. At the time of the offenses, the statute of limitations was six years, subject to a one-year extension when a victim first reports the offenses to law enforcement. Specifically, then section 803 provided an extension of the statute of limitations for certain sex offenses—including violations of section 288.5—allowing the filing of a criminal complaint within one year of a report to a law enforcement agency by a person alleging he or she was the victim of such an offense under the following circumstances: (1) the victim was under 18 years of age at the time of the offense, (2) the limitations period had expired, (3) the offense involved substantial sexual conduct, and (4) there was independent evidence corroborating the victim’s allegation. (See former § 803, subd. (f); former § 803, subd. (g), added by Stats. 1984, ch. 1270, § 2, as amended by Stats. 1993, ch. 390, § 1 (former § 803, subd. (g)).)

In his reply brief, Felix notes that respondent agrees that the six-year statute of limitations had run, but argues the statutory requirements of section 803, subdivision (g) are not met here. We address each statutory requirement and disagree.

First, the complaint was filed on February 9, 2015, and Felix was arraigned the same day. This was well within a year of A.T.’s reporting Felix’s abuse to Deputy Anderson on December 26, 2014. Felix takes issue with the fact that A.T. did not come forward with allegations against Felix, but instead that she was contacted by law enforcement to inquire about the possibility of being molested. Felix contends that the fact that A.T. did not come forward on her own detracts from the credibility of her claims and is not within the intent of the statute.

In support of his argument, Felix relies on Ream, supra, 48 Cal.App.4th 1812, which stated, in part:

“The relevant language of section 803(g) is clear and unambiguous. A prosecutor may file a complaint charging any of the specified sex offenses within 1 year of the date of ‘a report to a law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of’ the offense. The statute makes no reference to a report by a person who is not a victim. Indeed, the statute required ‘independent evidence that clearly and convincingly corroborates the victim’s allegation’ and proscribes evidence not admissible during trial ‘to corroborate the victim’s allegation.’ (Italics added.)” (Ream, supra, at p. 1818.)

Ream, however, involved a defendant who was charged with lewd and lascivious conduct after his ex-wife provided law enforcement with copies of photographs of the defendant and his daughter, who was apparently asleep. The child denied any molestation, and the Court of Appeal concluded the prosecution could not be initiated upon the complaint of someone other than the alleged victim. (Id. at pp. 1816, 1819–1820.) Here, Deputy Anderson received a referral from Child Protective Services and contacted A.T. She then reported her experiences with Felix. We do not read Ream or the statute to state that the victim must approach law enforcement, not the other way around, in order to report criminal conduct against the offender.

Second, there is no dispute that A.T. was under the age of 18 at the time of the offense. A.T. testified that the offenses occurred when she was six or seven years old.

Third, the six-year limitation period had expired in 2001, long before the complaint was filed in February 2015. Furthermore, in 2000, the Legislature enacted subdivision (h) of section 803, which provided that any crime enumerated in the then current version of section 290, subdivision (a)(2)(A), for which the statute of limitations period had not yet expired as of January 1, 2001, would be 10 years from the commission of the offense. (Former § 803, subd. (h)(1), added by Stats. 2000, ch. 235, § 1.) Former section 290, subdivision (a)(2)(A) included violations of section 288.5 within its scope. (Stats. 2000, ch. 649, § 2.5.) Thus, even if we were to consider the latest date charged in the amended information, August 30, 2001, to determine the commission of the offense, the statute of limitations would expire on August 30, 2011, also long before the complaint was filed in February 2015.

Fourth, Felix rubbed A.T.’s vagina on numerous occasions, and inserted his penis into her vagina on two occasions. This is “substantial sexual conduct” under section 1203.066. (§ 1203.066, subd. (b); People v. Terry (2005) 127 Cal.App.4th 750, 770–772 [rubbing victim’s vagina over clothing is substantial sexual conduct].)

And fifth, there is independent evidence corroborating A.T.’s report of abuse. Felix himself corroborated A.T.’s accounts when he admitted touching her. And N.T. and A.P.’s accounts of abuse also independently corroborated A.T.’s allegations. Felix disagrees, arguing that the “clear and convincing” “independent evidence” is missing here. According to Felix, he denied the contact described by A.T., and only admitted it when he was “goaded repeatedly.” And, he claims, the other claims by N.T. and A.P. cannot be considered substantial corroboration, because they knew each other, were all contacted by the police, and never came forward independently to complain about Felix’s claimed behavior. The jury, however, heard testimony from A.T., N.T., and A.P., as well as Felix, and it was up to them to determine the credibility of each witness. (People v. Ashley (1954) 42 Cal.2d 246, 266.)

Thus, contrary to Felix’s assertion, we find no violation of the statute of limitations, and reject his claim to the contrary.

III. ACCIDENT DEFENSE JURY INSTRUCTION
IV.
At trial, Felix testified that he accidentally touched A.T.’s breasts once in the car: “The seat belt. So when she asked me—when she was going to have—first ask her mother, I ironically said to her when the seat belt raises up like this, because, you know my wife has large breasts. I ironically was going to raise the seat belt and I unintendedly touched her.” Felix also testified that he once grabbed A.P.’s waist when she slipped while sitting on his lap during a driving lesson. Based on this testimony, Felix maintains the trial court erred by failing to instruct the jury on the defense of accident. Felix did not request such an instruction below and respondent contends no error occurred. We independently review a claim that a trial court erred in failing to give an instruction. (People v. Booker (2011) 51 Cal.4th 141, 181.)

Trial courts have a limited duty to instruct, sua sponte, on particular defenses. (People v. Barton (1995) 12 Cal.4th 186, 195.) That duty arises “‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citations.]” (Ibid.) “‘Substantial evidence’ in this specific context is defined as evidence which is ‘sufficient to “deserve consideration by the jury, i.e., ‘evidence from which a jury composed of reasonable men could have concluded’” that the particular facts underlying the instruction did exist.’ [Citations.]” (People v. Burnham (1986) 176 Cal.App.3d 1134, 1139.)

An accident defense generally “‘amounts to a claim that the defendant acted without forming the mental state necessary to make his or her actions a crime.’ [Citation.]” (People v. Jennings (2010) 50 Cal.4th 616, 674.) Accordingly, our Supreme Court has held that where “the jury received complete and accurate instructions on the requisite mental element of the offense, the obligation of the trial court … to instruct on accident extend[s] no further than to provide an appropriate pinpoint instruction upon request by the defense.” (People v. Anderson (2011) 51 Cal.4th 989, 998.) Here, with regard to the requisite mental state, the jury instructions were not ambiguous, but were “complete and accurate,” and Felix does not contend otherwise. Furthermore, in closing, defense counsel never asserted accident as a defense.

Even if error occurred, the error was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) An accident instruction would have told the jury to find Felix not guilty if he acted accidentally without the intent required for the crimes. (§ 26; CALCRIM No. 3404.) The jury was instructed that a person acts with the wrongful intent when he or she intentionally does a prohibited act (CALCRIM No. 252) and then found Felix guilty of acting with the requisite intent under additional instructions given: that he willfully or on purpose touched A.T. “with the intent to sexually arouse” himself or A.T. (CALCRIM No. 1120); and that he willfully or on purpose touched A.P. and N.T. “with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires” of either himself or A.P. or N.T. (CALCRIM No. 1110). As such, the jury necessarily rejected any notion that Felix’s actions were accidental.

In addition, the evidence that Felix’s actions were not accidental was overwhelming. A.T., N.T., and A.P. all testified consistently about Felix’s extensive molestation. And Felix himself corroborated this testimony when he admitted molesting each victim during the pretext telephone calls.

In light of the instructions as a whole and the evidence at trial, any error in failing to instruct regarding accident was harmless beyond a reasonable doubt.

V. VICTIM IDENTIFICATION IN JURY INSTRUCTIONS
VI.
Felix next contends the trial court’s instructions failed to specify which charged crime applied to which victim. According to Felix, “[t]he lack of such specificity makes it unclear as to whether the jury indeed was relying on accumulated evidence to reach its verdict, in particular as to the continuous sex abuse count, and as such, tainting the multiple victim finding.” We find no error.

Here, the instruction on continuous sexual abuse (CALCRIM NO. 1120) was given, in relevant part, as follows, “Defendant is charged in Count 3 with continuous sexual abuse of a child under the age of 14 …,” without identifying the victim. Similarly, the instruction on lewd and lascivious conduct (CALCRIM No. 1110) was given, in relevant part, as follows, “Defendant is charged in Counts 4 and 5 with committing a lewd or lascivious act on a child under the age of 14 .…,” also without identifying the victim of each count. However, while it is true that the instructions as given did not specify which counts applied to which victim, a defendant’s failure to request a clarifying or amplifying instruction at trial forfeits any argument on appeal that the instruction given was ambiguous or incomplete. (People v. Turner (2019) 37 Cal.App.5th 882, 888.)

In any event, there is no reasonable likelihood the jury would have been misled about which count applied to which victim. The information, which was read to the jury before opening statements, identified the victim in count 3 as “Jane Doe” with a birth year of 1987; the victim in count 4 as “Jane Doe” with a birth year of 1990; and the victim in count 5 as “Jane Doe” with a birth year of 1991.

At trial, each victim testified by their given names and stated their respective birthdate.

In closing, the prosecutor summarized the charges as follows:

“So on Count 3—and you guys might want to write this down, because each count is alleged as Jane Doe and their birthday. And I don’t know if you wrote their birthdays down when they were testifying, but that is kind of important in this case because Jane Doe in Count [3] is [A.T.], her birthday is …87. [¶] And Jane Doe in Count 4 is [A.P.] Her birthday is …90. [¶] And then Jane Doe in Count 5 is [N.T.]. And her date of birth is … 1991.”

And while the jury instructions indicate Felix was charged with committing continuous sexual abuse of a child in count 3 and performing a lewd or lascivious act on a child in counts 4 and 5, without specifying which charge applied to which victim, the verdict forms, identified which count applied to which victim based on their respective birthdays.

We find no error.

VII. ADMISSION OF PRETEXT CALLS
VIII.
Felix next contends the pretext calls should not have been admitted because they were “the result of coercive police tactics which took advantage of the fact that he was at work and which played on his sense of sympathy for his obviously distraught [step]daughters.” We find no error.

Felix contends his stepdaughters, A.T. and N.T., were acting as police agents in making the calls and cites cases pertaining to psychological coercion by law enforcement officers or their agents. (See Maine v. Moulton (1985) 474 U.S. 159; Brewer v. Williams (1977) 430 U.S. 387.) However, these cases concerned interrogations conducted in violation of the Sixth Amendment because they occurred after the right to counsel had attached. (See Massiah v. United States (1964) 377 U.S. 201, 206 [Sixth Amendment violated where federal agents elicited statements from defendant in the absence of his counsel after he had been indicted].) Those cases are inapposite. Here, police did not arrest Felix until later, and the right to counsel had not yet attached at the time of the pretext call.

Even assuming A.T. and N.T. were agents of law enforcement, nothing they said or did during the call constituted coercion, and nothing in the external circumstances of the call constituted coercion. Felix was neither in custody nor in a custodial setting. He was not questioned by law enforcement officers sitting in front of him, as usually happens in a typical interrogation. Rather, he was talking on the telephone with his stepdaughters. Neither A.T. nor N.T. made any promises of leniency that they would not report the molestation to the police if Felix confessed. The fact that he was at work and may have been reluctant to talk weighs against a finding that his statements were involuntary. Furthermore, his admissions to some acts but denial of others, and the claim that he could not remember some of the abuse, reinforced the voluntariness of his statements.

Based on the totality of the circumstances, we conclude the record shows Felix was not coerced into making any statements in the pretext call; he made all statements during the call voluntarily. The trial court did not err by admitting the audio of the calls and his claim to the contrary is without merit.

IX. FAILURE TO GRANT PROBATION
X.
Felix next challenges the trial court’s decision to deny him probation at sentencing. We find no abuse of discretion.

At sentencing, defense counsel did not request probation for Felix, but instead asked that the trial court impose a principal term of 15 years to life and that “the other counts run concurrent.”

In addressing the possibility of probation, the trial court stated that it “must consider the law in place at the time of the offense” and noted that, in order to be eligible for probation, Felix had to satisfy the criteria in then section 1203.066, subdivision (c). Citing People v. Wills (2008) 160 Cal.App.4th 728 (Wills), the trial court concluded Felix did not satisfy the criterion that the victim still be a child at the time of sentencing.

In addressing probation further, the trial court stated that, while this was Felix’s first felony conviction, he was considered “absolutely unsuitable for a grant of felony probation, based on the aberrant circumstances of the present offense wherein the defendant engaged in an inappropriate sexual contact with his stepdaughters and niece when they were six or seven years of age.” The trial court found a state prison sentence appropriate because Felix’s “behavior and victimization of multiple children makes him a danger to the community.”

Felix contends the trial court erroneously followed Wills when determining he was ineligible for probation, and that the trial court abused its discretion when it found him unfit for probation under the circumstances of his case.

Imprisonment is required, and probation ineligibility “is absolute,” for many section 288 violations described in section 1203.066, subdivision (a). (People v. Jeffers (1987) 43 Cal.3d 984, 991–992.) However, as to some of the covered crimes, including those involving multiple victims under section 1203.066, subdivision (a)(7), the Legislature was motivated by various policy considerations to enact a limited exception to the general bar on probation. Accordingly, former subdivision (c) of section 1203.066 provided that, if the defendant is the victim’s “relative” or “member of the victim’s household,” and if other conditions are met, a trial court may exercise discretion to grant probation to a defendant convicted of a section 288 violation. (People v. Hammer (2003) 30 Cal.4th 756, 765–766; People v. Manners (1986) 180 Cal.App.3d 826, 833.)

Consistent with the express terms of former section 1203.066, subdivision (c), probation was available as a sentencing choice “[o]nly when a defendant can establish he or she meets all [five] criteria” in this provision. (People v. Groomes (1993) 14 Cal.App.4th 84, 89, and cases cited.) This case involves the criteria that probation of Felix, who was a member of the victim’s household, be “in the best interest of the child.” (Former § 1203.066, subd. (c)(2).)

Here, as noted by the trial court, the victims were no longer children at the time of sentencing and, in keeping with the reasoning in Wills, it had no authority to grant Felix probation. (Former § 1203.066, subd. (c)(2); Wills, supra, 160 Cal.App.4th at pp. 737–740.) As Wills held, “the plain language of former section 1203.066(c)(2) evinces the Legislature’s intent that a sentencing court shall have no authority, and thus no legal discretion, to grant probation to a defendant … in a case in which the molestation victim is no longer a child at time of sentencing.” (Wills, supra, at p. 740.) “Had the Legislature intended that such a determination be based on circumstances that existed at the time the defendant molested the victim, it could have so provided.” (Id. at p. 737.) Thus, “the sentencing court is unable to make ‘all’ of the findings specified in former subdivision (c) of section 1203.066, … and thus is not authorized to grant probation to a defendant.” (Id. at pp. 737–738.) The trial court here, consistent with Wills, correctly determined Felix was ineligible for probation because his victims, in their mid-20s, were no longer children at the time of sentencing. Felix contends Wills was wrongly decided and invites this court not to follow it. We decline the invitation.

Felix also contends the trial court abused its discretion when it “equated commission of the charged crimes with unsuitability for probation.”

“A sentencing court enjoys broad discretion in determining whether to grant or deny probation.” (People v. Mehserle (2012) 206 Cal.App.4th 1127, 1157.) “‘The 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.’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977–978.)

The criteria affecting a trial court’s decision to grant or deny probation are set forth in California Rules of Court, rule 4.414. Factors relating to the crime include the nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; the vulnerability of the victim; whether the defendant inflicted physical or emotional injury on the victim; whether the defendant took advantage of a position of trust or confidence to commit the crime; and whether the defendant was an active or passive participant in the crime. (Rule 4.414(a)(1), (3), (4), (6) & (9).) Factors relating to the defendant include prior record of criminal conduct; prior performance and present status on probation; willingness to comply with the terms of probation; ability to comply with reasonable terms of probation; whether the defendant is remorseful; and the likelihood the defendant will be a danger to others if he is not imprisoned. (Rule 4.414(b)(1), (2), (3), (4), (7), & (8).)

These criteria “must be considered by the sentencing judge, and will be deemed to have been considered unless the record affirmatively reflects otherwise.” (Rule 4.409.) A trial court’s denial of probation after consideration of these criteria on the merits is almost invariably upheld. (People v. Mehserle, supra, 206 Cal.App.4th at p. 1157.) A single aggravating factor is sufficient to support denial of probation. (People v. Robinson (1992) 11 Cal.App.4th 609, 615, disapproved on another ground in People v. Scott (1994) 9 Cal.4th 331, 353, fn. 16; People v. Castellano (1983) 140 Cal.App.3d 608, 615.)

We review a trial court’s decision to grant or deny probation under the deferential abuse of discretion standard. (People v. Ferguson (2011) 194 Cal.App.4th 1070, 1091.) “In reviewing [a trial court’s determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court’s order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.” (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825.)

Here, the trial court identified more than one factor: the vulnerability of the young victims, the fact Felix took advantage of a position of trust to commit the crimes, and that he was a danger to the community. Although there were factors favorable to defendant that the court could have used to support a decision granting probation, there were other factors that supported its determination to deny probation. We cannot say the trial court’s assessment of these factors and its decision to deny probation was “irrational or arbitrary.” (See People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 977.)

XI. IMPOSITION OF UPPER TERM
XII.
Lastly Felix contends the trial court relied on improper aggravating factors and failed to consider mitigating factors when imposing the upper term for his count 3 continuous sexual abuse conviction.

At sentencing, the trial court stated it had reviewed the probation report and the attached Static-99 evaluation. As factors in mitigation, the trial court found Felix had no prior criminal felony record and had performed satisfactorily on previous probation. As factors in aggravation, the trial court noted Felix had abused his position of trust with the victim and that the crimes involved a high degree of callousness. Defense counsel requested a concurrent term for count 3, but did not request a low or middle term. The trial court determined that “[a]fter review of the factors in aggravation versus mitigation, the upper term in sentencing is justified and will be ordered for Count 3.”

“When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court…. In determining the appropriate term, the court may consider the record in the case, the probation officer’s report, other reports, … and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” (Former § 1170, subd. (b).)

“Even with the broad discretion afforded a trial court under the amended sentencing scheme, its sentencing decision will be subject to review for abuse of discretion. [Citations.] The trial court’s sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an ‘individualized consideration of the offense, the offender, and the public interest.’ [Citation.] As under the former scheme, a trial court will abuse its discretion under the amended scheme if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.” (People v. Sandoval (2007) 41 Cal.4th 825, 847.)

Felix challenges the trial court’s reliance on several of the aggravating factors it used to impose the upper term.

Felix first maintains the trial court erred when it considered A.T.’s young age because her age was an element of the crime. Rule 4.420(d) provides that an element of the crime on which punishment is being imposed may not be used to impose a particular term. An age range is an element of the offense alleged in count 3. However, a victim’s vulnerability is a factor to be considered in aggravation. (Rule 4.421(a)(3).) And only when a child’s vulnerability is solely based on his or her age and age is an element of the offense is a trial court barred from considering a child’s particular vulnerability. (People v. Ginese (1981) 121 Cal.App.3d 468, 477; People v. Flores (1981) 115 Cal.App.3d 924, 927.) Here, the trial court observed that Felix “took advantage of a position of trust in that he was a relative to the victims, stepfather and an uncle,” and that Felix exhibited a high level of cruelty because he threatened to kill or harm the victim’s relatives if they reported the molestations. Although the trial court noted the victims’ age at one point, the trial court’s comments, as a whole, reflect its decision was based on A.T.’s vulnerability and how Felix capitalized on his position as A.T.’s stepfather, not merely her age.

Felix also claims the trial court arbitrarily found his molestation of A.T. displayed a high degree of cruelty and callousness. (Rule 4.421(a)(1).) But the evidence at trial was that Felix routinely molested A.T.; he ignored her pleas to stop; on occasion he pulled her hair or grabbed her hard; he smothered her screams; he joked about his erect penis; and he threatened A.T.’s sister with the same “pain” if A.T. reported the crimes. While facts that accurately describe and apply to all child molesters are not sufficient to constitute an aggravating factor (People v. Fernandez (1990) 226 Cal.App.3d 669, 682–683), the evidence here revealed an enhanced level of callousness and cruelty which the trial court properly considered.

Felix also contends the trial court unreasonably concluded Felix took advantage of a position of trust because “any child that is known to the offender and is left in his care would be considered in a position of trust.” (Rule 4.421(a)(11).) In essence, Felix is arguing that a child molester who abuses a victim he knows and cares for is so routine that those facts cannot satisfy the requirement that an aggravating factor make the offense “‘distinctively worse than the ordinary.’” (People v. Black (2007) 41 Cal.4th 799, 817.) Here, however, the evidence was that A.T. was more than a “child that is known to [Felix] and is left in his care.” A.T. called Felix “Dad” and lived with him, her mother and her sister for years. Courts have repeatedly found that a parent or stepparent molesting one of his children qualifies for the aggravating factor of taking advantage of a position of trust. (See, e.g., People v. Burbine (2003) 106 Cal.App.4th 1250, 1262–1263; People v. Franklin (1994) 25 Cal.App.4th 328, 337–338; People v. Clark (1992) 12 Cal.App.4th 663, 666.)

Finally, Felix argues that the trial court failed to consider some mitigating factors, including his favorable score on the Static-99 evaluation, his lack of a prior criminal record, and the remoteness of his crimes. However, the trial court expressly noted each of these factors, stating it had read and considered the probation report and the Static-99 report. While a trial court must consider applicable aggravating and mitigating factors, it may minimize or disregard mitigating factors without stating its reasons. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583; People v. Jones (1985) 164 Cal.App.3d 1173, 1181.) “Absent an explicit statement by the trial court to the contrary, it is presumed the court properly exercised its legal duty to consider all possible mitigating and aggravating factors in determining the appropriate sentence.” (People v. Oberreuter (1988) 204 Cal.App.3d 884, 888, disapproved on other grounds in People v. Walker (1991) 54 Cal.3d 1013, 1022.) While the trial court may not have expressly discussed all of the mitigating factors, it does not mean it did not consider them and we find no error.

DISPOSITION

The judgment is affirmed.

FRANSON, Acting P.J.

WE CONCUR:

PEÑA, J.

SNAUFFER, J.