Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC151381
Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I.
Introduction
Defendant Alan Lawrence Ager (Ager) appeals from his conviction by plea of continuous sexual abuse of a child. He maintains that the court erred in rejecting one of the mitigating factors he asserted at sentencing, and abused its discretion in imposing the upper term. We affirm.
II.
Procedural Background
The Marin County District Attorney charged Ager by information with one count of engaging in three or more acts of substantial sexual conduct with a child less than 14 years of age (Pen. Code, § 288.5, subd. (a)) and two counts of committing a lewd act on a child under 14 years of age. (§ 288, subd. (a).) The information alleged that all counts involved substantial sexual conduct, and that Ager had six prior felony convictions. (§§ 1203.066, subd. (a)(8), 1203, subd. (e)(4).)
All further undesignated statutory references are to the Penal Code unless otherwise indicated.
Ager entered a plea of guilty to the violation of section 288.5, with a Harvey waiver as to the remaining counts, which were dismissed. He admitted the allegations of substantial sexual conduct, making him ineligible for probation. He also admitted the six prior convictions, two for marijuana cultivation, and one each for possession for sale, distribution of marijuana, maintenance of a location for unlawful activities and a federal conviction for structuring currency transactions. (Health & Saf. Code, §§ 11358-11360, 11366; 31 U.S.C. § 5324.)
People v. Harvey (1979) 25 Cal.3d 754.
The court imposed the upper term of 16 years. This timely appeal followed.
III.
Factual Background
The facts are obtained from the preliminary examination transcript and probation report. Ager lived in one of two homes on his property in Nicasio. His girlfriend lived in the other with her two daughters, one of whom is Ager’s minor child. The other daughter, V.R., is the mother of the victim (Doe) in this case, a son born in 1999.
The parties stipulated that the evidence adduced at the preliminary examination formed the factual basis for Ager’s plea.
The victim is referred to as Doe in the preliminary examination transcript, and we continue to do so.
On December 25, 2006, V.R. entered her bedroom and found Ager and Doe sitting on the edge of the bed. Doe’s pants were around his knees. V.R. asked “What’s going on here?” Both Doe and Ager appeared nervous, and Doe stated he “just ha[d] to use the bathroom.” Because they had houseguests at the time, V.R. did not question Doe until later. After everyone left, V.R. asked Doe if anyone ever touched him. He told her that Ager “always plays with my [penis.]”
Police questioned Ager, who admitted being in V.R.’s bedroom with Doe on Christmas day 2006. Ager stated that Doe was lying on the bed, and Ager “started stroking his penis.” Ager told police that Doe’s aunt entered the room and startled them. Doe’s aunt took him downstairs to get some food, where Doe stayed for 30 to 45 minutes. “[A]t some point during that time... Doe disappeared.” Doe’s mother found him and Ager in the upstairs bedroom. Ager admitted that “[h]e again began masturbating... Doe [¶] [a]nd then … Doe’s mother came in.”
Ager told police he first molested Doe at a relative’s birthday party in Pittsburg, which was later determined to be on October 1, 2005. Doe was five years old at that time. Ager said Doe put Ager’s “hand on his penis and [Ager]... felt that from that point on he had permission to do that.” Ager told police he had touched Doe’s penis “a lot,” at least 30 times. He admitted thinking of ways to have contact with Doe, and explained that Doe was “very sexual.”
After his plea but prior to sentencing, Ager was incarcerated due to revocation of his bail bond. Officers at the Marin County Jail found two California driver’s licenses in Ager’s possession, one with his name and picture, and one with his picture and the name Douglas Shumate. Ager also had a California identification card with his picture and Douglas Shumate’s name, and a social security card with Shumate’s name. Ager stated he “had no intention to flee.”
IV.
Discussion
Ager maintains that the trial court erred in sentencing him to the upper term of 16 years. He argues that the court abused its discretion in imposing the aggravated term, and that no substantial evidence supports “the court’s finding that the offense was not less serious than other continuous abuse cases.”
We review the court’s decision to impose the upper term for abuse of discretion. The burden is on Ager “ ‘ “to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 376-377, citing People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
Appellant suggests that a higher level of scrutiny is required, citing People v. Jacobs (2007) 156 Cal.App.4th 728 and City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287 for the proposition that “[e]ven a rational decision can be an abuse of discretion.” In Drew the court noted that“ ‘ “The discretion of a trial judge is not a whimsical, uncontrolled power, but a legal discretion, which is subject to the limitations of legal principles governing the subject of its action, and to reversal on appeal where no reasonable basis for the action is shown. [Citation.]” ’ [Citations.] The scope of discretion always resides in the particular law being applied, i.e., in the ‘legal principles governing the subject of [the] action....’ Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an ‘abuse’ of discretion.” (Drew, supra, at p. 1297.)
The court indicated it was basing imposition of the upper term on the following factors: “the child in this case was particularly vulnerable due to the very young age of the child. [¶] [T]he manner in which the crimes was committed does indicate some planning. Under 408, I do agree with the Probation Department’s assessment that the number of offenses far exceeds the minimum number required for the offense [of] which the defendant was convicted. [¶]... [T]he offense here is much more serious than defendant’s prior convictions, but I don’t really see the prior convictions as numerous, and they are somewhat dated, so I do give it some weight, but I give it slight weight.” The court found the only mitigating factors were defendant’s satisfactory performance on probation, and the fact that he admitted wrongdoing when contacted by police.
Ager argues that the aggravating factors cited by the court “d[id] not ‘make the offense distinctively worse than it would ordinarily have been,’ ” citing People v. Fernandez (1990) 226 Cal.App.3d 669, 682-683. In Fernandez, the defendant was convicted of 155 counts of lewd and lascivious acts on a child, and one count of lewd conduct by force. (Id. at p. 674.) The court imposed the aggravated term on all counts for a total prison term of 330 years, incorporating the probation report by reference. (Id. at pp. 681-683.) The trial court stated that the defendant’s “ ‘repeated deviant behavior’ shows an inability or refusal to ‘conform to the mores of society’ and [his]... ‘behavior is beyond all acceptable norms of society that we live in today.’ ” (Id. at p. 682.) On appeal, the court held that, in addition to the error of simply incorporating the probation report by reference, the trial court also erred in basing the aggravated terms on the two cited factors. It explained that those reasons “accurately describe and apply to all persons convicted of violations of section 288(a), regardless of the particular facts, and do not indicate why defendant’s conduct deserves harsher punishment than that of any resident child molester.” (Id. at pp. 682-683.)
While Ager concedes that this “case was made worse by the fact that the abuse... started when [Doe] was just shy of his sixth birthday,” he asserts that the fact that he admitted committing over 30 lewd acts on Doe does not make his crime distinctively worse. He argues “it’s a rare case when the offense involved the minimum three touchings required.” Ager has cited no authority or evidence for this claim. While it “is established that a circumstance that is an element of the substantive offense cannot be used as a factor in aggravation..., [a] sentencing factor is only an element of the offense... if the crime as defined by statute cannot be accomplished without performance of the acts which constitute such factor.” (People v. Burbine (2003) 106 Cal.App.4th 1250, 1261-1262.) The fact that Ager admitted committing 10 times the minimum number of acts of sexual abuse required to violate the statute certainly justifies the court’s finding that this was an aggravating factor.
Ager next claims that the court’s rejection of his claimed mitigating factor that he “ ‘avoid[ed] harm to the minor’... was not supported by substantial evidence.” At sentencing, Ager claimed that he exercised caution to avoid harm or that no harm was done or threatened against the victim. He maintained that he “never threatened the victim, never told the victim not to tell anyone, and [in] fact, never really spoke to the victim during the incidents,... [it] was considerably less physically invasive than other cases of this type,... [and] the victim was never asked nor did the victim ever touch Mr. Ager in any sexual way.”
Ager’s claim is meritless. First, “ ‘[t]here is no requirement the court indicate its reasons for rejecting a mitigating factor.’ ” (People v. Charron (1987) 193 Cal.App.3d 981, 994, quoting People v. Davis (1980) 103 Cal.App.3d 270, 281.) And, while a court’s factual findings must be supported by substantial evidence, the court made no factual finding regarding Ager’s claimed avoidance of harm because there was no factual dispute about the truth of Ager’s allegations regarding what he did not do. Moreover, the lack of evidence of Ager threatening the victim or committing more physically invasive crimes is not the equivalent of “exercis[ing] caution to avoid harm.” (Cal. Rules of Court, rule 4.423(a)(6).) There was, however, evidence of psychological harm to Doe, who “was in therapy for some time.” Additionally, even where circumstances are found which may be considered “exercis[ing] caution to avoid harm,” the trial court is not required to use them as a mitigating factor. (See People v. Reid (1982) 133 Cal.App.3d 354, 371 [defendant’s decision to use a toy gun could have been considered a mitigating factor, but court not required to do so].) The court could reasonably conclude that Ager’s failure to engage in even more egregious acts with Doe was not a mitigating factor in this case.
People v. Davis, supra, 103 Cal.App.3d 270, disapproved on other grounds in People v. Sumstine (1984) 36 Cal.3d 909, 921, footnote 8 and People v. Wolcott (1983) 34 Cal.3d 92, 106, footnote 6.
Ager has not met his burden of demonstrating that the court’s sentencing decision was “irrational or arbitrary.” (People v. Carmony, supra, 33 Cal.4th at pp. 376-377.) While a single factor in aggravation will support imposition of the upper term, (People v. Cruz (1995) 38 Cal.App.4th 427, 433) the court here found four factors in aggravation and two in mitigation, and properly engaged in both a quantitative and qualitative analysis. Accordingly, the trial court did not abuse its discretion in sentencing Ager to the upper term.
V.
Disposition
The judgment is affirmed.
We concur: JONES, P. J., NEEDHAM, J.
“Abuse of discretion has at least two components: a factual component... and a legal component. [Citation.] This legal component of discretion was best explained long ago in Bailey v. Taaffe (1866) 29 Cal. 422, 424: ‘The discretion intended, however, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles.’ ” (Concord Communities v. City of Concord (2001) 91 Cal.App.4th 1407, 1417.)
There is nothing inconsistent in these cases, however, with the general rule articulated in Carmony, where our Supreme Court further observed that because “ ‘all discretionary authority is contextual’ [citation], we cannot determine whether a trial court has acted irrationally or arbitrarily... without considering the legal principles and policies that should have guided the court’s actions.” (People v. Carmony, supra, 33 Cal.4th at p. 377, quoting Alvarez, supra, 14 Cal.4th at p. 978.)
As discussed post, appellant does not demonstrate that the trial court ignored applicable legal principles and policies in arriving at its sentencing choice.