Filed 5/22/15 P. v. Ward CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C073850

         v.                                                                     (Super. Ct. No. CM036005)

MATTHEW SHANNON WARD,

                   Defendant and Appellant.


         Defendant Matthew Shannon Ward pled no contest to failing to register as a sex
offender and two counts of annoying or molesting a child in exchange for dismissal of
two other criminal charges. He was sentenced to serve three years in state prison. On
appeal, defendant contends the trial court abused its discretion by ignoring mitigating
circumstances and relying on improper aggravating circumstances in imposing the upper
term. Defendant alternately contends he received ineffective assistance of counsel. We
affirm the judgment.




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                                           FACTS
       In November 2011, law enforcement officers responded to a report of defendant
sexually abusing his 13-year-old stepdaughter. Defendant was divorced from the
victim’s mother, but continued to live in their home. According to his ex-wife and the
victim, defendant isolated the victim from her siblings and her mother, then would
fondle her breasts and her buttocks. This abuse had been going on for the past two years.
The last incident of abuse occurred a week prior when defendant pulled down the
victim’s pants and put his penis “between the lips of her vagina,” then stated he had gone
too far.
       The victim told law enforcement officers she was scared and, as a result of the
abuse, kept to herself. The victim later told investigators that defendant told her “if she
ever told anyone, she would regret it.” She was too scared to tell defendant to stop, and
she had nightmares about him killing her family.
       Further investigation revealed defendant was a convicted sex offender1 and failed
to update his registration in 2011. When law enforcement officers spoke to defendant, he
denied abusing his stepdaughter. Defendant also said he had registered in 2011 but could
only produce his 2010 registration card.
       On March 15, 2012, the People charged defendant with two counts of
committing lewd acts upon a child (§ 288, subd. (a)) and one count of failing to
comply with the annual sex offender registration requirements (§§ 290.12, subd. (a),
290.18, subd. (b)). On March 29, 2012, defendant waived his right to a preliminary
examination.



1      In 2002, defendant was convicted on two counts of committing lewd and
lascivious acts on a child by use of force, violence, duress, menace, or fear of immediate
and unlawful bodily injury to the child or another person (Pen. Code, § 288, subd. (b)(1);
undesignated statutory references are to the Penal Code) and unlawful sexual intercourse
with a child three years younger than defendant (§ 261.5, subd. (c)).

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       In February 2013, the information was amended to include two misdemeanor
charges of annoying or molesting a child. (§ 647.6.) Defendant then pled no contest to
the newly added misdemeanor charges and the felony charge of failing to annually update
his sex offender registration. In exchange for his plea, the remaining sexual abuse
charges were dismissed with a Harvey2 waiver.
       Prior to sentencing, the probation department issued a report recommending the
trial court deny defendant probation and sentence defendant to serve the upper term of
three years in state prison. In reaching its recommendation, the probation department
relied on the following aggravating factors: (1) defendant knowingly failed to register as
a sex offender; (2) he was out of compliance with registration when he sexually abused
his stepdaughter; (3) he molested his stepdaughter continuously for more than one year;
(4) he threatened his stepdaughter if she disclosed the abuse; (5) he planned the abuse,
waiting for his ex-wife to leave the home before sexually abusing his stepdaughter; (6) he
violated a position of trust as the child’s stepfather and caregiver; and (7) he has a
significant history of committing similar offenses.3 The probation department also noted
as a mitigating circumstance that defendant’s prior performance on probation was
satisfactory.
       At sentencing, the People argued the upper term was appropriate because
defendant took advantage of a person who was vulnerable and used his relationship with
that child to exploit her vulnerabilities. The defendant filed a statement in mitigation
arguing for a grant of probation. In so arguing, defendant said he was medically unfit to
serve time in state prison, took responsibility early in the process, and noted his prior



2      People v. Harvey (1979) 25 Cal.3d 754, 758 (Harvey).
3      In addition to his convictions for sexually abusing children in 2002, defendant was
convicted of corporal punishment of a child resulting in a traumatic condition (§ 273,
subd. (d)) in 2000 and a misdemeanor registration offense in 2005.

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performance on probation was satisfactory. Defendant also objected to the People
using the facts of the dismissed charges to aggravate the offense to which he pled no
contest.
       After considering the probation report, defendant’s medical records, defendant’s
statement in mitigation, the victim’s statement, and the argument of counsel, the trial
court imposed the upper term of three years. The court explained its decision: “Court
has reviewed the circumstances in aggravation set forth in the Rules of Court and the
circumstances in mitigation set forth in [the] Rules of Court. After careful consideration,
the Court finds that, on balance, the circumstances in aggravation do outweigh the
circumstances in mitigation, and the upper term is the appropriate term.
       “Specifically, the Court would note the recidivism factors, including the
defendant’s prior convictions as an adult are significant and similar in nature to the
charges here.
       “Defendant did receive the benefit of his bargain.
       “I would note in mitigation that the defendant’s prior performance on probation
was satisfactory; but it does appear to the court, based on all the facts and circumstances,
that the circumstances in aggravation do outweigh the circumstances in mitigation, and
the upper term is appropriate.”
       Accordingly, the trial court sentenced defendant to serve a base term of three years
in state prison. The court also sentenced defendant to additional, concurrent one-year
terms on the misdemeanor charges. Defendant appeals his sentence.
                                       DISCUSSION
       Defendant contends the trial court improperly imposed the upper term sentence of
three years on the registration conviction. Defendant claims the court ignored two
mitigating circumstances: (1) his early admission of guilt, and (2) his health problems.
Defendant further claims the aggravating circumstances relied upon by the court were
“improper.”

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                                       Legal Standards
       “A trial court has broad discretion in making sentencing choices. (People v.
Sandoval (2007) 41 Cal.4th 825, 847.) Nevertheless, a trial court is required to
state its reasons for any sentencing choice (e.g., imposition of an upper term) on the
record at the time of sentencing. (§ 1170, subd. (c); People v. Garcia (1995)
32 Cal.App.4th 1756, 1769.) One aggravating factor is sufficient to support the
imposition of an upper term. (People v. Davis (1995) 10 Cal.4th 463, 552; People
v. Castellano (1983) 140 Cal.App.3d 608, 614-615.)” (People v. Ortiz (2012)
208 Cal.App.4th 1354, 1371.)
       “[A] trial court will abuse its discretion . . . if it relies upon circumstances that are
not relevant to the decision or that otherwise constitute an improper basis for decision.
[Citation.]” (People v. Sandoval (2007) 41 Cal.4th 825, 847.) Defendants bear a heavy
burden when attempting to show an abuse of discretion. (People v. Aubrey (1998)
65 Cal.App.4th 279, 282.) “ ‘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.)
                                        Harvey Waiver
       Defendant contends the trial court erred in imposing the upper term because, in
imposing the upper term, the court relied on facts related to the dismissed charges, not the
crime for which he was convicted. When defendant pled no contest to failing to update
his registration as a sex offender, he also agreed the sexual abuse charges would be
dismissed with a Harvey waiver. Accordingly, the court was free to consider defendant’s
entire criminal history, including the dismissed charges, when sentencing defendant.
(People v. Goulart (1990) 224 Cal.App.3d 71, 80.)
       Defendant argues in his reply brief that the Harvey waiver did not apply because
neither the prosecution nor the court mentioned the waiver at sentencing. He also argues

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the waiver should not have applied because, at sentencing, he continued to insist he was
innocent of the dismissed charges and agreed to the plea only because a jury “would have
learned about his prior sex offense conviction.” These arguments are forfeited because
defendant failed to cite any authority to support them. (Cal. Rules of Court, rule
8.204(a)(1)(C)4; People v. Hardy (1992) 2 Cal.4th 86, 150 [a reviewing court need not
address any issue purportedly raised without argument or citation to relevant authority];
Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655-656 [appellant is required to present
legal authority in support of each issue raised, along with citations to the record,
otherwise the issue is forfeited].)
                         The Trial Court’s Exercise of Discretion
       Defendant argues the trial court abused its discretion in imposing the upper term
because the court failed to consider his medical condition and his early admission of guilt
as mitigating circumstances. He also argues it was error to rely on his prior convictions
for a sexual offense to aggravate the term because (1) a prior conviction for a qualifying
sexual offense is an element of the crime for which he was being sentenced, and (2) the
court “made up its own” aggravating factor, finding defendant’s prior convictions as an
adult were “ ‘significant and similar in nature to the charges here.’ ” We are not
persuaded.
       Selection of the upper term is justified only when aggravating circumstances
outweigh mitigating circumstances, but a trial court has broad discretion to weigh the
factors. (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) We must affirm unless there
is “a clear showing the sentence choice was arbitrary or irrational.” (Ibid.)
       Here, the record on appeal establishes the trial court carefully considered all the
aggravating and mitigating circumstances set forth in the Rules of Court. The record




4      Undesignated references to rules are to the California Rules of Court.

                                              6
further establishes the trial court considered all the aggravating and mitigating
circumstances applicable to defendant. The applicable aggravating circumstances
include: defendant’s recidivism (rule, 4.421(b)(3)), the victim’s particular vulnerability
(rule 4.421(a)(3)), defendant took advantage of a position of trust in molesting his step-
daughter (rule 4.421(a)(11), and the ongoing abuse of his victim showed planning (rule
4.421(a)(8)). Any one of these factors would have been sufficient to support the upper
term. (People v. Osband (1996) 13 Cal.4th 622, 678.)
       The applicable mitigating circumstances include defendant’s poor health (rule
4.420(b))5, his early admission of guilt (rule 4.423(b)(3)), and his prior performance on
probation (rule 4.423(b)(6)).
       The trial court “note[d]” defendant’s recidivism (rule 4.421(b)(2), (3)) and
defendant’s satisfactory performance on probation (rule 4.423(b)(6)), but the court did
not say it was relying on those two circumstances alone in finding the aggravating
circumstances outweighed those in mitigation. Indeed, we presume the trial court
considered all the relevant circumstances “even though it did not expressly restate, recite,
or otherwise refer to each one.” (People v. Weaver (2007) 149 Cal.App.4th 1301, 1318.)
Because, “unless the record affirmatively shows otherwise, a trial court is deemed to have
considered all relevant criteria in . . . making any . . . discretionary sentencing choice.”6
(Ibid., citing rule 4.409.)



5      “In exercising his or her discretion in selecting one of the three authorized prison
terms referred to in section 1170(b), the sentencing judge may consider circumstances in
aggravation or mitigation, and any other factor reasonably related to the sentencing
decision. The relevant circumstances may be obtained from the case record, the
probation officer's report, other reports and statements properly received, statements in
aggravation or mitigation, and any evidence introduced at the sentencing hearing.” (Rule
4.420(b).)
6       Because we reach the merits of defendant's appeal, we need not address his claim
that trial counsel was deficient for failing to preserve the issue for appeal.

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       In sum, the trial court’s decision was “not arbitrary and capricious,” was
“consistent with the letter and spirit of the law,” and was “based upon an ‘individualized
consideration of the offense, the offender, and the public interest.’ ” (People v. Sandoval,
supra, 41 Cal.4th at p. 847.) We conclude the trial court did not abuse its discretion.
                                      DISPOSITION
       The judgment is affirmed.



                                                        HOCH         , J.



We concur:



      BUTZ         , Acting P. J.



      DUARTE       , J.




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