Filed 10/22/15 P. v. Quintana CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                           B260991

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA091434)
         v.

VICTOR MANUEL QUINTANA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Robert M. Martinez, Judge. Affirmed in part, and remanded with directions.
         Jennifer Hansen, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerard A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Paul M.
Roadarmel, Jr., and Allison H. Chung, Deputy Attorneys General, for Plaintiff and
Respondent.




                        _________________________________________
                                 INTRODUCTION
      This matter is before us for a second time. Appellant initially was sentenced
to 66 years to life. He appealed, and on August 19, 2014, this court affirmed the
convictions and remanded the matter for resentencing. At the resentencing
hearing, the trial court sentenced appellant to 43 years in state prison, consisting of
several upper-term sentences.
      Appellant noticed an appeal, contending that the trial court abused its
discretion in imposing the upper terms. For the reasons stated below, we find no
error in the imposition of the aggravated terms. Additionally, the People request
that this court correct certain clerical errors in the minute order and abstract of
judgment. We will remand with directions to make the requested corrections.


        FACTUAL BACKGROUND AND PROCEDURAL HISTORY
      Appellant Victor Manuel Quintana was convicted of committing lewd acts
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upon a child, I.D. (Pen. Code, § 288, subd. (a); counts 1, 2 & 4), continuous sexual
abuse, by engaging in three or more specified acts against I.D. and her sister, A.D.
(§ 288.5, subd. (a); counts 3 & 5), and attempted forcible lewd acts upon a child,
A.D. (§§ 288, subd. (b)(1)/664; count 6).
      At the resentencing hearing, the trial court noted: “This case involved
multiple acts of abuse against children that started at an age as young as five and
continued for multiple years. It involved touching. They involved having the
children touch him, and they all involved and were directed to his own self-
gratification. The children were extremely young, extremely vulnerable. . . .” The
trial court found “no mitigating circumstances,” and initially imposed a total term
of 52 years in state prison.
1
      All further statutory citations are to the Penal Code, unless otherwise stated.

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      After considering defense objections, the trial court sentenced appellant to a
total term of 43 years in state prison, consisting of upper-term sentences on counts
1, 2, 3, and 5. The sentence on count 2 was concurrent. In imposing the upper
terms, the trial court stated, “The selection of high terms is based on numerous
incidents involved in this case, [and] the vulnerability of the children.” The trial
court also denied probation “based on the multiple sex crimes committed, the
vulnerability of the children victims, and the danger imposed [sic] by [appellant].”


                                   DISCUSSION
      A.     Imposition of Aggravated Terms
      Under California’s determinate sentencing law (DSL), which specifies three
terms for most offenses, the decision to impose an upper term rests within the
broad discretion of the trial court. (People v. Sandoval (2007) 41 Cal.4th 825, 836,
847.) Under the DSL, a trial court may base an upper term sentence upon any
aggravating circumstance (1) that the court deems “significant,” and (2) that is
“‘reasonably related to the decision being made.’” (Id. at p. 848.) A single
aggravating circumstance may be used to impose multiple upper terms for different
offenses. (People v. Moberly (2009) 176 Cal.App.4th 1191, 1198.) However, the
sentencing court is prohibited from using the same fact to impose an upper term
and a consecutive sentence for separate offenses, or to impose an aggravated term
and an enhancement. (People v. Scott (1994) 9 Cal.4th 331, 350 & fn. 12.)
Similarly, a fact that is an element of the substantive offense cannot be used to
impose an aggravated term. (People v. Sandoval, supra, 41 Cal.4th at p. 847.)
      Here, the trial court imposed upper terms based on the number of incidents
and the particular vulnerability of the victims. Appellant contends that the number
of incidents already was accounted for in the multiple substantive offenses


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charged, and that the victims were not particularly vulnerable, as their ages are an
element of the substantive offenses. In short, appellant contends the trial court
abused its discretion in imposing the upper term by relying upon the same facts
that are elements of the substantive offenses. We disagree.
      Substantial evidence supports the trial court’s findings (1) that the number of
incidents exceeded the minimum required as part of the substantive offenses, and
(2) that the victims were particularly vulnerable. As to the number of incidents,
A.D. testified that appellant began abusing her when she was in the second grade,
and that he continued the abuse until she was in the fifth grade. She stated that
appellant abused her more than 10 times. I.D. testified that appellant began
molesting her when she was five years old, about halfway through the school year.
I.D. stated that appellant would molest her every morning she went to school, and
that he molested her more often when she turned six. On this record, substantial
evidence supports the trial court’s finding that appellant committed more than six
wrongful acts against I.D. -- the minimum number required for counts 1, 2, and 3 --
and more than three wrongful acts against A.D. -- the minimum number required
for count 5. (See People v. Castorena (1996) 51 Cal.App.4th 558, 562 [“[W]here
the facts surrounding the charged offense exceed the minimum necessary to
establish the elements of the crime, the trial court can use such evidence to
aggravate the sentence”].)
      Substantial evidence also supports the trial court’s finding that the victims
were particularly vulnerable. The victims were much younger than 14 years old --
an element of the substantive offenses. More important, appellant had a close
relationship with the victims, and he abused the trust their mother placed in him.
I.D. testified that appellant slept in the same bed with her mother, that he would
drop her off at school, that he would keep watch over her until her mother came


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home from work, and that she looked at him as a father figure. A.D. testified that
appellant was her mother’s boyfriend, that her mother trusted him and loved him
very much, that he would take care of her and her sister, that he would take them
out to restaurants, and that he helped the family find a place to live after they were
evicted from their previous home. On this record, substantial evidence supports
the trial court’s finding that the victims were particularly vulnerable. (See, e.g.,
People v. DeHoyos (2013) 57 Cal.4th 79, 154 [“[A] crime victim can be deemed
particularly vulnerable as an aggravating factor ‘for reasons not based solely on
age, including the victim’s relationship with the defendant and his abuse of a
position of trust’”]; People v. Dancer (1996) 45 Cal.App.4th 1677, 1693, reversed
on another point in People v. Hammon (1997) 15 Cal.4th 1117, 1123 [victim’s
extremely young age combined with other circumstances can establish “‘particular
vulnerability’” as aggravating factor].) In short, we discern no error in the trial
court’s exercise of its discretion to impose the aggravated terms on counts 1, 2, 3,
and 5.
         B.    Clerical Errors in Minute Order and Abstract of Judgment.
         In the prior appeal, we noted that the original count 6 was dismissed, and
that the original count 7 was renumbered to count 6. At the resentencing hearing,
the trial court noted that the abstract of judgment should be amended to make the
correction. Unfortunately, neither the minute order nor the abstract of judgment
was corrected. In addition, the abstract of judgment does not accurately reflect the
date of the resentencing hearing. The People have requested that we correct these
clerical errors, and appellant raises no objection. Accordingly, we will remand
with directions to make the corrections.




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                                 DISPOSITION
      The matter is remanded with directions to the clerk of the superior court to
correct the minute order and abstract of judgment to reflect that the attempted lewd
acts conviction is designated as count 6. The abstract of judgment shall also be
corrected to reflect that the resentencing hearing was held on December 16, 2014.
As corrected, the judgment is affirmed.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                    MANELLA, J.


We concur:




EPSTEIN, P. J.




WILLHITE, J.




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