Filed 6/18/15 P. v. Knight CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A142087
v.
DARRYL LEON KNIGHT, JR.                                                  (Contra Costa County
                                                                          Super. Ct. No. 41636299)
         Defendant and Appellant.


         This is an appeal from judgment after the trial court revoked the probation of
appellant Darryl Leon Knight, Jr., and sentenced him to the middle term of six years in
state prison. Appellant had been placed on probation as part of a negotiated disposition
after pleading no contest to one count of a lewd act against a child under the age of 14.
Appellant challenges his sentence as an abuse of the trial court’s discretion. Appellant
also challenges the trial court’s failure to obtain and consider a probation report and
supplemental probation report prior to sentencing. We affirm.
                        FACTUAL AND PROCEDURAL BACKGROUND
         On November 24, 2009, a felony complaint was filed charging appellant with
committing a lewd act upon Jane Doe, a child under the age of 14 (Pen. Code, § 288,
subd. (a)), with a substantial sexual conduct probation ineligibility clause included (id.,
§ 1203.066, subd. (a)(8)).1



1
         Unless otherwise stated, all statutory citations herein are to the Penal Code.


                                                             1
       On June 30, 2010, appellant entered a plea of no contest to one count of a lewd act
upon a child under age 14.2 (§ 288, subd. (a).) As part of this negotiated plea, the
probation ineligibility enhancement was dismissed. Appellant was then placed on formal
probation for five years and, among other things, ordered to report to the probation
department and to register as a sex offender for the remainder of his lifetime.
       A bail report prepared by the probation department and dated March 8, 2010,
described the circumstances of appellant’s offense as follows:
       “On October 3, 2009, at approximately 4:15 a.m., a Pittsburg Police Officer
responded to 13 year-old Jane Doe’s residence, where her mother caught her and the 21
year-old defendant having sexual intercourse.
       “When police arrived, Jane Doe’s mother had her pinned on the floor, slapping her
head and face. When the two were separated, police learned that Jane Doe has known the
defendant for approximately six months and he frequents the residence with a group [of]
Jane Doe’s friends. When Jane Doe’s mother left the residence to go out the previous
evening, she made all of Jane Doe’s friends leave her home, including the defendant.
“When Jane Doe’s mother returned at approximately 4:00 a.m., she found the defendant
on top of Jane Doe having sex with her from the rear. When he jumped up, Jane Doe’s
mother saw that he was wearing a condom and he pushed past her to exit the front door
when she told him the police were coming.
       “Jane Doe admitted asking the defendant to have sex with her and her mother took
her [for] a SART exam. Police were unable to locate the defendant.
       “On November 10, 2009, police located the defendant at his home and he
voluntarily responded to the police station. He admitted having sex with Jane Doe at her
request, despite knowing her age.”
       Appellant subsequently failed several times to comply with the terms of his
probation. Between August 24, 2011 and December 23, 2013, five petitions to revoke
probation were filed in his case. For the first four of these petitions, appellant admitted


2
       The parties stipulated to a factual basis for the plea based upon the police reports.


                                              2
the violations and his probation was reinstated. However, appellant contested the fifth
such petition, filed December 23, 2013,3 which alleged failure to register as a sex
offender, failure to enroll in mandatory sex offender programs, and failure to maintain
contact with the probation department.
       A contested hearing began May 2, 2014. After evidence was presented and
argument heard, the trial court found appellant in violation of the terms of his probation.4
The court then continued the matter for sentencing. After a subsequent contested hearing
on May 8, 2014, the court revoked appellant’s probation and sentenced him to the middle
term of six years in prison, followed by an appropriate period of parole. In doing so, the
court rejected defense counsel’s argument for a suspended or lower-term sentence. This
appeal followed.
                                      DISCUSSION
       Appellant raises the following arguments on appeal. Appellant’s primary
contention is that the trial court misapplied both the law and facts when sentencing him to
the middle term of six years in prison. In addition, appellant raises the related argument
that the trial court erred by sentencing him without first obtaining and considering a
probation report and supplemental probation report in accordance with section 1203,
subdivision (b). We address each issue in turn below.
I.     Sentencing Appellant to the Middle Term.
       Appellant contends the trial court abused its discretion when sentencing him to the
six-year middle term after revoking his probation. Accordingly, appellant calls upon this



3
       A supplemental petition was filed on February 25, 2014.
4
       Detective Harmon testified that appellant had failed to register as a sex offender,
even after appellant had admitted to him being aware of the registration requirement.
Appellant’s probation officer, in turn, testified that appellant had never met with a
probation officer during the entire period of his probation. Appellant also testified, and
acknowledged these failures. Appellant explained that, when he made efforts to register,
he was told to provide an address. However, because appellant was homeless at the time,
he could not do so.


                                             3
court to reverse the trial court’s judgment and remand his case for resentencing. The
following legal and factual background is relevant.
         At the sentencing hearing, the trial court first stated its intent to revoke probation
and order appellant to serve time in prison. After hearing further argument, the trial court
ultimately decided upon the middle term, concluding that mitigating and aggravating
factors were of equal weight and, thus, effectively cancelled each other out:
         “As I read the statute the Court is required to impose the mid term, unless there are
mitigating factors present or aggravating factors that the Court believe controls.
         “The defendant argues in mitigation that he was – that the victim was an initiator
of and a willing participant in the crime that he committed. That’s a reference to
[California Rules of Court,] rule 4.423, subsection (a) subsection (2).
         “In response to that the prosecutor has said that minors are not capable of being
initiators of or willing participants in an incident of this nature. And I believe that that is
true, as far as the underlying crime is concerned. However, for the factors relating to the
circumstances in mitigation I found no authority that held that a minor, even one 13 years
of age, is not capable of being an initiator of or willing participant in the incident for the
purposes solely of mitigation. And so I think the defense might be correct that that might
be, if that is how one interprets the eligibility for a minor to trigger that provision, then
that may be a factor that is in mitigation.
         “There are no other factors that I could find that could possibly relate to this
defendant’s crime in mitigation.
         “On the other hand in aggravation. It is clear that the defendant did take
advantage of the position of trust that he was left in charge of, basically babysitting, this
minor. And there is also no doubt that given the minor’s age she was particularly
vulnerable. And so there are two aggravating factors that are possibly triggered by an
analysis of mitigating and aggravating factors that are required to be analyzed by the
Court.




                                                4
       “On balance to me both the possible mitigating and possible aggravating factors
are offsetting. And as I understand the law the default position is the mid term, in this
case six years, and that is the sentence that the defendant will be sentenced to.”
       Appellant contends the trial court’s statement of reasons reflects a
misunderstanding of the governing law. Specifically, appellant contends the trial court
applied the former law, requiring imposition of the middle term unless “the balance of
aggravating or mitigating factors cited in support of [imposition of the upper or lower
term] ‘weighs’ against imposition of the middle term” (People v. Scott (1994) 9 Cal.4th
331, 350), rather than the current law, providing in relevant part that the court “shall
select the term which, in the court’s discretion, best serves the interests of justice” and
“shall set forth on the record the reasons for imposing the term selected . . . .” (§ 1170,
subd. (b).) In addition, appellant contends the two aggravating factors relied upon by the
trial court when imposing the middle term – to wit, appellant’s position of trust and the
victim’s particular vulnerability – lacked the support of substantial evidence.
       We address these contentions below. However, before doing so, a preliminary
matter deserves our attention: Appellant’s acknowledged failure to raise objections to the
sentencing order at trial on the same grounds raised here. California Supreme Court
authority holds that, under these circumstances, an appellant forfeits the right to challenge
the trial court’s sentencing decision on appeal.5 (People v. Scott, supra, 9 Cal.4th at


5
        As the California Supreme Court has explained, “the purpose for requiring the
court to orally announce its reasons at sentencing is clear. The requirement encourages
the careful exercise of discretion and decreases the risk of error. In the event ambiguities,
errors, or omissions appear in the court’s reasoning, the parties can seek an immediate
clarification or change. The statement of reasons also supplies the reviewing court with
information needed to assess the merits of any sentencing claim and the prejudicial effect
of any error.” (People v. Scott, supra, 9 Cal.4th at p. 351.) And while “the court is
required to impose sentence in a lawful manner, counsel is charged with understanding,
advocating, and clarifying permissible sentencing choices at the hearing. Routine defects
in the court’s statement of reasons are easily prevented and corrected if called to the
court’s attention. As in other waiver cases, we hope to reduce the number of errors
committed in the first instance and preserve the judicial resources otherwise used to
correct them.” (Id. at p. 353.)


                                              5
p. 351 [claims required to be brought to the trial court’s attention at the time of
sentencing to avoid forfeiture include those involving the court’s failure to properly make
or articulate its discretionary sentencing choices]; see also People v. Chi Ko Wong (1976)
18 Cal.3d 698, 725 [criminal defendant cannot argue for the first time on appeal that the
court erred by imposing an aggravated sentence based on erroneous or otherwise flawed
information in a probation report].)
       Even were we to excuse appellant’s forfeiture, however, we would nonetheless
reject his challenge on the merits. As appellant acknowledges, trial courts have wide
discretion in weighing aggravating and mitigating factors, and their exercise of discretion
will be disturbed on appeal only if it has been abused. (People v. Avalos (1996) 47
Cal.App.4th 1569, 1582.) “As under the former [statutory] 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. (See,
e.g., People v. Colds (1981) 125 Cal.App.3d 860, 863 [178 Cal.Rptr. 430] [it is improper
to consider a waiver of jury trial in mitigation, or an exercise of the right to jury trial as
aggravation]; People v. Johnson (1988) 205 Cal.App.3d 755, 758 [252 Cal.Rptr. 302]
[‘defendant’s alienage is not a proper factor when considering the length of his term’].)
A failure to exercise discretion also may constitute an abuse of discretion.” (People v.
Sandoval (2007) 41 Cal.4th 825, 847-848.)
       In reviewing the court’s exercise of discretion, we must also keep in mind that just
one valid aggravating factor will justify imposition of an upper term. (People v. Black
(2007) 41 Cal.4th 799, 815 (Black).) Further, the “court’s discretion to identify
aggravating circumstances is otherwise limited only by the requirement that they be
‘reasonably related to the decision being made.’ (Cal. Rules of Court, rule 4.408(a).)”
(People v. Sandoval, supra, 41 Cal.4th at p. 848 [fn. omitted].) In determining “ ‘whether
there are circumstances that justify imposition of the upper or lower term,’ ” the trial
court may consider, among other things, “the record of the trial, the probation officer’s
report, and statements submitted by the defendant, the prosecutor, and the victim or
victim’s family. (§ 1170, subd. (b).)” (People v. Sandoval, supra, 41 Cal.4th at p. 848.)


                                               6
       Here, while insisting the trial court misapplied the governing law, appellant makes
no claim that the court relied upon any circumstance not relevant to sentencing or that
otherwise constituted an improper basis for a sentencing decision.6 Nor does he claim the
trial court wholly failed to exercise its discretion. (People v. Sandoval, supra, 41 Cal.4th
at pp. 847-848.) Instead, appellant argues the court’s exercise of discretion was
hampered by its mistaken belief that it was “required to impose the mid term unless there
are mitigating factors present or aggravating factors that the Court believe controls.” As
appellant points out, the current statutory scheme contains no such requirement.
       However, while we agree the trial court’s statement, quoted above, is not accurate
when considered in isolation, we nonetheless decline to reverse its sentencing decision on
the basis of legal error. To the contrary, the trial court’s analysis, when considered as a
whole, is indeed consistent with the current statutory scheme. In particular, when
exercising its discretion to sentence appellant, the trial court clearly recognized the need
to consider the particular facts relating to appellant and his offense that existed when the
decision to grant him probation was made, rather than any fact or facts arising thereafter.
(See Cal. Rules of Court, rule 4.435(b)(1).) The court also appears to have recognized
the need to be guided by the criteria listed in California Rules of Court rules 4.421
(aggravating circumstances), and 4.423 (mitigating circumstances), as well as any
“additional criteria reasonably related to the decision being made,” as provided in rule
4.408(a). Nothing more was required in this case. (See People v. Sandoval, supra,
41Cal.4th at p. 847 [“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’ ”].) Otherwise stated, we find no basis on this record to
disregard the general presumption that a trial court knows and follows the applicable law.


6
       As discussed below, appellant claims the trial court’s particular-vulnerability
finding was erroneously based solely on the victim’s age, an improper dual use of this
fact. Appellant does not claim, however, that particular vulnerability can never be a
proper basis for imposing a greater sentence.


                                               7
(People v. Montano (1992) 6 Cal.App.4th 118, 122 [“It is presumed in both civil and
criminal proceedings that the trial court properly followed established law absent
evidence to the contrary”].)
        Turning now to appellant’s fact-based challenge, we review the record for
substantial evidence supporting the aggravating factors relied upon by the trial court to
support its sentencing decision. “Under the DSL, a trial court is free to base an upper
term sentence upon any aggravating circumstance that the court deems significant,
subject to specific prohibitions. (See, e.g., Cal. Rules of Court, rule 4.420(c) [fact
underlying an enhancement may not be used to impose the upper term unless the court
strikes the enhancement]; id., rule 4.420(d) [fact that is an element of the crime may not
be used to impose the upper term].” (People v. Sandoval, supra, 41 Cal.4th at p. 848; see
also People v. Brown (2000) 83 Cal.App.4th 1037, 1043 [“a single factor in aggravation
is sufficient to justify a sentencing choice”].)
        Here, the trial court relied upon two aggravating factors to justify imposition of the
middle term – to wit, the victim’s particular vulnerability and appellant’s abuse of a
position of trust. With respect to the court’s “particular vulnerability” finding, this phrase
has been defined in the case law as “vulnerability that is ‘. . . [of] a special or unusual
degree, to an extent greater than in other cases.’ [Citation.] It is proper to focus upon the
total milieu in which the commission of the crime occurred in assessing vulnerability
pursuant to Rule 421. [Citation.] Both the personal characteristics of the victim and the
setting of the crime may be considered.” (People v. Price (1984) 151 Cal.App.3d 803,
814.)
        In applying this definition, we agree with appellant “that aggravating a sentence
due to ‘particular vulnerability,’ where vulnerability is based solely on age, is improper
when age is an element of the offense.” (People v. Dancer (1996) 45 Cal.App.4th 1677,
1693-1694, overruled on other grounds in People v. Hammon (1997) 15 Cal.4th 1117,
1123.) However, where, as here, the victim’s age is simply one factor among many that,
when considered collectively, enhance the victim’s vulnerability at the time of the crime,
the trial court may properly consider it to choose an appropriate sentence. (See id.) For


                                               8
example, in our case, the victim was a young girl, victimized at 4:00 a.m. while she was
alone at her house and her mother was out for the evening, by appellant, a man eight
years older, who had wholly disregarded the victim’s mother’s instruction, several hours
earlier, to leave the house. Under the totality of these circumstances, the trial court had a
proper basis for finding that the victim in this case was particularly vulnerable at the time
of appellant’s offense. (See People v. Price, supra, 151 Cal.App.3d at p. 814.)
       Appellant also challenges the trial court’s finding that he took advantage of a
position of trust or confidence to commit the offense. As appellant points out, he was not
a parent, relative, or babysitter of the victim, or in any other apparent special relationship
with her. As appellant notes, the existence of this aggravating factor depends on the
defendant’s “special status” vis-a-vis the victim. (People v. Franklin (1994) 25
Cal.App.4th 328, 338.) In this case, the victim’s mother at no point asked or otherwise
trusted him to be alone with her. To the contrary, the mother directed him to leave their
house on the night in question. As such, appellant questions the soundness of the trial
court’s statement at the sentencing hearing that, “he was left in charge of, basically
babysitting, this minor.”
       The People counter that there is evidence appellant had cultivated a friendship
with the young victim, and thereby earned repeated entry into her home with other
friends, and then took advantage of her trust to later gain entry into her home by himself.
Appellant, however, points out there is little in the record regarding appellant’s purported
friendship with the victim aside from the fact that they had known each other for about
six months and appellant had visited her home a few times in the presence of others. We
tend to agree with appellant that the evidence on this issue is bare. However, for reasons
that will become clear, we need not prolong our consideration of this factor.
       First, as the People point out, there is another aggravating factor justifying the trial
court’s refusal to impose the lower term, which the prosecutor noted in argument:
Appellant’s lewd act was, undisputedly, full sexual intercourse with the 13-year-old
victim. (See Cal. Rules of Court, rule 4.421(a)(1) [“The crime involved . . . other acts
disclosing a high degree of . . . callousness”].) While appellant disputes that the trial


                                              9
court considered or applied this fact, the law is well settled that when a trial court has
stated that it reviewed and relied upon certain documents that address relevant mitigating
factors (including, in this case, the probation department’s bail study), the trial court is
deemed to have considered all such factors even if it does not mention them on the
record.7 (People v. Weaver (2007) 149 Cal.App.4th 1301, 1318, overruled on another
ground in People v. Cook (2015) 60 Cal.4th 922. See also People v. Sandoval, supra,
41Cal.4th at p. 847 [“Under the amended scheme, a statement of reasons is required even
if the middle term is imposed. (See § 1170, subd. (b), as amended by Stats. 2007, ch. 3,
§ 2.) The reasons, however, no longer must ‘include a concise statement of the ultimate
facts that the court deemed to constitute circumstances in aggravation or mitigation’ ”].)
       Secondly, and even more significant to this case, as stated above, even a single
appropriate factor is sufficient to support an aggravated term. (People v. Williams (1991)
228 Cal.App.3d 146, 153.) Here, as discussed above, we have sufficient evidence of at
least one (if not two) aggravating factor – the victim’s particular vulnerability – to
support the court’s imposition of the middle term. Thus, even assuming for the sake of
argument that the trial court erred when articulating its justifications for imposing the
middle term, any such error must be deemed harmless in this case.8 (E.g., People v.
Dancer, supra, 45 Cal.App.4th at p. 1695.)




7
        We further point out that when, after the trial court announced the sentence,
defense counsel asked to add to the record on mitigating factors to emphasize that
appellant had no prior record and that his crime did not involve harm or threats, the court
confirmed: “If I didn’t say it, I certainly did take that into account.” The court also stated
that it had considered the fact that the victim was a willing participant.
8
        Appellant’s ineffective assistance of counsel argument fails for the same reason –
to wit, he cannot establish that, but for his counsel’s failure to object to the court’s
sentencing decisions, he would have achieved a more favorable result. (People v.
Dancer, supra, 45 Cal.App.4th at p. 1695, fn. 11.) Since any objection to the trial court’s
sentencing decision would have lacked merit, we conclude trial counsel cannot be
deemed ineffective for failing to make such objection.


                                              10
II.    Failure to Order and Consider Probation Reports Prior to Sentencing.
       Finally, we address the trial court’s failure to order or consider a probation report
or supplemental probation report in advance of sentencing. As appellant notes, section
1203, subdivision (b)(1), requires preparation of sentencing reports and supplemental
sentencing reports by the probation department to guide the court’s sentencing decisions.9
In addition, section 1203, subdivision (b)(4), states in relevant part that “preparation of
the report or the consideration of the report by the court may be waived only by a written
stipulation of the prosecuting and defense attorneys that is filed with the court or an oral
stipulation in open court that is made and entered upon the minutes of the court, except
that a waiver shall not be allowed unless the court consents thereto.”
       Here, the record reflects that, at the May 2, 2014 hearing, the trial court, at least
twice, requested a copy of the sentencing report, stating: “I don’t feel comfortable
making a selection without looking at the sentencing report.” Defense counsel, however,
responded: “I don’t think that there would be a sentencing report if this was a [section]
1192.5 disposition, and the case did not go to trial.” The prosecutor, in turn, offered to
get the trial court the police reports, as well as the bail study prepared by the probation
department in anticipation of appellant’s negotiated disposition. The court confirmed, “I
would like to see [the bail study]. I think what we’ll do right now is I would take a break,
and I would like to read that before making a decision, because I think reading that is the
missing part that I have. So I don’t think that I can make a proper decision without
reading [the bail study].” Accordingly, the proceedings were adjourned until the
following week.
       When the hearing continued on May 8, 2014, the court permitted further argument
by both counsel with respect to information in both the police report and bail study before

9
        Section 1203, subdivision (b)(1), provides: “Except as provided in subdivision (j),
if a person is convicted of a felony and is eligible for probation, before judgment is
pronounced, the court shall immediately refer the matter to a probation officer to
investigate and report to the court, at a specified time, upon the circumstances
surrounding the crime and the prior history and record of the person, which may be
considered either in aggravation or mitigation of the punishment.”


                                              11
announcing its decision to impose the six-year sentence. While defense counsel then
asked to make a further record about the factors in mitigation, counsel did not raise any
objection with respect to the absence of a sentencing report.
       Based on the record set forth above, it appears defense counsel invited the court’s
error in failing to comply with the requirements of section 1203, subdivision (b), by
telling the court, “I don’t think that there would be a sentencing report if this was a
[section] 1192.5 disposition, and the case did not go to trial.”10 In any event, for all the
reasons we have already set forth, any error on this ground must be deemed harmless
given that the trial court’s sentencing decision, based on relevant information set forth in
the police record and probation department’s bail study, was within the broad scope of its
discretion. In addition, we point out that appellant does not challenge the court’s
threshold decision to revoke his probation, which was based on the undisputed record of
his numerous probation violations. Nor does he suggest there are any specific
undisclosed facts that, if presented at the hearing, might have swayed the court toward
leniency.11 Simply put, under the given circumstances, there is no reasonable probability
of a result more favorable to appellant but for the court’s error. (See People v. Dobbins
(2005) 127 Cal.App.4th 176, 182 [“Because the alleged error [in failing to obtain and
consider a probation report] implicates only California statutory law, review is governed
by the Watson harmless error standard”].)12 Accordingly, the trial court’s decision is
affirmed.


10
       Appellant does not challenge his trial counsel’s conduct on this issue as ineffective
assistance of counsel.
11
       While appellant notes that sentencing reports typically contain information
regarding the defendant’s family background, in this case, his sister testified at the
hearing and spoke at length about their family background, including the fact that neither
parent lived in the area or had means to support or assist their children.
12
       We have read and considered appellant’s supplemental letter brief, in which he
argues that, given his eligibility for probation, the trial court’s failure to obtain and
consider a probation report should be deemed reversible error absent facts demonstrating
the result would have been the same had the report been prepared. Having read the
relevant case law, and in light of the relevant facts set forth above, we decline to apply

                                              12
                                    DISPOSITION
      The judgment is affirmed.



                                                _________________________
                                                Jenkins, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Pollak, J.




this proposed standard. (Cf. People v. Bohannon (2000) 82 Cal.App.4th 798, 808-809,
disapproved on another ground in Pepole v. Zambrano (2007) 41 Cal.4th 1082, 1135,
fn. 13, [“When a probation report has not been timely received and the defense has made
a specific objection and requested a continuance, the failure to follow the requirements
of the Penal Code has been held to constitute a denial of due process requiring remand for
resentencing. (People v. Leffel (1987) 196 Cal.App.3d 1310, 1318-1319 [242 Cal.Rptr.
456]; see People v. Middleton (1997) 52 Cal.App.4th 19, 35-36 [60 Cal. Rptr.2d 366]
[due process violation established when defendant is statutorily ineligible for probation
only if the probation report was received untimely and actual prejudice is
demonstrated].)”] [Italics added].)


                                           13
