Filed 7/10/15 P. v. Gonzales 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F067098
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F11904356)
                   v.

SHAWN PATRICK GONZALES,                                                                  OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Edward
Sarkisian, Jr., Judge.

         Linda M. Leavitt, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Chung
Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
         Following jury trial, defendant Shawn Patrick Gonzales was convicted of a lewd
and lascivious act upon a child (Pen. Code, § 288, subd. (a)). On appeal, defendant
contends the trial court abused its discretion pursuant to Evidence Code section 352 by
admitting evidence of his prior uncharged sexual offenses to prove criminal disposition
under Evidence Code section 1108, in violation of his right to due process of law.
Further, defendant maintains the trial court erred in imposing the aggravated term of eight
years in prison. We affirm the judgment.
                            BRIEF FACTUAL BACKGROUND1
       On July 19, 2011, 11-year-old Jacob, his younger sister, and his mother were
staying with Barbara P. temporarily. Jacob thought of Barbara P. as a grandmother figure
because for a period of time his mother dated one of Barbara P.’s sons, Anthony.
However, prior to that date, Jacob had never met Barbara P.’s son Shawn, the defendant.
       That evening, before going to sleep in Anthony’s bedroom, Jacob was lying on the
bed watching a movie. Defendant came into the room, closed and locked the door, and
asked Jacob if he could lie down. Defendant then lay down right behind Jacob, on his
right side. He kissed Jacob on the back of the neck, above the collar of his shirt. While
doing so, defendant told Jacob, “‘God sends me little boys.’” Defendant also told Jacob
he was a “‘boy lover.’” Jacob was scared. Defendant put his arms around Jacob, who
“couldn’t really move.” He held Jacob’s shoulders and chest. Defendant tried to touch
Jacob’s “balls,” but Jacob didn’t let him.
       Thereafter, Jacob grabbed his blanket and pillow and ran to the door. He had to
unlock or unlatch the door. Jacob ran into the room his mother and sister were sharing
with Barbara P. He was shocked because he thought what happened was “weird.” He
was upset. His mother asked him questions and learned what had happened. Barbara P.
called the police.
       Jacob did not recall telling a female interviewer that he could feel defendant’s
erect penis against his “butt cheek and … back,” but he told the truth during that
interview given after the incident. Jacob remembered things better during the interview;



       1Additional   facts are referenced in the Discussion as necessary to the arguments asserted
on appeal.

                                                 2.
he tries not to think about this incident now. He did not remember telling a police officer
or the interviewer that defendant tried to reach inside his pants.
       Specifically, two days after the incident, Jacob met with forensic interviewer
Caroline Dower. During the interview, Jacob indicated defendant had lain next to him
and began to touch him. Defendant grabbed Jacob’s shoulders and pulled him closer,
kissed his neck, rubbed his hair, and told Jacob he was a “‘boy lover’” and that “‘God
sends [him] little boys to play with.’” He was rubbing Jacob “everywhere.” Defendant
put his hand inside Jacob’s gym shorts and put that hand on Jacob’s thigh and “groin
area.” Jacob indicated defendant’s hand was inside his underwear and that’s when he ran
for the door. Jacob indicated defendant’s hand “kind of touched [his] balls.” At that
point, he could feel defendant’s erection on part of his lower back and buttocks. Jacob
was afraid.
                                       DISCUSSION
1.     Evidence Code Section 1108
       Defendant argues the court violated his due process right to a fair trial by
admitting testimony regarding uncharged sex offenses under Evidence Code section
1108. Specifically, he asserts the court abused its discretion by permitting the testimony
of Michael G. and Christopher F. because the uncharged acts were remote, unreliable,
dissimilar, and more prejudicial than probative. We conclude the court acted within its
discretion in admitting this testimony.
       A.     Applicable Law
       With certain exceptions, Evidence Code section 1101 provides that “evidence of a
person’s character or a trait of his or her character … is inadmissible when offered to
prove his or her conduct on a specified occasion.” (§ 1101, subd. (a).) Section 1108
establishes one of the exceptions. It states: “In a criminal action in which the defendant
is accused of a sexual offense, evidence of the defendant’s commission of another sexual
offense or offenses is not made inadmissible by Section 1101, if the evidence is not
inadmissible pursuant to Section 352.” (§ 1108, subd. (a).)

                                              3.
       Evidence Code section 1108 was enacted in 1995 because the “Legislature …
determined that the policy considerations favoring the exclusion of evidence of
uncharged sexual offenses are outweighed in criminal sexual offense cases by the policy
considerations favoring the admission of such evidence. The Legislature … determined
the need for this evidence is ‘critical’ given the serious and secretive nature of sex crimes
and the often resulting credibility contest at trial. [Citation.]” (People v. Fitch (1997) 55
Cal.App.4th 172, 181–182, fn. omitted.) Because “‘the willingness to commit a sexual
offense is not common to most individuals,’” the Legislature concluded that “‘evidence
of … prior sexual offenses is particularly probative and necessary for determining the
credibility of the witness.’ [Citation.]” (People v. Soto (1998) 64 Cal.App.4th 966, 983.)
       Our Supreme Court has held that evidence admitted in conformity with Evidence
Code section 1108 does not violate a defendant’s due process rights. (People v. Falsetta
(1999) 21 Cal.4th 903, 915 (Falsetta).)2
       As Evidence Code section 1108 provides, propensity evidence in the form of prior
sex offenses is admissible only if it is not unduly prejudicial under section 352. Section
352 provides a trial court the discretion to exclude evidence the probative value of which
is substantially outweighed by its likely prejudicial effect. Explaining the application of
section 352 in the context of evidence deemed admissible by section 1108, the Supreme
Court in Falsetta stated:

       “Rather than admit or exclude every sex offense a defendant commits, trial
       judges must consider such factors as its nature, relevance, and possible
       remoteness, the degree of certainty of its commission and the likelihood of
       confusing, misleading, or distracting the jurors from their main inquiry, its
       similarity to the charged offense, its likely prejudicial impact on the jurors,
       the burden on the defendant in defending against the uncharged offense,
       and the availability of less prejudicial alternatives to its outright admission,
       such as admitting some but not all of the defendant’s other sex offenses, or


       2Defendant    recognizes Falsetta forecloses his claim that the statute violates due process
on its face, but asserts the argument to preserve it for later federal review. We are bound by the
Supreme Court’s decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.) Therefore, we summarily reject defendant’s due process contention.

                                                 4.
       excluding irrelevant though inflammatory details surrounding the offense.
       [Citations.]” (Falsetta, supra, 21 Cal.4th at p. 917.)
The Supreme Court went on to explain that convictions of the prior offenses and
similarities between the charged and uncharged offenses were particularly good
indicators of the probative value of prior crime evidence. (Falsetta, supra, 21 Cal.4th at
p. 917.)
       We review a trial court’s ruling on the admissibility of evidence for an abuse of
discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717.)
       B.     The Trial Court’s Preliminary Statements and Its Ruling
       During the hearing on the motions in limine, the court began by making the
following preliminary comments concerning the Evidence Code section 1108 issue:

              “THE COURT: … And the Court yesterday evening and this morning
       reviewed the People’s motions in limine and before taking the bench
       likewise reviewed defendant’s response and motions in limine. And before
       we begin there are some thoughts and observations that I have that perhaps
       we could decide when and how to address. [¶] … [¶]

               “… I will state that in going through the file and motions and the
       1108 issues we’ll be getting into and all of the individuals that are named
       and dates that are referenced this appears to be a very, very complex factual
       situation or case in terms of the numerous potential witnesses, their relation
       to each other, the dates that are referenced, and all of what is going to be
       addressed in limine. And I will state parenthetically that I’m satisfied that
       we are proceeding very carefully and cautiously relating to all these issues
       rather than having the jury panel brought in immediately and launch into
       the voir dire that should follow a very careful hearing relating to what are
       very complex questions the Court is called upon to decide in limine.”
After a brief continuance, argument was heard by the court concerning this evidence on
April 4, 2013. Following the arguments proffered by the People and the defense, the
court observed:

       “Very well, then I think we’ve completely in terms of argument addressed
       the potential 1108 witnesses. And the Court will need to reflect and review
       your arguments and make a ruling at a later point after consideration of
       your respective arguments.”



                                             5.
The trial court indicated it would make its ruling the following Tuesday. On that date,
the court ruled as follows:

               “[THE COURT]: Now, moving on to the issues relating to 1108 of the
       Evidence Code regarding Bernadette J., Michael G., Christopher F. and
       Aimee G. Again, both parties have made excellent and persuasive
       arguments regarding this very difficult issue pertaining to Evidence Code
       section 1108. The record should be made clear that the Court recognizes
       and will measure the admissibility of these uncharged sexual offenses in the
       context of Evidence Code Section 353—352. Let me repeat that section
       again, 352, which the Court carefully reviewed and went over on April the
       3rd, last week. People versus Falsetta, … decided by the California
       Supreme Court in 1999, at 21 Cal.4th 903, pages 916 to 917, holds that this
       Court, i.e., the trial court retains the power to exclude evidence that is
       cumulative, consumes an undue amount of time, or is unduly prejudicial
       when compared to its probative value. And, of course, both Counsel have
       argued those factors in their respective arguments relating to these four
       witnesses or potential four witnesses.

              “In other words, as noted in People versus Branch, again, decided in
       2001, 91 Cal.App.4th 274, at page 282, discussing People versus Harris,
       decided in 1998, at 60 Cal.App.4th 727, pages 737 to 741, the probative
       value of the evidence must be balanced against four factors:

              “One, the inflammatory nature of the uncharged conduct.

              “Two, a possibility of confusion of the issues.

              “Three, remoteness in time of the uncharged offenses.

              “And, four, the amount of time involved in introducing and refuting
       the evidence of uncharged offenses.

              “With this measure in mind, and in consideration of all these factors,
       the Court concludes that the uncharged offenses regarding Michael G. and
       Christopher F. be allowed; and that the uncharged sexual offenses of
       Bernadette J. and Aimee G. be excluded.

              “In allowance of the uncharged offenses—the offense rather relating
       to Michael G., it is with this qualification, namely, that it relate to the acts
       with respect to him directly in 1982, and not his observations of sex with
       Aimee, or of hearing a tape of a child being raped. Again, that it relate to
       the matters directed to him only.

             “In excluding the uncharged sexual offenses relating to Bernadette
       and Aimee, and allowance of the evidence regarding Michael and

                                              6.
       Christopher, the Court finds that the statement attributed to Defendant by
       Jacob, … ‘I’m a boy lover,’ … and, … ‘God sends me to little boys,’ close
       quote; those statements relative and probative to the young males who were
       ten years old, namely, Michael and Christopher being 6 to 7 years old.
       Recognizing that in this case Jacob was 11 on or about July 20, 2011. All
       boys being approximately of the same age range. Although these
       uncharged offenses were many years ago, as argued by Defense Counsel, a
       fact the Court weighed, they are nevertheless within the time frame upheld
       by the Branch case. They do not appear to be time consuming, nor
       inflammatory, nor will their admission confuse the issues.

               “On the other hand, admission of the uncharged offenses regarding
       the young females would be inflammatory, and confuse the issues,
       particularly in light of the statement attributed to Defendant, … ‘I am a boy
       lover,’ … and, … ‘God sends me to little boys,’ ….

              “This, therefore, will be the Court’s in limine order and ruling
       regarding the 1108 motion. And will direct that the recordings and
       transcripts that reflects the matters that have been excluded be redacted
       accordingly.

               “And to repeat, that the 1108 evidence relating to Michael be limited
       to acts allegedly committed upon him directly and not what he saw or heard
       Defendant do to others.”
       C.     Analysis
       Notably, the trial court did not admit every prior uncharged sex offense proffered
by the prosecution. The People sought to present the testimony of four witnesses under
Evidence Code section 1108. However, the court excluded two of the four, finding the
uncharged acts involving Aimee G. and Bernadette J. would be “inflammatory, and
[would] confuse the issues.”
       The Supreme Court has stated: “[W]hen ruling on a[n Evidence Code] section
352 motion, a trial court need not expressly weigh prejudice against probative value, or
even expressly state it has done so. All that is required is that the record demonstrate the
trial court understood and fulfilled its responsibilities under … section 352.” (People v.
Williams (1997) 16 Cal.4th 153, 213.) On this record, it is clear the court understood the
analysis it was required to undertake under section 1108, weighing prejudice against
probative value pursuant to section 352.

                                             7.
       Nevertheless, defendant maintains the testimony of Michael G. and Christopher F.
should have been excluded because of dissimilarity and remoteness. We note the
evidence of prior uncharged conduct against Michael and Christopher was relevant to
defendant’s propensity to engage in sexual behavior with younger, isolated, male victims.
(People v. McCurdy (2014) 59 Cal.4th 1063, 1099; People v. Escudero (2010) 183
Cal.App.4th 302, 309-310.)
       At the hearing on the motions in limine, the People argued similarities existed
between defendant’s conduct with Michael G. and Jacob. Thirty years prior, when
Michael G. was 10 years old, he moved into the home where defendant, his older half
brother, was already living. On more than one occasion, defendant would masturbate in
front of Michael, grab at Michael’s buttocks, and tell Michael to “‘Suck his dick.’” On
one particular occasion, Michael wanted to go fishing but he was not permitted to go
alone at his age so he asked defendant to take him. Defendant responded by pulling
down his pants and telling Michael “‘if you suck my dick, I’ll take you.’” Michael
refused. The People argued these attempted molestation acts by defendant against
Michael were similar to the incident with Jacob because they, too, involved a younger
male victim who was staying in defendant’s home. Regarding defendant’s conduct with
Christopher F., the People argued there were similarities to the incident with Jacob.
Again, Christopher was a younger male who was visiting defendant’s home. More
particularly, in the incident occurring many years ago, defendant took Christopher into
his bedroom and locked the door. Defendant removed his own clothes and ordered
Christopher to orally copulate him. Christopher refused. Defendant then directed
Christopher to bend over. Defendant tried to penetrate Christopher’s anus from behind,
but he was interrupted by a knock on the door.
       In sum, both Michael G. and Christopher F. were younger than defendant at the
time of the uncharged acts. Defendant’s focus on the fact he, too, was a juvenile during
the relevant uncharged-act time periods, as distinguished from this crime, is misplaced.
All three victims are similar as they are male, younger than defendant, and easily

                                            8.
accessible to him. Jacob testified he was alone in the bedroom before defendant came in
and locked the door behind him. Similarly, Christopher testified defendant attempted to
sexually assault him after locking himself and Christopher in his bedroom. Additionally,
defendant approached both Jacob and Christopher from behind during the sexual conduct
he initiated.
       We conclude sufficient similarities exist between the uncharged acts involving
Michael G. and Christopher F. and the charged conduct involving Jacob. And similarities
are a good indicator of probative value. (Falsetta, supra, 21 Cal.4th at p. 917.)
       “‘[N]o specific time limits have been established for determining when an
uncharged offense is so remote as to be inadmissible.’ (People v. Branch (2001) 91
Cal.App.4th 274, 284.) And similar time periods have been approved in other cases.
(See People v. Ing (1967) 65 Cal.2d 603, 612, questioned on other grounds in People v.
Tassell (1984) 36 Cal.3d 77, 89 [15 years before charged offenses]; People v. Branch,
supra, 91 Cal.App.4th at pp. 284–285 [more than 30 years]; People v. Waples (2000) 79
Cal.App.4th 1389, 1395 [18 to 25 years].)” (People v. Spector (2011) 194 Cal.App.4th
1335, 1388–1389.) Remoteness is but one factor to be considered by the trial court.
       The court did consider the fact the uncharged acts were nearly 30 years old. It
expressly stated: “Although these uncharged offenses were many years ago, as argued by
Defense Counsel, a fact the Court weighed, they are nevertheless within the time frame
upheld by the Branch case.”
       We find no abuse of discretion here. The record affirmatively reflects the trial
court carefully considered defendant’s prior conduct, including its nature and similarity to
the charged offenses and its remoteness in time. The court weighed prejudice against
probative value, and excluded evidence it believed would be inflammatory or was not
sufficiently probative because it was too dissimilar or remote. (See People v. Dejourney
(2011) 192 Cal.App.4th 1091, 1105.) The court’s decision in this regard fell well within
“the bounds of reason, all of the circumstances being considered. [Citations.]” (People
v. Giminez (1975) 14 Cal.3d 68, 72.) Its decision was not “‘arbitrary, whimsical, or

                                             9.
capricious as a matter of law. [Citation.]’ [Citation.]” (People v. Branch, supra, 91
Cal.App.4th at p. 282.)
       Defendant also argues the testimony was indefensible as a result of the remoteness
of the uncharged acts involving Michael G. and Christopher F. However, the possibility
that allegations of prior uncharged offenses are false does not necessarily mean evidence
of those offenses is inadmissible under Evidence Code section 1108. Under Falsetta, the
degree of certainty of a prior offense’s commission is one factor that must be considered
(Falsetta, supra, 21 Cal.4th at p. 917), not that the evidence must be excluded unless
some quantum of certainty is attained. Here, it appears defendant was not charged
because his conduct was never reported to law enforcement. Michael testified he told his
grandparents about defendant’s conduct but defendant denied the conduct and Michael’s
grandparents believed defendant. Defendant’s conduct continued and it was never
reported to the police. Christopher testified he only told his brother about the incident
with defendant. Christopher also testified that years after the incident, he told his mother
what defendant had done but she did not care. She did not call the police. Thus, while
there were no charges asserted nor convictions obtained, the trial court clearly considered
the degree of certainty issue.
       Furthermore, although defendant asserts his counsel’s failure to challenge the
admission of the Evidence Code section 1108 evidence on constitutional due process
grounds amounted to ineffective assistance of counsel, we cannot agree.
       To prevail on an ineffective assistance of counsel claim, the defendant must
establish two things: (1) counsel’s performance fell below an objective standard of
reasonableness, and (2) that prejudice occurred as a result. (Strickland v. Washington
(1984) 466 U.S. 668, 687; People v. Hernandez (2012) 53 Cal.4th 1095, 1105.) The
Strickland court explained that prejudice is “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
(Strickland v. Washington, supra, at p. 694.) Further, the high court stated that “[a]



                                            10.
reasonable probability is a probability sufficient to undermine confidence in the
outcome” of the proceeding. (Ibid.)
       Given the Supreme Court’s holding in Falsetta—that the admission of evidence
under Evidence Code section 1108 regarding a defendant’s propensity to commit a sex
act does not violate a defendant’s right to due process of law (Falsetta, supra, 21 Cal.4th
at pp. 910, 922)—it cannot be said defense counsel here performed below an objective
standard of reasonableness when she did not challenge the admission of the uncharged
evidence on due process grounds. Additionally, defense counsel’s argument against the
admission of the proffered evidence was successful. She persuaded the court to exclude
two of the four witnesses the People sought to place on the stand. The court agreed with
counsel that the uncharged act evidence from Bernadette J. and Aimee G. was more
prejudicial than probative. Thus, in light of the foregoing, it was not unreasonable for
defense counsel to fail to challenge admission of the section 1108 evidence involving
Michael G. and Christopher F. on due process grounds. Notwithstanding, “[t]he decision
whether to object to the admission of evidence is ‘inherently tactical,’ and a failure to
object will rarely reflect deficient performance by counsel.” (People v. Castaneda (2011)
51 Cal.4th 1292, 1335.) Because defendant cannot establish counsel’s performance fell
below an objective standard of reasonableness, we need not address the prejudice prong.
       Here, the trial court soundly exercised its discretion concerning the admissibility
of the uncharged sexual offenses involving Michael G. and Christopher F. Its decision is
not arbitrary, whimsical or capricious. “The ‘determination as to whether the probative
value of such evidence [of uncharged sexual offenses] is substantially outweighed by the
possibility of … unfair prejudice or misleading the jury is “entrusted to the sound
discretion of the trial judge who is [in] the best position to evaluate the evidence.”
[Citation.]’” (People v. Hernandez (2011) 200 Cal.App.4th 953, 966.) We thus conclude
the trial court did not abuse its discretion in admitting evidence of defendant’s prior
uncharged sexual acts under Evidence Code section 1108.



                                             11.
2.     Aggravated Sentence Imposed
       Defendant complains the trial court erred when it imposed the aggravated term
because it did not consider certain mitigating factors and relied too heavily upon other
aggravating factors.
       A.     Sentencing Proceedings
       During the hearing on May 29, 2013, and prior to any argument, the court stated:

       “All right. This was the date and time fixed for the hearing on the
       probation report, which the Court has read and reviewed consisting of 11
       pages. The Court has also read and reviewed the People’s sentencing
       memorandum, consisting of 11 pages, together with the addendum filed this
       morning consisting of one page, and an attachment, namely, a letter from
       Aimee G[.] And also has read and reviewed Defense Counsel’s statement
       in mitigation consisting of four pages.”
Shortly thereafter, the court’s attention was directed to an additional document appended
to the People’s addendum of that same date; the court indicated it had overlooked the
letter but would “take some time now” to read the letter. Following the arguments of the
People and defense counsel, and the statements offered by defendant and others, the court
commented:

             “THE COURT: Well, I know there’s a lot of emotion and a lot of
       consideration by everyone that’s involved in this case, those who have
       addressed the Court, together with Counsel who have argued their case.

               “And what I’m turning over, Counsel, recognizing … you have to be
       in Department 70 very shortly, and recognizing my jury is coming back,
       what I’m considering is instead of pronouncing judgment is to read the
       entire file again, consider everything that’s been argued and stated, and
       proceed to the matter of judgment and sentence either tomorrow morning at
       8:30, or Friday morning at 8:30. But there’s many comments and
       statements I would like to make that I think I need the opportunity to do.

             “So, Counsel, I’m proposing to trail sentencing and matter of
       judgment until tomorrow at 8:30. [¶] … [¶]

              “[DEFENSE COUNSEL]: Could we do Friday, considering my trial?

              “THE COURT: Let me check with [the prosecutor].

              “[PROSECUTOR]: That’s fine, Your Honor.
                                            12.
              “THE COURT: All right. Then I think under all the circumstances,
      and all of what I need to go through once again, and reconsider—like I said
      prior to taking the bench, I read and reviewed the probation report
      consisting of 11 pages, the sentencing memorandums, but there’s a lot that
      needs to be stated and reflected upon before the Court proceeds to
      pronouncement of judgment.”
On May 31, 2013, when sentencing proceedings resumed, and after the court considered
a motion of defendant’s, the following colloquy occurred:

               “THE COURT: [W]e had a lengthy hearing on Wednesday, May the
      29th, and I will incorporate by reference the entire proceedings of that date
      as if it were fully set forth at this time. Again, the record of the proceedings
      of May the 29th will be incorporated by reference. [¶] … [¶]

             “… And, again, for the record, the Court has read the probation
      report consisting of 11 pages as previously stated. The District Attorney’s
      sentencing memorandum of 11 pages, together with a supplemental
      memorandum. Also, the Defense Counsel’s statement of mitigation. And
      has also considered all statements, comments, and argument made on May
      the 29th, the proceedings of which, as I stated, are incorporated today.

              “And, of course, on May the 29th, the Court trailed the matter to
      reflect and consider further the matter of judgment and sentence. And on
      May the 29th both parties made compelling and understandable arguments
      and recommended sentences.

             “Prior to the hearing on the 29th, prior to entering that hearing, the
      Court also considered the appropriateness of a diagnostic report and
      recommendation pursuant to Penal Code Section 1203.3—again, 1203.03.
      But upon further consideration, concluded that would not be an appropriate
      course of action to take for the reasons hereinafter stated.

            “Next, the Court will recite some thoughts about this case itself,
      without being exhaustive of all thoughts that give rise to this case.

             “And I will note in reflecting on this trial and this case that the jury
      did not come up with a quick verdict. And the jury asked questions, many
      questions, and came in the following day before reaching a verdict.

             “Regarding the uncharged offenses, I think it should be borne in
      mind that based on the strenuous motion made by Defense Counsel, the
      Court concluded, and I think it was a correct decision to make, the Court
      did exclude the testimony of the prior matters relating to the female who
      the People wished to call, several females. And the Court in the 1108

                                            13.
motion did allow the testimony of two young boys. And during the trial it
was clear to the Court that the impact it had on them, both Michael and
Christopher, both of whom came into this court from long distances.
Michael, as I recall, coming from the state of Oregon. Now, the Defendant
was never charged for those offenses. But, in any event, this case will
perhaps give them some measure of closure after all of these years. This is
the first time they could officially testify about their experiences.

        “Relating to Jacob, the victim in this case, it’s obvious the impact
this case has had on him. And as has been noted several times, his grade
point average went from a 3.8 down to 1.3 And in a sense by having to
testify again—rather by having to testify in this case in a sense he was
victimized again. Jacob appeared to be a smart, intelligent young man.
And it’s the Court’s hope that this experience does not lead to or cause any
serious difficulties in his future. His mother’s statement the day before
yesterday was very compelling. And I hope that he could turn around again
and go back to the boy that he was before this case occurred. It looks like
Michael and Christopher have both adjusted, albeit with the marijuana
matter now in Michael’s life. But the Court has a sense that they are and
will be productive citizens, and the Court’s confident that Jacob will be as
well.

        “And it was sad to witness the impact all of this case has had, even
on the Defendant’s own mother …. This case at one point lead to a body
attachment being issued for the Defendant’s mother, which this Court
ordered recalled after her testimony was given. She mentioned the
medications and physical and mental stress she suffers from. And to her
credit, she, Defendant’s mother, called 911, according to the testimony.
And her testimony reflected the statement to her, Defendant’s statement to
her, that he, namely, the Defendant, fondled Jacob. And it’s unfortunate
that she was placed in this difficult situation to testify against her own son,
but she stepped up to the plate consistent with her calling 911.

      “And it is obvious to the Court that the Defendant does suffer from
mental health issues. But the Court is satisfied that he knew precisely what
he was doing on July 20th, 2011. And all of the testimony, both
prosecution and defense, appropriately reflects the jury’s verdict of his guilt
of Penal Code Section 288, subdivision (a), as charged.

       “And, again, in light of all that’s been stated and argued and so on, it
must be remembered that a jury, 12 persons, unanimously returned their
verdict based on the evidence they heard and were satisfied beyond a
reasonable doubt of Defendant’s guilt.



                                      14.
              “Accordingly, for the offense of Penal Code Section 288,
       subdivision (a), the Defendant is statutorily ineligible for a grant of
       probation since a 288.1 report has not been ordered, nor will the provisions
       of 1203.067 be ordered.

              “The Court in weighing the factors in mitigation and aggravation
       find that the aggravating factors preponderate.

               “The Court recognizes that Defendant has no prior criminal record,
       however, in this case Defendant took advantage of a position of trust
       reflected not only in this case relating to Jacob, but the same with
       Christopher and Michael, both of whom testified and were cross-examined.
       Aimee and Erica’s statements were very compelling in terms of the trauma
       inflicted upon them.

               “And in light of all of these instances, Defendant has demonstrated a
       total lack of any remorse whatsoever. And that lack of remorse is a factor
       that the Court gives great weight to.

              “Absent the prior acts on Michael, Christopher, Aimee and Erica,
       Defense Counsel’s argument for the mid-term would be persuasive. But
       the violation of a position of trust on Jacob, coupled with the other acts,
       compels and directs that the aggravated term of eight years be fixed.

              “Again, to repeat, Defendant’s total lack of remorse for any or all of
       his conduct that this Court has been apprised of.

              “And, again, Defendant will be imprisoned for the aggravated term
       of eight years.”
       B.     Law and Analysis
       Sentencing courts have wide discretion in weighing aggravating and mitigating
factors and may balance them against each other in qualitative as well as quantitative
terms. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) A trial court may base an
upper term sentence upon any aggravating circumstance the court deems significant.
(People v. Sandoval (2007) 41 Cal.4th 825, 848.) Absent a showing the sentence is
irrational or arbitrary, it is presumed the trial court acted to achieve legitimate sentencing
objectives. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831–832.)
       Aggravating factors are factors that make a crime “distinctively worse than the
ordinary.” (People v. Moreno (1982) 128 Cal.App.3d 103, 110.) Thus, facts that are

                                             15.
more egregious than whatever is necessary to establish the offense may properly establish
an aggravating factor or factors. (See People v. Miranda (1987) 196 Cal.App.3d 1000,
1003.) “Only a single aggravating factor is required to impose the upper term.” (People
v. Osband (1996) 13 Cal.4th 622, 728.)
       Defendant complains the trial court erroneously relied upon the concept defendant
violated a position of trust3 because there was no evidence of such a position. We do not
agree. The record contains evidence defendant “asked [Jacob] a lot of questions” about
Bible camp prior to the incident. Later that evening, defendant approached Jacob, who
was alone in a bedroom. He locked the door, lay down next to Jacob on a twin-sized
mattress, and told Jacob “‘God sends me little boys,’” while kissing and touching him.
Further, defendant was an adult living in the home where Jacob and his family were
temporary guests, and Jacob thought of defendant’s mother as a grandmother-figure. We
find this evidence speaks directly to the issue of defendant occupying a position of trust
or confidence as it related to the incident with Jacob.
       The court also gave “great weight” to defendant’s lack of remorse. Significantly,
defendant does not challenge the court’s finding in this regard however. Hence,
imposition of the upper term was not error because a single aggravating factor is all that
is required to impose an upper term. (People v. Osband, supra, 13 Cal.4th at p. 728.)
       Next, defendant maintains the trial court erred by failing to consider the mitigating
factors of his schizophrenia and lack of a criminal record. This assertion is inaccurate.
       California Rules of Court, rule 4.423(b)(2) provides that the fact a “defendant was
suffering from a mental or physical condition that significantly reduced culpability for the
crime” is a mitigating factor. And here, the court expressly stated: “it is obvious to the
Court that the Defendant does suffer from mental health issues.” Plainly then, the court
considered defendant’s mental health, a subject with which it was familiar given the
competency issues that preceded the trial and by way of the testimony offered at trial by

       3California   Rules of Court, rule 4.421(a)(11): “The defendant took advantage of a
position of trust or confidence to commit the offense.”

                                               16.
defense witness Howard Terrell, M.D. Moreover, as the court indicated, it had reviewed
the probation report, as well as the sentencing memoranda prepared by the parties. Both
addressed defendant’s mental health. And although the trial court was not required to
indicate its reason for rejecting this mitigating factor (People v. Davis (1980) 103
Cal.App.3d 270, 281, disapproved on other grounds in People v. Sumstine (1984) 36
Cal.3d 909, 921, fn. 8), it did so here: “But the Court is satisfied that [defendant] knew
precisely what he was doing on July 20th, 2011.” The court did not abuse its discretion
by rejecting defendant’s mental illness as a mitigating factor.
       Further, despite defendant’s complaint, the court did in fact consider his lack of
criminal record: “The Court recognizes that Defendant has no prior criminal record ….”
Again, the court is not required to indicate its reason for rejecting a mitigating factor.
(People v. Davis, supra, 103 Cal.App.3d at p. 281.) And it may balance those factors as
it sees fit. (People v. Avalos, supra, 47 Cal.App.4th at p. 1582.)
       Finally, we do not agree with defendant’s characterization that the trial court
“relied extensively” on the uncharged acts in imposing its sentence. It is clear from this
record the court carefully considered a number of factors, not the least of which included
the effect defendant’s act had on Jacob.
       In sum, the sentence imposed was neither irrational nor arbitrary. The trial court
did not abuse its discretion.
                                      DISPOSITION
       The judgment is affirmed.
                                                           ___________________________
                                                                               PEÑA, J.
WE CONCUR:


 ________________________________
DETJEN, Acting P.J.


 ________________________________
FRANSON, J.

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