Filed 1/12/16 P. v. Barker CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A143846
v.
TYE WILSON BARKER,                                                   (Del Norte County Super. Ct.
                                                                     No. CRF129639)
         Defendant and Appellant.



         Defendant appeals from a sentencing order and contends that the trial court abused
its discretion when it sentenced him to the upper term for his conviction of having
unlawful sexual intercourse with a person under the age of 18 and more than three years
younger than defendant. (Pen. Code, § 261.5, subd. (a).)1 He claims that the trial court
improperly sentenced him to the aggravated term based solely on the victim’s age,
because her age was an element of the crime. We conclude that age was not the sole
reason for the trial court’s finding the victim particularly vulnerable and the trial court did
not abuse its discretion in sentencing defendant to the upper term. Accordingly, we
affirm.2




         1
             All further unspecified code sections refer to the Penal Code.
         2
         We will, however, direct the trial court to amend the abstract of judgment to
correct certain clerical errors therein.

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                                    BACKGROUND
       The facts, as set forth in the presentence investigation report and the preliminary
hearing, provide that Del Norte County Sheriff’s Deputy Richard Donaldson was on foot
patrol at a trailer park in Crescent City about 2:00 a.m. on October 30, 2012. He spotted
defendant and noticed that his body had bloody cuts and his clothes had blood spatters.
He knew defendant from previous contacts and asked him if he had been in a fight.
Defendant appeared angry, and refused to explain what had happened. He also declined
medical treatment.
       As Donaldson was talking to defendant, he received a phone call from a sergeant
informing him that an anonymous source reported that defendant, who was 20 years old
at the time, was having a sexual relationship with a 13-year-old girl. Donaldson asked
defendant about this alleged sexual relationship and defendant became hostile and
aggressive. Donaldson told defendant that “he was free to leave” and that he was not
being detained. Defendant responded, “No, I want to know what you know.” Donaldson
disclosed that he had received information that defendant might have had a sexual
relationship with Jane Doe (the victim), a thirteen-year-old girl. Defendant said several
people had beaten him up because the victim was telling them he had sex with her. He
said that he did not know who the people were that had beaten him up and, if he knew, he
would not tell Donaldson.
       A short time later, Donaldson went to the victim’s home after being told defendant
was in a verbal altercation with the victim’s mother. When Donaldson arrived, defendant
was on the front porch screaming at the victim’s mother. The victim was across the street
with another female and was crying. Donaldson and another officer placed handcuffs on
defendant and put him into the patrol car.
       After placing defendant into the patrol car, Donaldson was told that the victim
wished to speak to him about her relationship with defendant. Donaldson interviewed
her; she was extremely upset and was crying. She told him that she was 13 years old.
The victim said that defendant was her mother’s friend, that she had known him for
several years, and that on several occasions he had spent the night at her residence. The


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victim disclosed that she had Facebook messages with defendant, which indicated he had
sex with her.
       The victim reported that defendant “had come on to her over a three-month
period.” One of the incidents was about three weeks earlier; defendant and she were
alone in the living room and the other occupants were asleep. She stated that defendant
put his hands down her pants and touched her vagina over her underwear. She told him
to stop and he did. A second incident occurred in defendant’s trailer that had been parked
in the backyard of her residence. Defendant attempted to have sex with her by kissing
her and pulling her on top of him. She also described a third incident in her bedroom and
indicated she had “consensual” sex with defendant while her mother was away.
       The victim reported that several weeks after the “consensual” sex, she met with
defendant to “smoke.” Defendant informed her that they had sex on a second occasion
while she was passed out. The victim had no recollection of the incident but believed,
based on what defendant had told her, that she might have been raped. She did not have a
physical examination after receiving this information.
       After the interview with the victim, Donaldson again spoke to defendant and he
waived his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. He denied having
a sexual relationship with the victim or ever touching her inappropriately. Donaldson
arrested defendant.
       Later the same day, the victim and her mother met with Donaldson at the sheriff’s
office. The victim printed out a copy of the conversation she had with defendant on
Facebook. Donaldson noticed that the victim had mentioned using marijuana and alcohol
with defendant. He also noted that in a conversation on October 2, 2012, the victim told
defendant that she felt like she had been raped because she could not remember having
sex with him. Defendant responded, “ ‘I feel uncomfortable about this situation.’ ” The
victim asked him why and he replied, “ ‘I don’t know. I kind of wish it did not
happen.’ ”
       Defendant was interviewed at the jail and denied ever having a conversation with
the victim on Facebook. He claimed that someone had stolen his password and he had to


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make a new Facebook page. He again denied having any sexual relationship with the
victim.
        On November 13, 2012, an information was filed charging defendant with a lewd
act upon a child (§ 288) in count 1, and with unlawful sexual intercourse with a person
under 18 and more than three years younger than himself (§ 261.5, subd. (c)) in counts 2
and 3. On December 6, 2012, defendant entered a plea of no contest to count 2; counts 1
and 3 were dismissed.
        On January 4, 2013, the probation department interviewed defendant. He stated
that he knew the victim and her mother through the victim’s stepfather. Prior to this
incident, the victim’s stepfather, according to defendant, had allowed him to stay with
them.
        On January 17, 2013, the trial court suspended imposition of sentence and placed
defendant on probation for three years.
        On October 29, 2013, a petition for revocation of probation was filed against
defendant, alleging that he committed vandalism (§ 594, subd. (a)(2)). On November 18,
2103, the trial court revoked defendant’s probation.
        On January 3, 2014, a second petition for revocation was filed against defendant.
This petition alleged that defendant failed to report to the probation department, failed to
complete community service, failed to obtain his G.E.D. as ordered by the court, and
possessed a controlled substance in violation of Health and Safety Code section 11350.
        A third petition for revocation of probation was filed on November 5, 2014,
alleging that defendant had failed to appear to answer the two previous petitions.
        On November 12, 2014, a fourth petition for revocation of probation was filed
against defendant. This petition alleged that defendant resisted or obstructed a peace
officer in violation of section 148, and possessed drug paraphernalia in violation of
Health and Safety Code section 11364.
        On November 17, 2014, defendant admitted the allegations of the four petitions
for revocation.



                                              4
       On December 4, 2014, the probation department filed a presentence investigation
report recommending that the trial court sentence defendant to a three-year upper term for
unlawful sexual intercourse with a minor pursuant to section 1170, subdivision (h). The
report specified the following circumstances in aggravation under California Rules of
Court, rule 421: the victim was particularly vulnerable (Cal. Rules of Court, rule
421(a)(3)), the defendant’s prior convictions as an adult or sustained petitions in juvenile
delinquency proceedings were numerous or of increasing seriousness (id., (b)(2)), the
defendant was on probation or parole when the crime was committed (id., (b)(4)), and the
defendant’s prior performance on probation or parole was unsatisfactory (id., (b)(5)).
The report also provided: “The aggravated term seems most appropriate in this matter as
the defendant has denied his actions in this matter since the date of his original
sentencing, attempting to make himself out to be a victim.” The report noted that there
were no circumstances in mitigation under California Rules of Court, rule 423.
       The trial court held a sentencing hearing on December 11, 2014. The court stated
that its tentative ruling was to follow the recommendation to impose the aggravated
sentence term.
       Defendant’s counsel argued that one of the reasons stated in the report for
aggravating defendant’s sentence term was that the victim was particularly vulnerable.
Counsel asserted that originally “she was a willing participant and consented to unlawful
sexual intercourse” with defendant. He maintained that he had a photograph of the
victim, which revealed that she was a “fully mature young lady” and appeared to be in
her 20s. Counsel argued that defendant was not her teacher and did not have a power
position and therefore this situation did not satisfy the criterion that the victim was
particularly vulnerable. He added that the age difference was an element of the crime.
Counsel contended that the report should have indicated in mitigation that he
acknowledged wrongdoing. Counsel also questioned the report’s statement regarding
defendant’s prior criminal history, and observed that a rap sheet had not been attached to
the probation report.



                                              5
         The prosecution countered that this was “absolutely an aggravated case.” He
added: “This is a particularly vulnerable victim just by virtue of her age. She’s 13 years
old. That factor in and of itself would outweigh any factors in mitigation . . . .”
         The trial court noted that it found “the argument that the victim and the defendant
were not in a relationship where the defendant had a position of trust to be somewhat
disingenuous. [¶] With a 13-year-old victim and with you[r] being more than three years
older than this victim, you have someone who is incapable of consenting to having sexual
intercourse with you. Your behavior was completely inappropriate. [¶] When I read the
presentence [re]investigation report that was prepared at the time when you were
originally sentenced, you were not acknowledging any wrongdoing with that. You were
not taking responsibility, so that’s a change for the better for you to acknowledge that
what you did was wrong.”
         The trial court acknowledged that defendant had a minimal criminal history but
found the crime itself warranted imposition of the aggravated sentence. The court thus
sentenced defendant to the upper term of three years for the original conviction of
unlawful sexual intercourse with a minor (§ 261.5, subd. (c).
         Defendant filed a timely notice of appeal.
                                       DISCUSSION
                        I. Sentencing Defendant to the Upper Term
A. Defendant’s Sentence and the Standard of Review
         Defendant pled guilty to having unlawful sexual intercourse with a person under
the age of 18 years and more than three years younger than defendant. (§ 261.5, subd.
(c).) Under section 1170, subdivision (h), defendant faced a term of imprisonment in a
county jail for 16 months, two years, or three years. The trial court sentenced him to the
upper term of three years.
         Defendant contends the trial court abused its discretion by sentencing him to the
upper term of three years. He maintains that the court based its decision on the victim’s
age but age could not be used as an aggravating factor because it was an element of the
crime.


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       A trial court has broad discretion to decide whether to select the upper, middle, or
lower term of imprisonment (§ 1170, subd. (b)), and must be affirmed unless there is a
clear showing the sentence choice was arbitrary or irrational (People v. Hubbell (1980)
108 Cal.App.3d 253, 260). “In determining the appropriate term, the court may consider
the record in the case, the probation officer’s report, other reports, . . . , and statements in
aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or
the family of the victim if the victim is deceased, and any further evidence introduced at
the sentencing hearing. The court shall select the term which, in the court’s discretion,
best serves the interests of justice. The court shall set forth on the record the reasons for
imposing the term selected and the court may not impose an upper term by using the fact
of any enhancement upon which sentence is imposed under any provision of law.”
(§ 1170, subd. (b); see also Cal. Rules of Court, rule 4.420(b).)
       “ ‘Sentencing courts have wide discretion in weighing aggravating and mitigating
factors [citations]), and may balance them against each other in qualitative as well as
quantitative terms.’ [Citation.] One factor alone may warrant imposition of the upper
term [citation] and the trial court need not state reasons for minimizing or disregarding
circumstances in mitigation [citation]).” (People v. Lamb (1988) 206 Cal.App.3d 397,
401.) “A ‘ “ ‘judgment or order of the lower court is presumed correct[, and a]ll
intendments and presumptions are indulged to support it on matters as to which the
record is silent, and error must be affirmatively shown.’ ” [Citation.]’ ” (In re Julian R.
(2009) 47 Cal.4th 487, 498-499.)
B. No Abuse of Discretion
       As noted, here, defendant contends the trial court abused its discretion by relying
on the victim’s age as the sole aggravating factor, since this was an element of the crime.
Defendant asserts that the victim’s vulnerability was based on her age and that was an
element of the crime. A fact that is an element of the crime upon which punishment is
being imposed may not also be used to impose the upper term. (Cal. Rules of Court, rule
4.420(d).) He claims there was nothing in the record other than age that showed the
victim was particularly vulnerable or that defendant was in a position of trust.


                                               7
       Defendant is correct that imposing an upper term “due to ‘particular vulnerability,’
where vulnerability is based solely on age, is improper when age is an element of the
offense. [Citations.]” (People v. Dancer (1996) 45 Cal.App.4th 1677, 1693-1694,
disapproved on another ground in People v. Hammon (1997) 15 Cal.4th 1117, 1118,
1123.) Even if we presume that the victim’s vulnerability was the sole basis for imposing
the upper term of three years, we conclude that the record clearly supported the trial
court’s determination that this single factor warranted imposing the aggravated term.
       Counsel for defendant argued that the victim’s age was an element of the crime
and that her age was the sole factor supporting a finding of vulnerability. The trial court
expressly rejected this contention and found “the argument that the victim and the
defendant were not in a relationship where the defendant had a position of trust to be
somewhat disingenuous.”
       The vulnerability sentencing factor means the victim is vulnerable “ ‘in a special
or unusual degree, to an extent greater than in other cases [and is] defenseless,
unguarded, unprotected, accessible, assailable . . . susceptible to the defendant’s criminal
act.’ [Citation.]” (People v. Clark (1990) 50 Cal.3d 583, 638.) This factor is determined
in light of the “ ‘total milieu’ ” in which the offense was committed. (People v. Dancer,
supra, 45 Cal.App.4th at p. 1694.)
       Both the personal characteristics of the victim and the setting of the crime are
relevant. (People v. Price (1984) 151 Cal.App.3d 803, 814.) Defendant argues that the
record did not show that he had any position of trust. He points out that he was not her
parent, quasi-parent, or caretaker. He maintains that there was no evidence of an ongoing
close or cordial relationship between defendant and her family. He argues that the victim
said he was a friend but did not describe how close of a friend.
       Defendant ignores the evidence in the record that amply supported a finding that
defendant had a position of trust and power with the victim. Defendant was a friend of
the victim’s mother and stepfather and lived in the trailer in the victim’s backyard. He
was sufficiently trusted by the victim’s mother and stepfather that, according to both the
victim and defendant, he was permitted to spend nights at the victim’s residence. The


                                             8
victim reported that she had known defendant for several years. Defendant slowly
cultivated the relationship; the victim reported that he “had come on to her over a three-
month period.” Defendant engaged in sexual contact with the victim while she was
visiting with him in his trailer and in her own home while the other occupants were
asleep or away. “These circumstances support the trial court’s finding that defendant
committed his offenses by exploiting the trust and confidence he had cultivated.”
(People v. Dancer, supra, 45 Cal.App.4th at p. 1695.)
       Furthermore, the element of the offense of which defendant was convicted is that
the victim was under the age of 18 and more than three years younger than the
perpetrator. (§ 261.5, subd. (c).) Here, at the time of the incident, the disparity in age
between defendant and the victim was seven years, not simply three years: defendant
was 20 years old and the victim was only 13. “[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.” (People v. Castorena (1996) 51
Cal.App.4th 558, 562.)
       Defendant relies on People v. Flores (1981) 115 Cal.App.3d 924, to argue that the
trial court abused its discretion when it sentenced him to the upper term. The Flores
court held that the aggravated sentence was invalid because it was based only on the
victims’ ages of 14 and 16, and age was an element of the crime. (Id. at p. 927.)
Defendant argues that the present situation is no different than the one in Flores.
       People v. Flores, supra, 115 Cal.App.3d 924 is unavailing because here, unlike the
trial court in Flores, the court did not rely exclusively on the victim’s age when
determining that the victim was particularly vulnerable. The trial court stressed the
significant age disparity and power relationship between the victim and defendant,
making this victim particularly vulnerable. (See People v. Estrada (1986) 176
Cal.App.3d 410, 418-419 [while the minority of a victim is an element of the substantive
offenses of sodomy and lewd or lascivious act on a person under the age of 14, the trial
court did not err in considering as an aggravating factor that one victim was a particularly
vulnerable, small child, who was shy and withdrawn].) Defendant committed his


                                              9
offenses by exploiting the victim’s trust and confidence. He took advantage of his
relationship with the victim’s mother and stepfather and gained unsupervised access to
the victim. A victim’s extremely young age or the fact that the under-age victim is
significantly younger than the perpetrator “together with other circumstances like the
time and location of the offense can establish ‘particular vulnerability’ as an aggravating
factor.” (See People v. Dancer, supra, 45 Cal.App.4th at p. 1694.)
       The record supports a finding that the victim was unguarded, unprotected, and
accessible, and that defendant cultivated and exploited the victim’s trust and confidence;
thus the victim was particularly vulnerable. (See People v. Loudermilk (1987) 195
Cal.App.3d 996, 1007.) Accordingly, the trial court did not abuse its discretion when it
sentenced defendant to the upper term based on a finding that the victim was particularly
vulnerable.
                                 II. Abstract of Judgment
       Defendant asserts that there are inconsistencies between the clerk’s transcript and
reporter’s transcript that need to be corrected and clarified. The People do not object to
this request.
       At the sentencing hearing, the trial court stated it was imposing the aggravated
sentence of three years, and then told defendant that he was being “placed on formal
probation for a period of three years.” Subsequently, the court clarified that it was
“imposing a sentence that was previously suspended. He’s serving a two-year term in
county jail, county jail prison, and then he’s doing a one-year sentence. It’s a split
sentence for one year mandatory supervision.” The court stated that it was not felony
probation.
       The abstract of judgment indicates that defendant’s sentence was three years and
that he was sentenced to county jail pursuant to section 1170, subdivision (h)(1). Line 10
refers to “mandatory supervision” and states that execution of a portion of the total jail
time imposed in “item 9” is suspended and deemed a period of mandatory supervision
under section 1170, subdivision (h)(5)(B). However, line 9 is blank and the suspended
portion of defendant’s sentence is designated in line 10 as being “3 years” with “730


                                             10
days” to be served “forthwith.” Defendant argues that this portion of the abstract, which
suggests a three-year suspended term, is confusing, and should be corrected to reflect the
court’s oral statement that defendant would serve two years in jail and one year on
mandatory supervision.
       Defendant also maintains that the abstract of judgment lacks clarity regarding
conduct credits. At line 14, the abstract indicates that the 261 days of conduct credits
were calculated pursuant to section 2933.1. Defendant agrees that the abstract reflects
the correct number of presentence credits, but points out that they should not have been
calculated under section 2933.1. Section 2933.1 is not applicable to a conviction under
section 261.5. Credits for time served in county jail pursuant to sentences under section
1170, subdivision (h) are governed by section 4019. Thus, line 14 of the abstract should
indicate that the presentence credits were calculated pursuant to section 4019, not section
2933.1.
       Defendant requests us to remand the matter for clarification of these sentencing
details. However, the People point out it is more efficient for this court to direct that the
abstract be conformed to the oral pronouncement of judgment. (See, e.g., People v.
Wilson (2010) 186 Cal.App.4th 789, 823.) We agree with the People and order the
abstract of judgment to be changed to reflect that defendant is serving two years in jail
and one year on mandatory supervision, and that his 261 days of conduct credits were
calculated pursuant to section 4019.
                                       DISPOSITION
       The trial court is directed to amend the abstract of judgment to correct the clerical
errors discussed in section II of this opinion. In all other respects, the judgment is
affirmed.




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                                 _________________________
                                 Kline, P.J.


We concur:


_________________________
Stewart, J.


_________________________
Miller, J.




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