Filed 8/26/15 P. v. Delena CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E061261

v.                                                                       (Super.Ct.No. FVI1101849)

DAVID IGNACIO DELENA, JR.,                                               OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Elia V. Pirozzi,

Judge. Affirmed.

         Steven A. Torres, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, and Sean M.


Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.



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                                               I

                                     INTRODUCTION1

       Defendant David Ignacio Delena Jr. molested his two stepdaughters. A jury

convicted defendant of two counts of continuous and substantial sexual abuse of a child

under the age of 14 with special allegations for multiple victims. (§§ 288.5, subd. (a),

and 667.61, subds. (b) and (e).) We affirmed the judgment in a previous appeal

(E056696) but remanded to the trial court for resentencing on count 1 and for the court to

exercise its discretion as to whether the sentences should be consecutive.

       On April 4, 2014, the trial court sentenced defendant to the upper term of 16 years

on count 1 under section 288.5 and a consecutive indeterminate sentence of 15 years to

life on count 2. On appeal, defendant argues the trial court abused its discretion by

imposing the upper term of 16 years, instead of the middle term of 12 years, on count 1.

We disagree and affirm the judgment.

                                              II

                    FACTUAL AND PROCEDURAL BACKGROUND

A. Testimony on Count 1

       As set forth in greater detail in our previous opinion, defendant repeatedly

molested both his stepdaughters when they were between the ages of 10 and 14.

Defendant argues the trial court abused its discretion when it imposed the upper term of


       1   All statutory references are to the Penal Code.



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16 years on count 1, which involved conduct against Z.R. Z.R. testified that, when she

was 10 years old, defendant began touching and rubbing her sexually. When she was in

middle school, defendant vaginally penetrated her. On other occasions, defendant tackled

her in a bedroom and a hallway and tried to assault her.

       For ease of reference, we incorporate our previous opinion’s account of Z.R.’s

testimony:

       “Defendant would tackle Z.R. and smack her buttocks with frequency. He rubbed

against her while she was on the floor and made her uncomfortable. . . .

       “Defendant started sexually touching Z.R. in the fourth grade when she was 10

years old . . . in 2003. Defendant would touch her breasts, rub against her buttocks, and

touch her genitals over her clothes. It happened every day, more than 50 times, and for

longer periods than others, depending on whether other people were around. She did not

complain because she was afraid of defendant and did not want to cause trouble in the

family.

       “Z.R. specifically remembered three incidents . . . . [¶] . . . On a summer night,

Z.R. and her brothers and sisters were asleep. When Z.R. awoke, defendant was on top

of her and his penis was inside her vagina. Defendant whispered to her that he ‘wanted

her’ and was moving up and down on her. He did not ejaculate. She did not disclose the

incident because she did not want anyone to be mad at her.

       “A second incident occurred when . . . Z.R. was 13 years old or younger. Z.R. had

just finished showering and was wearing a robe. Defendant pushed her on the bed,


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opened her robe, and got on top of her while clothed. She screamed and ran from the

room and told her mother, who was in the shower. Then she went to the garage to get

some clothes from the dryer. Defendant followed her and told her no one would believe

her. A third incident happened . . . when defendant rubbed against her in the hallway

after tackling her to the floor.”

B. Resentencing on Count 1

       After remand following the first appeal, the trial court conducted a resentencing

hearing. The prosecutor argued there were no mitigating factors and the aggravating

factors included that defendant had assaulted two vulnerable minor victims; he had an

extensive criminal history; and he had violated a position of trust.

       Defense counsel argued the court should impose the middle term of 12 years

because defendant’s conduct was not sufficiently egregious to justify an aggravated

sentence of 16 years, in conjunction with an indeterminate sentence of 15 years to life.

       The trial court imposed the aggravated term, reasoning: “The crime involves great

violence, [great] bodily injury, great threat of great bodily harm, and or other facts of

high cruelty, egregiousness, and callousness. [¶] The victim was particularly vulnerable

as a result of the age and unsophistication of the victim, as well as the circumstances she

was placed in as a result of the defendant’s actions. The defendant took advantage of a

position of trust or confidence to commit the offense by virtue of, among other factors,

the relationship between he and the victim as a stepfather and father figure. The

defendant’s prior convictions as an adult are numerous, which include both felonies and


                                              4
misdemeanors. I believe two felonies and four misdemeanors, convictions of

approximately six in total. A fact, which is relied upon by the Court in selecting the

aggravated term for this subject crime.” The court did not find any mitigating

circumstances.

                                              III

                                        DISCUSSION

       We review trial court’s sentencing decision for an abuse of discretion, as to

whether it “exceeds the bounds of reason.” (People v. Giminez (1975) 14 Cal.3d 68, 72.)

“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.’” (People v. Sandoval (2007) 41 Cal.4th 825, 847.) The trial court should not

rely on irrelevant circumstances or improper grounds. A trial court is “required to

specify reasons for its sentencing decision, but will not be required to cite ‘facts’ that

support its decision or to weigh aggravating and mitigating circumstances.” (Sandoval, at

pp. 846-847.) Under California’s determinate sentencing law, “a trial court is free to base

an upper term sentence upon any aggravating circumstance that the court deems

significant, subject to specific prohibitions.” (Id. at p. 848.) “[T]he existence of a single

aggravating circumstance is legally sufficient to make the defendant eligible for the upper

term.” (People v. Black (2007) 41 Cal.4th 799, 813.)

       The California Rules of Court describe the aggravating and mitigating factors on


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which a sentencing judge may rely in choosing among the three possible terms. (Cal.

Rules of Court, rules 4.420, 4.421, 4.423, 4.428.) The factors used in selecting the

sentence must be supported by a preponderance of the evidence in the record. (People v.

Scott (1994) 9 Cal.4th 331, 349-350; Cal. Rules of Court, rule 4.420(b).) The factors on

which the sentencing court relies must be “reasonably related to the decision being

made.” (Cal. Rules of Court, rule 4.408(a).) Here the factors considered should be

relevant to the decision about whether the circumstances of the offense and defendant’s

personal characteristics “establish a danger to society sufficient to justify such a

prolonged period of imprisonment.” (In re Rodriguez (1975) 14 Cal.3d 639, 655.)

       Selection of the upper term must be based on the existence of aggravating factors.

(§§ 1170, subd. (b), 1170.1, subd. (a); Cal. Rules of Court, rule 4.420(b).) An

“aggravating” fact is one which makes a particular offense “distinctively worse than the

ordinary” offense. (People v. Moreno (1982) 128 Cal.App.3d 103, 110; People v. Price

(1984) 151 Cal.App.3d 803, 813.) Defendant contends his offense against Z.R. was not

distinctively worse than other similar sex crimes.

       Defendant first argues his crime did not involve great violence, threat of violence,

or particular vulnerability. We disagree. Defendant groped Z.R. continuously for several

years. He used physical force against her. She described him tackling her and hitting her

on the buttocks. He raped her while she was sleeping and used force against her on two

other specific occasions that she remembered. She did not report what was happening

because she was afraid of him.


                                              6
       The foregoing also demonstrates that Z.R. was a particularly vulnerable victim.

(People v. Spencer (1996) 51 Cal.App.4th 1208, 1223; People v. Bloom (1983) 142

Cal.App.3d 310, 321; People v. Smith (1979) 94 Cal.App.3d 433, 436.) The victim’s

incapacity when she was asleep during the rape, her fear of disclosing the molestations,

and defendant’s physical control of the victim are factors which made Z.R. a particularly

vulnerable victim. (People v. Loudermilk (1987) 195 Cal.App.3d 996, 1007; People v.

Garcia (1985) 166 Cal.App.3d 1056, 1069-1070.) Furthermore, defendant indisputably

took advantage of a position of trust as defendant’s stepfather. (Cal. Rules of Court, rule

4.421(a)(11); People v. Jones (1992) 10 Cal.App.4th 1566, 1577; People v. Clark (1992)

12 Cal.App.4th 663, 666; People v. Belasco (1981) 125 Cal.App.3d 974, 984.)

       Defendant’s criminal history was also an aggravating factor. (Rule 4.421(b)(2);

People v. Black, supra, 41 Cal.4th at p. 818.) His theft and drug offenses in 1998, 1999,

and 2000 and his domestic violence offenses in 2010 and 2011 are germane to the issue

of defendant’s personal characteristics and his potential dangerousness to society.

       Finally, any error was harmless: “In order to determine whether error by the trial

court in relying upon improper factors in aggravation requires remanding for

resentencing ‘the reviewing court must determine if “it is reasonably probable that a

result more favorable to the appealing party would have been reached in the absence of

the error.” (People v. Watson [(1956)] 46 Cal.2d [818, 836].)’ [Citation.] However,

‘[the] statutory preference for imposition of the middle term, when coupled with the

requirement that aggravating circumstances must outweigh mitigating circumstances


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before imposition of the aggravated term is proper, creates a presumption.’ [Citation.]

Thus, the reviewing court may not simply ask whether the imposed sentence would be

‘wholly unsupported or arbitrary in the absence of error’ but must also reverse where it

cannot determine whether the improper factor was determinative for the sentencing court.

[Citation.]” (People v. Avalos (1984) 37 Cal.3d 216, 233; People v. Jones (2009) 178

Cal.App.4th 853, 861.)

       The court imposed the upper term based on at least four aggravating factors and no

mitigating factors. A single aggravating factor suffices to support the upper term.

(People v. Black, supra, 41 Cal.4th at p. 813; People v. Osband (1996) 13 Cal.4th 622,

730.) There was no reasonable probability of a more favorable sentence.

                                            IV

                                     DISPOSITION

       The trial court did not abuse its discretion by imposing the upper term of 16 years

on count 1 in addition to the indeterminate sentence of 15 years to life on count 2. We

affirm the judgment.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                               CODRINGTON
                                                                                           J.
We concur:


RAMIREZ
                         P. J.


HOLLENHORST
                            J.


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