Background

An amended complaint filed August 2, 2007, set out nine counts: (1) two counts alleging felony violations of section 288a, subdivision (c)(1) (oral copulation with a minor under 14 years of age and more than 10 years younger than the perpetrator); three counts alleging felony violations of section 288, subdivision (a) (lewd act with child under 14 years of age); and four counts alleging felony violations of section 311.11, subdivision (a) (possession of pornographic material depicting a minor). The five counts stating violations of either section 288a or 288 allegedly occurred between December 20, 2006, and May 15, 2007. The four counts stating violations of section 311.11 allegedly occurred on or about August 1, 2007.

On August 28, 2007, the trial court dismissed the foregoing nine counts on motion of the district attorney, and defendant pleaded guilty to a new count tena felony violation of section 288.5 (three or more acts of substantial sexual conduct, over a period of at least three months, with a child under 14 years of age), a violation occurring between December 20, 2006, and May 15, 2007. The dismissals and guilty plea were pursuant to an agreement that included the district attorneys promise not to file any other charges based on alleged sexual misconduct occurring prior to the date of defendants plea of guilty as to the violation of section 288.5. The parties additionally agreed that defendant would not be eligible for probation but would be sentenced to a prison term to be determined by the court after considering a presentencing report to be prepared and submitted by the probation office. Defendants admitted violation of section 288.5 carried a determinate sentence of 6, 12, or 16 years in state prison. ( 288.5, subd. (a).)

At the sentencing hearing held November 30, 2007, the trial court sentenced defendant to the upper or aggravated prison term of 16 years. This appeal followed. ( 1237.5.)

Discussion

A. Sentencing Error in Violation of Harvey

When determining a defendants sentence, a trial court may not considerfor purposes of aggravating or enhancing the sentenceany counts dismissed pursuant to a plea agreement, or any of the facts underlying and pertaining solely to such dismissed counts, at least in the absence of a waiver given by the defendant that authorizes the court to do so. (Harvey, supra, 25 Cal.3d at p. 758.) In this case, the record indicates defendant did not give such a Harveywaiver in connection with the plea agreement that included dismissal of the nine counts initially pleaded in the complaint.

Defendant points out that the probation report discussed four of the dismissed counts related to his possession of child pornography in violation of section 311.11, as well as the facts underlying those counts. Specifically, the report described four digital images recovered from a computer memory stick, which investigating officers found during a search of defendants residence on August 1, 2007. It appears these images, depicting child pornography, were the basis for the four dismissed counts under section 311.11, which offenses were alleged to have occurred on or about the date of the search. Defendant notes that, while the court stated at the outset of the sentencing hearing that it had considered the probation report, it did not state for the record that it had not considered these dismissed counts or their underlying facts in reaching its decision to impose the upper prison term. Defendant further adverts to a statement made by the district attorney at the sentencing hearing, that as part of the circumstances the court [could] consider that pornography [had been] located. Additionally, a detective who spoke at that hearing mentioned the child pornography images recovered during the search of defendants residence. Finally, defendant recites the following comments, which the trial court itself made before making its ruling: Im not sure [pedophilia] is something that can ever be treated into remission without there being a constant danger of reoffense. And I think the information that the courts received about computerized [images], further just underscores the fact that this is what [defendants] mental condition is.

Based on the foregoing, it is defendants position that the court erred in reaching its sentencing decision, because in doing so it relied at least in large part on facts underlying the dismissed counts under section 311.11 in violation of the proscription stated in the decision in Harvey, supra, 25 Cal.3d 754.

The Attorney General contends defendant made no objection below on this ground, and has therefore forfeited his right to argue the issue before this court. It is true that a claim of error under Harvey, supra, 25 Cal.3d 754, is subject to forfeiture when a defendant fails to make any objection to the trial court on that ground. (See In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1685, fn. 8.) A reviewing court, however, retains discretion to review possible sentencing error despite a partys failure to bring the issue to the lower courts attention. (See People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6 (Williams).) We choose to exercise that discretion in this instance, primarily because the trial court initially expressed a tentative decision to impose the middle term sentence of 12 years in state prisonas the probation office had recommendedand stated further that its decision whether to impose to middle term or upper term prison sentence was a close call.

Turning to the merits of defendants claim, we begin with the presumption that the court acted properly to achieve the legitimate objectives of the sentencing law. (See People v. Superior Court (Alvarez)(1997) 14 Cal.4th 968, 977-978 (Alvarez).) Here it is apparent the court was well aware defendant had never provided a Harveywaiver (Harvey, supra, 25 Cal.3d 754). The minute order of August 28, 2007, in which the court dismissed the first nine counts and accepted defendants guilty plea as to a new tenth count, included a checklist entry to indicate whether any Harveywaiver had been obtained, and this item was not checked.

It is true the trial court commented at one point on the computerized [images] that were described in the probation report and were mentioned again by the detective who spoke at the sentencing hearing. Nevertheless, we view this comment in the context of the courts sentencing remarks overall. The probation report stated that the victim was defendants granddaughter, and was five years of age when the events to which defendant pleaded guilty occurred. When the childs motherdefendants daughterconfronted defendant about his molestation of the child, defendant admitted to his daughter that he had also molested her over 30 years earlier, for a period of some six months, when his daughter was eight or nine years of age. Defendant further admitted to his daughter that he had been interested in Internet pornography, and that he needed daily help to keep himself out of situations where he would have any inclination to do anything. It is clear to us the court relied on these circumstanceswhich were properly submitted for its considerationwhen it stated its belief that defendant was a pedophile whose condition had been an ongoing issue for decades such that he that posed a substantial danger to the community. As such, when it mentioned computerized [images] immediately afterward, the court was, in effect, reciting nothing more than a cumulative factor that merely underscored the opinion it had otherwise reached regarding defendants mental condition.

More importantly, the trial court went on to base its sentencing decision expressly on the aggravating factors that defendants crime had involved a incredible breach of trust arising from his relationship with the victim and the victims parents, and the fact that his victim was not simply a minor under the age of 14, as alleged in the charge to which defendant had pleaded guilty, but was a more vulnerable child only five years of age. (See rule 4.421(a)(3), (11).)

The record does not, in our view, show affirmatively that the court disregarded the principle stated in Harvey, supra, 25 Cal.3d 754, despite its evident awareness of the lack of any waiver authorizing it to consider the facts underlying the dismissed counts. There is, for example, no indication that it accepted at face value the prosecutors statement that it could properly consider the fact that pornography [had been] located. Nor does it appear affirmatively that the court, simply by making a passing reference to computerized [images], relied improperly on those images in violation of Harvey when it imposed the upper term sentence.

Finally, as defendant concedes, any error in violation of the principle stated in Harvey, supra, 25 Cal.3d 754, is subject to the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Avalos (1984) 37 Cal.3d 216, 233 (Avalos).) As we have already observed, the trial courts remark concerning the images underlying the dismissed charges under section 311.11 was at best peripheral to its express reliance on the aggravating factors of the victims vulnerability and defendants abuse of a position of trust or confidence in order to commit the offense. (Rule 4.414(a)(3), (9).) Even if we assume the court erred in considering the images at all, we conclude it was harmless errorit was not reasonably probable that the court would have reached a decision more favorable to defendant in the absence of that error. (Avalos, supra, at p. 233.)

B. Abuse of Discretion in Selecting the Upper Term Prison Sentence

Defendant urges that the courts selection of the upper term prison sentence constituted an abuse of discretion. He reasons that not only did the court improperly consider the facts underlying the dismissed counts under section 311.11, it additionally characterized defendant as a pedophile without the benefit of any expert opinion testimony showing that defendant did, in fact, suffer from this mental disorder. Defendant further complains that the court improperly disregarded letters written by friends and colleagues, letters that attested favorably to his character. In his view the court mistakenly assumed the letters had been written by individuals who were unaware of the nature of his offenses, yet many of the letters included statements indicating that they had been written by individuals who were, in fact, aware of the charges against defendant. Lastly, defendant, citing to rule 4.423(a)(6), urges that the court failed to consider the mitigating circumstance that he exercised caution to avoid harm to the victim, or in any event did not actually harm or threaten to harm the victim.

Here again, and for the same reasons expressed above, we exercise our discretion to review these claims on their merits, despite defendants failure to raise these objections below. (Williams, supra, 17 Cal.4th at pp. 161-162, fn. 6.)^[]

We emphasize that it is defendants burden to show clearly that the trial courts sentencing decision was irrational or arbitrary. We are neither authorized nor warranted in substituting our own judgment for that of the trial court, and will not reverse the courts imposition of the upper term prison sentence decision merely because another judge might reasonably have arrived at a sentencing decision more favorable to defendant under the same circumstances. (See Alvarez, supra, 14 Cal.4th at pp. 977-978.)

As discussed above, we have determined that the trial court did not commit prejudicial error by considering the facts underlying the dismissed charges of violating section 311.11. We conclude similarly that the courts characterization of defendant as a pedophile was not prejudicial, because it does not affirmatively appear that this description of defendants mental condition formed any part of the aggravating circumstances set out in rule 4.421(a)(3) and (11), on which the court expressly relied in selecting the upper term prison sentence. A single, legitimate aggravating factor is sufficient to support a trial courts selection of the upper term of a determinate sentence. (People v. Osband (1996) 13 Cal.4th 622, 728.) By the same token, a sentencing court does not abuse its discretion simply by disregarding a mitigating factor. (See People v. Salazar (1983) 144 Cal.App.3d 799, 813.) We cannot say that the court in this case acted irrationally or arbitrarily by rejecting as a mitigating factor the circumstances described in rule 4.423(a)(6)circumstances that both defendants trial counsel and defendant himself attempted to advance at the sentencing hearing.^[] The court was, similarly, well within its discretion to reject as a mitigating circumstance the letters written by defendants friends and colleagues.

In sum, we conclude there was no abuse of the discretion in the trial courts selection of the upper term prison sentence.

Disposition

The judgment and sentence are affirmed.

_________________________

FLINN, J.^*

We concur:

_________________________

MARCHIANO, P. J.

_________________________

MARGULIES, J.

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^[]People v. Harvey(1979) 25 Cal.3d 754 (Harvey).

^[]Because we have exercised our discretion to consider the merits of defendants principal contentions, we deem it unnecessary to address his secondary argument as to eachthat he was prejudiced by ineffective assistance of trial counsel because of the latters failure to object on these grounds below.

^[]Defendants trial counsel argued there was no evidence that the victim had suffered penetration or other physical injury, and defendant stated the victim had said she did forgive him, each thus intimating that defendant had committed the admitted offense in a manner calculated to avoid the infliction on the victim of any actual, lasting harm.

^*Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.