Filed 5/15/18 P. v Fuhrmann CA4/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

JOSHUA PAUL FUHRMANN,

Defendant and Appellant.


G054253

(Super. Ct. No. 14HF1943)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant, Joshua Paul Fuhrmann, of forcible sodomy (Pen. Code, § 286, subd. (c)(2)(A); count 1), false imprisonment by violence (§§ 236, 237, subd. (a); count 3), and misdemeanor domestic violence battery (§ 243, subd. (e)(1); count 4). The jury was unable to reach a unanimous verdict on forcible rape (§ 261, subd. (a)(2); count 2), and the charge was later dismissed on the People’s motion. After denying defendant’s motion for a new trial, the court sentenced defendant to the midterm of six years on count 1. It imposed the midterm of two years on count 3, but stayed the sentence under section 654, and suspended the sentence for count 4.
Defendant contends the court wrongly denied his new trial motion based on juror misconduct. He also argues his sentence violates federal and state constitutional prohibitions on cruel and/or unusual punishment and the trial court abused its discretion by imposing the midterm on count 1. We reject his contentions and affirm the judgment.

FACTS

Defendant and the victim had lived together for about eight years with their two young daughters. In the year and a half leading up to the offenses, the relationship between defendant and the victim had been deteriorating. Despite defendant’s verbal and physical abuse, the victim stayed in the relationship for the sake of their family and because she and their children were financially dependent on defendant for food and the rent on their single family home, which was in his name alone.
By January 2014, the victim “pretty much disliked” defendant. The victim did not want to be intimate with him and they had sex only about once a week, which caused further friction. When the victim refused to have sex with defendant, he would withhold money and take the car so she could not buy food for the family. Defendant would also leave notes saying, “You should have just sucked my dick and then you would have some money.” Defendant had also been telling the victim for weeks that he was not going to renew the lease on their home because he wanted to be with someone who loved him and who would have sex with him.
On January 31, 2014, defendant and the victim communicated by text and regular phone calls throughout the day. That evening, when defendant was home with the victim and the children, he sent the victim a disturbing text message saying he wanted to have sex with her and would get it any way he desired. The victim waited until their girls were asleep and then texted him back that she was leaving because she did not feel safe. She then left the house and drove around the neighborhood.
After about half an hour, the victim returned and parked on the street in front of the house. As she sat in her car debating whether she should enter the house, defendant texted her saying he was going to bed. The victim decided to go in because she thought defendant was asleep and she was worried about the girls.
When the victim walked through the front door, she saw defendant coming toward her. He had ropes with metal hooks draped over his shoulders. The victim also saw “soft cuffs” or restraints, more rope, and a “ball gag” laid out on the couch. Defendant grabbed her and told her to take off her clothes. The victim complied because she was afraid of him. Defendant bound the victim’s ankles together and cuffed her hands behind her back. After allowing her to use the restroom, with her hands still cuffed behind her back so she could not wipe herself, defendant pushed her stomach onto the couch and started having vaginal sex with her. The victim asked him to stop but he continued until their girls, who were upstairs in their beds, started crying and asking for her. Defendant stopped and placed the victim in a hog-tie by binding her legs and hands together with rope before going upstairs for a few minutes to check on the children. When he came back downstairs, the victim said she needed to use the restroom again. This time he released her hands and allowed the victim to use the restroom. Defendant then re-cuffed her hands behind her back and started having vaginal sex with her again on the couch.
The girls began crying once more. The victim repeatedly asked him to stop, saying, “Please, why are you doing this to me? Please stop. The girls want me.” Defendant put the ball gag in her mouth so she could not talk and continued to have vaginal sex with her until the girls started crying louder. At that point, defendant took the ball gag out of the victim’s mouth and dragged her up the stairs to the second landing. When they were about three feet away from the children’s bedroom, defendant forced the victim to orally copulate him. He stopped when the girls began crying and asking for their mother again. Defendant went into the children’s bedroom and told them their mother was sleeping.
Afterwards, defendant brought the victim back downstairs and placed her on the couch with her back facing up. When defendant began rubbing his penis against the victim’s buttocks, she begged, “No. Please don’t do it,” “not without lube.” Disregarding her request, defendant forcibly sodomized the victim, causing her to scream. Their girls started screaming also and defendant went upstairs to check on them.
The victim was able to free one of her arms from the cuffs and grabbed a jacket to cover herself up. Then, while half-naked and with her legs still bound, the victim hopped out to the side yard and over to the nearest neighbor’s house where she pounded on the door, screaming, “Let me in. Let me in.” The neighbor opened the door but did not let her inside the house. “Freaked out because [she] could hear” defendant coming, the victim asked the neighbor to call the police.
The police arrived and found the victim alone on the neighbor’s porch, staring at the closed front door. An officer released the restraints and placed her in the back seat of his patrol vehicle to allow her to keep warm. Defendant was thereafter arrested. He was released and rearrested in July 2014.

DISCUSSION
Alleged Juror Misconduct
Defendant contends the court abused its discretion by denying his motion for a new trial based on jury misconduct. Although he admits the jurors were never asked during voir dire whether any juror was related to another juror, he asserts two jurors committed misconduct by failing to reveal they were mother and son. We disagree.

Background
At the outset of jury selection, the court informed the panel the parties were seeking fair and impartial jurors who could listen to the evidence and follow the law. It informed the prospective jurors of the charges, gave an overview of the facts, and told them they would be hearing “nasty, raunchy” language and evidence about sexual proclivities, such as bondage. Thereafter, the court and the attorneys questioned the prospective jurors at length. Before swearing in the jury, the court asked, “Is there anything that you haven’t told us that you think is important that we ought to know about as far as any reason why you should not serve as a juror in this case?” No one responded. The court swore in the jurors and admonished them not to discuss the case with anyone, including family members. The court’s preliminary instructions to the jury repeated this instruction and further instructed them not to talk about the case with other jurors until they began their deliberations in the jury room, and to immediately tell the bailiff if anyone attempted to influence them.
On the second day of deliberations, a female juror was late, and when the bailiff asked if anyone knew where she was, a male juror answered and described where she was. When asked how he knew, the male juror explained the tardy juror was his mother. The bailiff told the court that day but the court did not inform the prosecutor and defense counsel until after the jury was discharged.
Defense counsel filed a motion for a new trial, arguing that the jurors’ failure to disclose their mother-son relationship constituted juror misconduct. In the motion, defense counsel asserted, “There is no doubt that [he] would have objected to both jurors sitting on the same panel for the simple reason that basic psychology and our collective experience tells us that most people are vulnerable to the influences of our immediate family, especially the influence of a parent on a child, even a grown child.” The People opposed the motion, arguing “[t]here is no proof here that one juror influenced the other simply because of their familial relationship.”
At the hearing on the new trial motion, the court concluded no misconduct occurred and denied the motion. In the court’s view, if defense counsel believed it was an important issue, he could have asked during voir dire if any of the jurors were related. The court indicated it was not something it would ask because jurors are admonished not to speak to each other about the case. It presumed the jurors would follow the law and found it speculative to suggest otherwise merely because they were related. The court concluded, “Both jurors during the voir dire process gave responses to questions that I asked and that the two of you asked. Both of you found the jurors to be fine, acceptable, appropriate. They were handpicked. There was no reason to believe that they would have been unfair or subject to family manipulation. There was absolutely nothing to suggest that. Again, we are still on the speculation trail.”

No juror misconduct occured
Defendant contends the two jurors, later determined to be juror Nos. 7 and 11, should have disclosed their familial relationship when the court asked, “Is there anything that you haven’t told us that you think is important that we ought to know about as far as any reason why you should not serve as a juror in this case?” According to defendant, the two jurors committed misconduct by not responding because in doing so, they “concealed and failed to disclose that they were related as mother and son.” We disagree.
“‘“Because a defendant charged with a crime has a right to the unanimous verdict of 12 impartial jurors [citation], it is settled that a conviction cannot stand if even a single juror has been improperly influenced.”’” (People v. Nesler (1997) 16 Cal.4th 561, 584.) “[T]he pretrial voir dire process is important because it enables the trial court and the parties to determine whether a prospective juror is unbiased and both can and will follow the law.” (People v. Wilson (2008) 44 Cal.4th 758, 822.)
“Intentional concealment of relevant facts or the giving of false answers by a juror during the voir dire examination constitutes misconduct [citations] . . . .” (People v. Blackwell (1987) 191 Cal.App.3d 925, 929 (Blackwell).) “If the voir dire questioning is sufficiently specific to elicit the information which is not disclosed, or as to which a false answer is later shown to have been given, the defendant has established a prima facie case of concealment or deception.” (Ibid.) Intentional concealment of relevant facts constitutes misconduct and raises a presumption of prejudice, rebuttable either by an affirmative showing that prejudice does not exist or by the court’s examination of the entire record to determine whether there is a reasonable probability of actual harm to the defendant from the misconduct. (People v. Carter (2005) 36 Cal.4th 1114, 1208.)
On the other hand, “‘mere inadvertent or unintentional failures to disclose are not accorded the same effect’” as intentional concealment. (People v. Wilson, supra, 44 Cal.4th at p. 823.) “‘“[T]he proper test to be applied to unintentional ‘concealment’ is whether the juror is sufficiently biased to constitute good cause for the court to find . . . that he is unable to perform his duty.”’” (Ibid.) “‘Whether a failure to disclose is intentional or unintentional and whether a juror is biased in this regard are matters within the discretion of the trial court. Except where bias is clearly apparent from the record, the trial judge is in the best position to assess the state of mind of a juror or potential juror on voir dire examination.’” (People v. San Nicolas (2004) 34 Cal.4th 614, 644.)
In Blackwell, the defendant shot and killed her husband on a day when both had been drinking. She claimed to have done so to prevent him from beating or killing her, as he had subjected her to ongoing physical abuse. She suffered from “‘battered wife syndrome,” and shortly before the shooting he had beaten her, held a gun to her head, and threatened to kill her. (Blackwell, supra, 191 Cal.App.3d at pp. 927-928.) During jury selection, juror R. failed to reveal that she had been the victim of an abusive former husband who became violent when drinking and that based on her own experience, she believed the defendant should have been able to deal with the situation without resorting to violence. (Id. at p. 928.) The prospective jurors were questioned collectively, individually, and in private, about their experience with alcoholism and/or domestic abuse. Juror R answered ‘no” when asked whether (1) anyone in her family had problems with alcohol, (2) had she experienced domestic or spousal abuse in her family, and (3) did she have a preconceived position concerning battering or abuse. Juror R also said her husband drank occasionally. (Ibid.) The Blackwell court reversed the trial court’s denial of a motion for new trial based on juror misconduct, stating: “The line of questioning by counsel and the court was sufficiently clear to alert her to provide information about her own prior experiences” (id. at pp. 929-930) and she did not say she “misunderstood or was confused by the questions” or failed to inform the court about her former husband “because of oversight or forgetfulness” (id. at p. 930). “[T]he subject voir dire questions in the instant case were sufficiently specific and free from ambiguity so that the only inference or finding which can be supported is that Juror R. was aware of the information sought and deliberately concealed it by giving false answers.” (Id. at p. 930.)
By contrast, in People v. Dyer (1988) 45 Cal.3d 26, a juror was asked whether any member of her family had been a victim of crime. (Id. at p. 59.) Although her brother had been shot and killed five years earlier, she answered “no” because she believed the shooting was an accident. (Id. at p. 58.) The trial court found that the juror was telling the truth and denied the defendant’s motion for a mistrial. (Id. at pp. 58-59.) Our Supreme Court found no abuse of discretion, explaining: “The questions defendant prepared for voir dire were ambiguous; if the question at issue had asked whether any member of the family had been shot or killed by another person, [the juror’s] answer probably would have been different. There is no evidence [the juror] was lying when she answered ‘no’ to the question and its reference to ‘crime victims.’” (Id. at p. 59.)
Here, the jurors were asked, “Is there anything that you haven’t told us that you think is important that we ought to know about as far as any reason why you should not serve as a juror in this case?” This question was just as ambiguous, if not more so, than the one in People v. Dyer, supra, 45 Cal.3d 26 and could have been referring to any number of things, such as time constraints, childcare issues, or a concern about coming into contact with defendant, as one juror later acknowledged. Had the jurors been asked if any of them were related, juror Nos. 7 and 11 likely would have responded affirmatively. As phrased, however, the subject question was not “sufficiently specific to elicit the information which was not disclosed” (Blackwell, supra, 191 Cal.App.3d at p. 929), i.e., that the two jurors were related as mother and son. Juror Nos. 7 and 11 did not “conceal” that information, either intentionally or unintentionally.
Defendant refers to California Judicial Council Form MC-002, question 1.27, which asks, “Do you know anyone on this jury panel?” He claims the existence of this question shows he “is not alone in his belief that jurors related by consanguinity or family ties may be biased or have an inherent tendency to not decide the case independently.” We are not persuaded. If defense counsel was so concerned about this issue, he could have specifically asked this question. The fact he did not indicates this was not a concern. (See People v. McNabb (1935) 3 Cal.2d 441, 451 (McNabb) [that two jurors were the wife and sister-in-law of a grand jury member held not a ground for mistrial where they were not asked if they had any relationship to a grand jury member; “if counsel for the defendants desired for any reason to know if any relationship existed between said jurors and any member of the grand jury, he should have interrogated them on that subject”].)
Defendant maintains “[r]evealing a personal relationship as close as mother and son in response to [the subject] question is common sense. Yet these two jurors concealed that information from the court and counsel.” As noted above, the subject question was too ambiguous for us to conclude juror Nos. 7 and 11 concealed their familial relationship. Nothing in the question alluded to any need for the jurors to reveal they were mother and son. Our own review of the record failed to disclose anything that would have alerted the jurors that their relationship was something important that needed to be divulged. As the trial court found, there was no reason to believe juror Nos. 7 and 11 would be biased merely because they were related. (Cf. McNabb, supra, 3 Cal.2d at p. 452 [“Mere relationship to a member of the grand jury is not a disqualification nor a cause of challenge”].)
At most, juror Nos. 7 and 11 committed an honest mistake when they did not disclose their relationship in response to the subject question. “[A]n honest mistake on voir dire cannot disturb a judgment in the absence of proof that the juror’s wrong or incomplete answer hid the juror’s actual bias. Moreover, the juror’s good faith when answering voir dire questions is the most significant indicator that there was no bias.” (In re Hamilton (1999) 20 Cal.4th 273, 300.) The record discloses no such bias with respect to juror Nos. 7 and 11. As such, the court did not abuse its discretion in denying defendant’s motion for new trial.

Defendant’s Six-year Sentence Did Not Constitute Cruel and Unusual Punishment
Defendant contends his six-year prison sentence constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. “Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment.” (People v. Martinez (1999) 76 Cal.App.4th 489, 496.) We conclude defendant did not bear his burden of establishing the punishment prescribed for his offense is unconstitutional under either the Eighth Amendment or the state constitution. (People v. King (1993) 16 Cal.App.4th 567, 572.)
Defendant forfeited his Eighth Amendment challenge to his sentence by failing to (1) raise it in the trial court (People v. Burgener (2003) 29 Cal.4th 833, 886), (2) cite any legal authority on cruel and unusual punishment other than the Eighth Amendment itself or (3) make any reasoned argument applying principles of Eighth Amendment jurisprudence. (People v. Stanley (1995) 10 Cal.4th 764, 793.) We need not address his Eighth Amendment claim further.
As for defendant’s challenge under the California Constitution, punishment is cruel or unusual if “it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (People v. Dillon (1983) 34 Cal.3d 441, 478 (Dillon); see also In re Lynch (1972) 8 Cal.3d 410, 424.) In determining whether a particular punishment is cruel and/or unusual, courts examine the nature of the particular offense and offender, the penalty imposed in the same jurisdiction for other offenses, and the punishment imposed in other jurisdictions for the same offense. (Lynch, at pp. 425-427.) Defendant focuses solely on the first prong.
Our inquiry into the nature of the offense encompasses “the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant’s involvement, and the consequences of his acts.” (Dillon, supra, 34 Cal.3d at p. 479.) We look at the offense both in the abstract and as it was actually committed. (Ibid.) Here, defendant acknowledges forcible sodomy “is of course a very serious offense that usually has many damaging consequences for the victim of the crime.” But he argues his “offense occurred during the course of a long-term familial relationship” and he believed the victim initially consented to his sexual advances. According to defendant, he had told the victim he wanted to engage in bondage sex, yet she entered the house despite that warning, which “was an implied statement on her part.” Defendant, however, admits the victim later said “she didn’t want to have sex and clearly [he] should have honored her right to refuse.” We thus reject defendant’s contrary statement in his reply brief that the victim “did not express her opposition to [him] going forward until the point he indicated an intention to have anal sex.” In any event, defendant concedes “[h]e crossed the line into illegality” at that point.
Further, defendant forcibly sodomized the victim after deceiving her into returning home by texting her that he was going to bed, then forcing her to undress, restraining her arms and legs against her will, and placing her in a vulnerable position in which she had little chance of resisting. And, while the victim and defendant did have a long-term relationship, we agree with the People’s statement in their sentencing memorandum that the crime “may be viewed as more aggravating than a stranger rape scenario” since, as the father of her children, he was supposed to love and protect the victim, but instead “sexually assaulted her in her own living room and lied about it to the police.”
Consideration of the nature of the offense and/or the offender focuses on “the defendant’s individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” (Dillon, supra, 34 Cal.3d at p. 479.) Defendant contends “the seriousness of the offense does not exclude the possibility of disproportionate punishment,” citing Dillon. But the factors in Dillon do not exist here. Dillon involved a 17-year-old high school student (id. at p. 51) who functioned “‘like a much younger child,’” and “‘pulled the trigger so many times because [he] was so scared . . . .’” (Id. at p. 483.) In the present case, defendant was 34 year old at the time of the offenses. As the Attorney General states, “[T]here is no evidence of immaturity or other considerations which would [make] him less culpable on account of his age.” Nor is there any evidence defendant acted without control over his impulses.
Defendant maintains he lacked “any significant criminal record” and has no prior convictions. While that is true, he did have a prior arrest for domestic violence against the victim. There was also evidence of prior verbal and physical abuse by defendant toward the victim, as testified to by the victim and repeated in her impact statement. In any event, “[t]he lack of a criminal record is not determinative in a cruel or unusual punishment analysis.” (People v. Felix (2003) 108 Cal.App.4th 994, 1001.)
Defendant also points out he apologized to the victim at the sentencing hearing and they resumed living together for a period of four or five months. These circumstances notwithstanding, the fact remains he committed, in his own words, “a very serious offense.” We conclude defendant’s six-year sentence does not violate the constitutional prohibitions against cruel or unusual punishment.

The Court Did Not Abuse its Discretion in Sentencing Defendant
Defendant argues the court abused its discretion in applying aggravating factors to sentence him to the midterm of six years on count 1 as the principal term. We are not persuaded.
The trial court has discretion to impose either the lower, middle, or upper term, but must set forth the reasons for its decision on the record. (§ 1170, subd. (b).) “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 . . . .” (§ 1170, subd. (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.) Although the court must state reasons for imposing the selected term, those reasons need not include facts deemed by the court to be aggravating or mitigating circumstances. (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
The “‘“burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) A “trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.)
Here, the court mentioned a number of factors in aggravation: the crime had a high degree of cruelty, viciousness and callousness (Cal. Rules of Court, rule 4.421(a)(1)); the manner in which the crime was carried out indicated planning (rule 4.421(a)(8)); defendant had a history of manipulating the victim, the victim was particularly vulnerable because she had “a reasonable expectation of safety at some point” (rule 4.421(a)(3)); and defendant engaged in conduct that indicated he was extremely violent and dangerous. As factors in mitigation, the court considered defendant’s limited criminal history and his in-court apology to the victim. As to each of the factors in aggravation, defendant contends the court “mischaracterize[d] or misrepresent[ed his] actions and the depth of his criminal responsibility.”
One of defendant’s contentions is that the court improperly found the manner in which the crime was committed indicated planning. Defendant argues his actions in laying out the restraints in the living room merely showed he planned “to engage in bondage sex, [not] that he planned to commit forcible sodomy.” According to defendant, whether his “preparations for bondage sex constituted planning to commit a crime, is a matter of intent” and while he sent text messages to the victim that he was going to get sex from her any way he wanted, those messages did not reflect an intent to commit sodomy because that is how the parties communicated with each other. That is merely one way of looking at the evidence. Another way to view it is to believe defendant meant what he said. It does not show no reasonable person could agree with the court’s ruling.
Defendant also argues the court erred in finding he had a history of manipulating the victim because it is not a factor listed in rule 4.421 and it did not make the crime worse. Even if so, the court could have considered it as part of what made her particularly vulnerable.
“‘Particular vulnerability’” is determined in light of the “total milieu in which the commission of the crime occurred . . . .” (People v. Price (1984) 151 Cal.App.3d 803, 814.) “Both the personal characteristics of the victim and the setting of the crime may be considered.” (Ibid.) This includes evidence of manipulation. (See People v. Sperling (2017) 12 Cal.App.5th 1094, 1103 [“trial court referred to appellant’s ‘grooming’ of [the victim], ‘i.e., patiently cultivating and manipulating [her] to achieve his purposes’”]; People v. Clark (1990) 50 Cal.3d 583, 638 [victim was particularly vulnerable where the defendant told her his mother was ill and “exploited her concern for the supposed illness of his mother, manipulated her trust, and thereby gained entrance to a location where she was alone, inaccessible, unprotected, and unable to protect herself from the assault”].) Here, the court could have reasonably determined the victim was particularly vulnerable because defendant had exploited her concern for her children as well as her financial dependence on him by withholding money for basic necessities such as food and threatening not to renew the lease in order to manipulate her into a position in which she was unable to protect herself from forcible sodomy.
Defendant maintains the victim “was less vulnerable than other domestic partners in that [he] warned her of his interest in having bondage,” yet “[s]he chose to return . . . .” He states, “This was a one time occurrence. She chose to take a risk despite the warnings.” But engaging in risky behavior does not preclude a finding that a victim is particularly vulnerable. (See People v. Steele (2000) 83 Cal.App.4th 212, 226 [victim found particularly vulnerable although she “was a prostitute and possibly used to dealing with potentially dangerous situations”].) Moreover, defendant overlooks the victim’s concern for her children and the fact he manipulated the victim into believing she would be safe by texting her he was going to bed. (See People v. Clark, supra, 50 Cal.3d at p. 638.) The court was within its discretion to conclude the victim was particularly vulnerable. Thus, even if the court erroneously relied on his manipulation of the victim as a separate aggravating factor in and of itself, the error was harmless. (People v. Steele, supra, 83 Cal.App.4th at p. 226 [“[e]ven if some of the factors were impermissible, it is difficult to assail the finding that the victim was vulnerable”].) The same is true with respect to the remaining factors challenged by defendant.
Defendant has failed to carry his burden of showing the court’s decision was irrational or arbitrary. The court properly exercised its discretion in identifying, considering, and weighing mitigating and aggravating circumstances.

DISPOSITION

The judgment is affirmed.



IKOLA, J.

WE CONCUR:



MOORE, ACTING P. J.



ARONSON, J.