People v. Bailey CA3

Filed 1/22/24 P. v. Bailey CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----

THE PEOPLE, C097392

Plaintiff and Respondent, (Super. Ct. No. 15F03495)

v.

KEVIN BAILEY,

Defendant and Appellant.

Defendant Kevin Bailey appeals from his resentencing following our remand on
his prior appeal from the judgment. He contends the trial court abused its discretion in
resentencing him by improperly considering one aggravating circumstance, finding the
existence of other aggravating circumstances that were not supported by the record, and
failing to allow certain evidence in mitigation. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
“The six-year-old victim reported that defendant . . . , her mother’s boyfriend,
touched her inappropriately.” (People v. Bailey (Apr. 22, 2022, C087972) [nonpub. opn.]

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(Bailey).)1 After the jury in defendant’s first trial acquitted him on one count and hung
on two more, a “second information . . . charged defendant in count one with violation of
[Penal Code] section 288, subdivision (b)(1),[2] lewd and lascivious act, ‘fingers to vagina
in living room,’ on a child under the age of 14 by use of force, violence, duress, menace,
and threat of great bodily harm. Count two charged defendant with violation of section
288, subdivision (b)(1), lewd and lascivious act, ‘grabbed her hand and made her rub his
penis,’ on a child under the age of 14 by use of force, violence, duress, menace, and
threat of great bodily harm.” (Ibid.) A jury found defendant guilty on both counts, and
the trial court sentenced defendant to an aggregate term of 20 years in prison, consisting
of the upper term of 10 years on each count. (Ibid.) On defendant’s prior appeal, we
vacated his sentence and remanded for resentencing in compliance with section 1170 as
amended by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731). (Bailey,
supra, C087972.)
At resentencing, the trial court noted defendant was 37 years old at the time of
sentencing, and the victim was six years old at the time of the offense. The court further
noted defendant had no prior criminal history, he had support from his family, and he was
engaged in educational opportunities in prison.
The court found the existence of several aggravating circumstances. According to
the court, the crimes “involved great violence, great bodily harm, threat of great bodily
harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness.” (Cal.
Rules of Court, rule 4.421(a)(1).)3 The court observed there were times the victim “had

1 We granted defendant’s motion to incorporate by reference his prior appeal in case
No. C087972.
2 Undesignated statutory references are to the Penal Code.
3 Further citation to rules are to the California Rules of Court.

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tried to get away and she was pulled back. She tried to yell. When she refused, he
covered her mouth when she tried to yell for help. [¶] On the occasion when he forcibly
moved her hand up and down his penis in her room until he ejaculated and as a young girl
she described as water coming out, he then made [her] clean up the ejaculate off her bed
and stuffed animals. So I find those facts qualify under disclosing a high degree of
cruelty, viciousness, or callousness.”
The court found the victim was particularly vulnerable (rule 4.421(a)(3)), stating:
“These offenses occurred in the safety of her home. She was six, which is in the lower
range of that age. I think a six-year-old maturity-wise mentally, emotionally is more
vulnerable than a 13-year-old. That also fits under this offense.” The court also relied on
the disparity in physical size between the victim and defendant.
The court found the manner in which the crimes were carried out “indicates
planning, sophistication, or professionalism.” (Rule 4.421(a)(8).) Although the court
characterized defense counsel’s argument that the offenses “appeared clumsy or
opportunistic” as “well taken,” it found “there [was] also evidence that was shown where
it did involve planning where he took opportunity to be alone with her or when they were
alone in the home. So they were not spur of the moment.”
The court found that defendant took advantage of a position of trust or confidence
to commit the offense. (Rule 4.421(a)(11).) “He was the victim’s mother’s boyfriend.
And he did fun activities with her like taking her to ballet and so forth, gaining her trust.”
Additionally, the court found the nature of the touching in this case—fingers to the
victim’s vagina and grabbing her hand to rub his penis—were “more serious than mere
touching or fondling of a body part that is often the basis of these charges.”
Lastly, the court stated: “Defendant has, to this day, not taken any responsibility
or shown remorse even after the jury verdict beyond a reasonable doubt based on a very
compelling interview the victim gave supported by DNA evidence. [¶] And the reason
that is so important is that it shows the Court a lack of rehabilitation, lack of progress,

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lack of recognition of what -- he is not accepting responsibility. So it tells this Court that
he still poses a danger to society.”
The court sentenced defendant to the middle term of eight years on each count for
an aggregate prison term of 16 years.
DISCUSSION
Defendant asserts the trial court abused its discretion in relying on inappropriate
and unproven aggravating circumstances, and by failing to admit evidence in mitigation.
The People contend defendant forfeited his contentions. We conclude defendant’s claims
are not forfeited. We further conclude that, while the trial court properly relied on four
aggravating circumstances and did not err in refusing to admit mitigating evidence at
resentencing, under the circumstances of this case, it erred in relying on defendant’s lack
of remorse as an aggravating circumstance. However, we conclude defendant was not
prejudiced as a result.
I
Forfeiture
The People’s forfeiture argument arises from their misunderstanding or
mischaracterization of defendant’s contentions on appeal. Defendant does not argue the
trial court had to satisfy standards applicable for the lawful imposition of upper term
sentences. Therefore, the failure to raise that argument in the trial court is irrelevant. For
the most part, defendant’s arguments were not forfeited because defense counsel at
resentencing brought the alleged defects in the court’s potential reliance on aggravating
circumstances to the court’s attention. (See People v. Scott (1994) 9 Cal.4th 331, 353
[defects in court’s statement of reasons are easily prevented and corrected if called to
court’s attention].) Under these circumstances, and given defendant’s ineffective
assistance of counsel claim, we address the merits of defendant’s contentions.

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 II
Sentencing Guidelines and Standard of Review
“In selecting between the middle and lower terms of imprisonment, the sentencing
judge may consider circumstances in aggravation or mitigation, and any other factor
reasonably related to the sentencing decision. The court may consider factors in
aggravation and mitigation, whether or not the factors have been stipulated to by the
defendant or found true beyond a reasonable doubt at trial by a jury or the judge in a
court trial. The relevant circumstances may be obtained from the case record, the
probation officer’s report, other reports and statements properly received, statements in
aggravation or mitigation, and any evidence introduced at the sentencing hearing.” (Rule
4.420(d).) Imposition of the low or middle term is within the sentencing court’s “sound
discretion.” (§ 1170, subd. (b)(1).) “Relevant factors enumerated in these rules must be
considered by the sentencing judge, and will be deemed to have been considered unless
the record affirmatively reflects otherwise.” (Rule 4.409.)
“Sentencing decisions are reviewed for abuse of discretion. [Citations.] Under
this standard, a trial court’s exercise of discretion will not be disturbed unless the trial
court exercised it in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.” (People v. Gibson (2016) 2 Cal.App.5th 315, 325.)
III
Aggravating Circumstances
A. Lack of Remorse
Relying primarily on People v. Key (1984) 153 Cal.App.3d 888, defendant asserts
his lack of remorse is not a reason to aggravate his sentence because he denies
committing the crimes. In Key, the court stated: “Where a defendant acknowledges
guilt, but shows no remorse, he may be expected to repeat the criminal conduct under
similar circumstances. [Citation.] In such a case, lack of remorse may be applied to
aggravate as an additional relevant factor . . . . However, here the evidence of

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nonconsensual intercourse consists primarily of the sharply conflicting testimony of [the
defendant] and the prosecuting witness. The evidence of guilt is not overwhelming and
[the defendant] steadfastly denies the rapes. Under these circumstances, [the
defendant’s] lack of sorrow does not indicate he is likely to engage in future sexual
attacks.” (Id. at pp. 900-901.) Other courts have similarly stated that “[l]ack of remorse
can be used to aggravate a sentence ‘ “unless the defendant has denied guilt and the
evidence of guilt is conflicting.” ’ ” (People v. Weber (2013) 217 Cal.App.4th 1041,
1064, fn. 7.)
We agree with defendant that the evidence at trial was, to an extent, conflicting.
Among other things, the victim’s testimony at the first trial was largely that she didn’t
remember anything bad happening to her. In that first trial, the prosecution presented to
the jury the victim’s statements in a recording of a SAFE interview the victim had, to
provide evidence that the defendant touched the victim inappropriately. (Bailey, supra,
C087972.) The victim subsequently recanted at defendant’s second trial, although a
psychologist testified children may recant valid claims of abuse. At the second trial, the
victim testified she lied to everyone when she told them defendant had touched her
privates. Defendant’s former girlfriend, the victim’s mother, testified for the defense.
She testified she and defendant occasionally had sex in the victim’s room when the
victim was not there, suggesting an explanation why defendant’s semen could be found
on objects in the victim’s room. She and other defense witnesses testified defendant and
the victim appeared to have a loving relationship, they appeared to enjoy spending time
together, the victim never appeared to be afraid of defendant, and nothing they observed
gave them cause for concern.
Based on defendant’s consistent denial of guilt and the state of the trial evidence,
we conclude the trial court abused its discretion in considering defendant’s lack of
remorse as an aggravating factor at resentencing. We shall discuss prejudice below.

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 B. High Degree of Cruelty, Viciousness, or Callousness
A court may consider as an aggravating factor that the “crime involved great
violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high
degree of cruelty, viciousness, or callousness.” (Rule 4.421(a)(1).) Defendant’s crimes
require that the prohibited acts be committed by “use of force, violence, duress, menace,
or fear of immediate and unlawful bodily injury on the victim or another person.” (§ 288,
subd. (b)(1).) Defendant relies on the rule that courts generally cannot “use a fact
constituting an element of the offense either to aggravate or to enhance a sentence.”
(People v. Scott, supra, 9 Cal.4th at p. 350; rule 4.420(h) [a “fact that is an element of the
crime . . . may not be used to impose a particular term”].)
The evidence established, as to one instance, that defendant called to the victim
and, when she did not come, he pulled her off the bed and dragged her on her buttocks to
the living room. He reached under her panties with his hand and started touching her
“[p]ee-pee” “super hard . . . [a]nd it was hurting” her. Although forensic examination
results were “normal,” according to the victim, when she used the bathroom, she saw
blood. The examining nurse testified the victim had reported bleeding, though not on the
day she examined her. A female relative, who was the first to learn of the abuse, testified
the victim reported that it hurt “down there,” and said something about a rash or blood on
toilet paper after she went to the bathroom. The victim also told her teacher that her
“second dad” touched her privates and she had to go to the hospital because her privates
were bleeding. As for the other instance, in her interview, the victim said that when
defendant made her touch his penis, liquid came out and went onto her “[c]ouch bed
thingy,” and she had to clean it up.
While a circumstance that is an element of the substantive offense cannot be used
as a factor in aggravation (rule 4.420(h)), “[a] sentencing factor is only an element of the
offense . . . if the crime as defined by statute cannot be accomplished without
performance of the acts which constitute such factor.” (People v. Burbine (2003)

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106 Cal.App.4th 1250, 1262.) Violation of section 288, subdivision (b)(1) could be
accomplished without defendant dragging the victim from one room to another on her
buttocks, without touching the victim’s genitals “super hard,” and without such force as
to cause bleeding. It could also be accomplished without forcing the six-year-old child to
clean up ejaculate. We are persuaded that this aggravating circumstance was not an
element and therefore was not improperly considered in aggravation.
C. Particularly Vulnerable Victim
The court found the “victim was particularly vulnerable.” (Rule 4.421(a)(3).)
Defendant contends the victim’s age was already contemplated by the crime, and
therefore is not available as an aggravating factor. He further asserts the mere fact that he
and the victim lived in the same house did not render her vulnerable to an unusual or
extreme degree. Defendant also asserts the size disparity does not make this an unusual
violation of section 288, subdivision (b)(1).
As an aggravating factor, victim vulnerability means “defenseless, unguarded,
unprotected, accessible, assailable, one who is susceptible to the defendant’s criminal
act.” (People v. Smith (1979) 94 Cal.App.3d 433, 436.) “[A]ggravating a sentence due
to ‘particular vulnerability,’ where vulnerability is based solely on age, is improper when
age is an element of the offense. [Citations.] However, ‘particular vulnerability’ is
determined in light of the ‘total milieu in which the commission of the crime
occurred . . . .’ ” (People v. Dancer (1996) 45 Cal.App.4th 1677, 1693-1694,
disapproved on another ground in People v. Hammon (1997) 15 Cal.4th 1117, 1123.)
“[A] victim’s extremely young age together with other circumstances like the time and
location of the offense can establish ‘particular vulnerability’ as an aggravating factor.”
(Dancer, at p. 1694.)
Section 288, subdivision (b)(1) contemplates crimes committed against victims
under the age of 14. The victim here was six years old at the relevant time, much
younger than the oldest victims of section 288, subdivision (b)(1) violations. (See

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People v. O’Connor (1992) 8 Cal.App.4th 941, 952, fn. 7 [particular vulnerability
circumstance present when victim was 11, not merely under 14 as required by § 288, and
impoverished].) Additionally, defendant preyed on the victim when her mother was not
in the immediate area, such as when she was in the shower. Defendant would touch the
victim when her mother was not around. According to a relative, the victim reported she
had tried to tell her mother, but her mother would not listen, suggesting vulnerability in
the sense that she was isolated and without help from those who should provide it.
This constitutes substantial evidence to support the trial court’s finding that the
victim was particularly vulnerable.
D. Planning, Sophistication, or Professionalism
With regard to the trial court’s finding that the crime demonstrated planning,
sophistication, or professionalism (rule 4.421(a)(8)), defendant asserts the court conceded
the evidence indicated he acted in a clumsy and opportunistic manner, and further asserts
the fact that he and the victim lived in the same house demonstrated that the crimes
required no planning.
Again, defendant made a point of touching the victim when her mother was not
around. In one instance, defendant waited until the victim’s mother was in the shower
before demanding the victim come to him, and when she did not, he dragged her to the
living room and touched her genitals. When the victim attempted to call out to her
mother, defendant covered her mouth to avoid detection. On another occasion, defendant
approached the victim while she was alone in her room. While defendant would
characterize his crimes as “opportunistic,” substantial evidence supports the trial court’s
conclusion defendant’s crimes involved planning.
E. Took Advantage of a Position of Trust
As for the aggravating circumstance that defendant took advantage of a position of
trust (rule 4.421(a)(11)), defendant asserts it is common for a perpetrator to be related to,
or in a relationship with someone related to, the victim; there is no evidence he took the

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victim to ballet to gain her trust so as to take advantage of it later; and there was no
evidence the molestation occurred in connection with a trust-building activity.
Defendant had a close relationship with the victim. She referred to him as “Daddy
Kevin” and her “second dad.” Defendant had been dating the victim’s mother for
approximately two years and living with her for approximately 22 months at the time the
abuse occurred, assuming it occurred on or about January 19, 2015. The victim’s mother
trusted defendant with the victim, allowing him to babysit the victim while she worked.
Defendant took advantage of this position of trust, preying on the victim when her mother
was not around. We also note the interplay between this factor and a victim’s particular
vulnerability. (See, e.g., People v. DeHoyos (2013) 57 Cal.4th 79, 154 [“a crime victim
can be deemed particularly vulnerable as an aggravating factor ‘for reasons not based
solely on age, including the victim’s relationship with the defendant and his abuse of a
position of trust’ ”].)
Defendant claims section 288, subdivision (b) “already contemplates a situation
where the defendant took advantage of a position of trust.” He relies on subdivision
(b)(2) of section 288, which addresses the same type of conduct but specifically in the
context where it is perpetrated by a caretaker against a dependent person, and which
includes the same sentencing triad as subdivision (b)(1). This contention is without
merit. Defendant was not convicted under subdivision (b)(2). Although the Legislature
chose to specify the same triad in each of these two subdivisions, his conviction under
subdivision (b)(1) did not already account for taking advantage of a position of trust.
IV
Mitigating Circumstances
Defendant asserts the trial court improperly prevented him from presenting
evidence relevant to mitigating circumstances at his first sentencing hearing, specifically
“evidence in the form of statements regarding [defendant’s] factual innocence and the
victim’s father’s motivation to coach the victim to fabricate the crime.” While defendant

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acknowledges this claimed error did not occur at resentencing, he nevertheless asserts “its
effect carried over to [his] resentencing . . . , and [he] likely knew that any further attempt
to assert his innocence would be not only punished but prohibited based on the court’s
prior rulings.”
We cannot conclude the trial court committed reversible error at resentencing
based on a ruling it made at the original sentencing. If defendant wished to present
evidence relevant to mitigating circumstances at his resentencing, it was his obligation to
proffer it. And, in fact, he did offer such evidence, just through different people.
The victim’s mother spoke at resentencing about her belief that defendant did not
commit the crimes. She pointed out evidentiary inconsistencies. She implied the
victim’s statements were compelled through the interviewer’s questioning. She stated the
victim “told the truth” at the second trial, when she recanted, and that she never saw
evidence of a rash or tenderness on the victim. She also stated the victim’s father could
achieve citizenship by obtaining full custody of the victim. The victim also spoke at
resentencing and said defendant did not touch her inappropriately.
Defendant had the opportunity to present evidence in mitigation at his
resentencing, and he did so. Defendant has not established any error in connection with
mitigating factors at resentencing.
V
Prejudice
Having concluded the trial court abused its discretion in considering defendant’s
lack of remorse as an aggravating circumstance, we turn to prejudice. Where a trial court
relies on an improper factor in aggravation at sentencing, remand is required if it is
reasonably probable that a result more favorable to the defendant would have been
reached absent the error. (People v. Avalos (1984) 37 Cal.3d 216, 233, citing People v.
Watson (1956) 46 Cal.2d 818, 836.)

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 Here, the court properly considered and found all of the other aggravating
circumstances as recounted above. (Rule 4.421(a)(1), (3), (8), (11)). It considered the
fact that defendant was 37 years old at sentencing and the victim was six years old at the
time of the offense. The court also found the particulars of the crimes were “more
serious than mere touching or fondling of a body part that is often the basis of these
charges.”
Defense counsel raised mitigating circumstances including defendant’s lack of any
criminal history, a psychologist’s evaluation concluding defendant did not exhibit signs
of sexual deviancy or abnormality, and defendant’s score on the Static 99R risk
assessment instrument, indicating he was a low risk to reoffend. Defense counsel argued
there were “no circumstances in aggravation that would justify a sentence greater than the
low term.”
“ ‘The court is presumed to have considered all relevant factors unless the record
affirmatively shows the contrary.’ ” (People v. Sperling (2017) 12 Cal.App.5th 1094,
1102.) The court expressly stated: “Defendant has no prior criminal history. He enjoys
his family support. I have heard today that he’s engaged in education at CDCR.” The
court acknowledged it had the discretion to impose the low term. However, after
considering all relevant factors, the court imposed the middle term. The court further
stated that if it had discretion to grant probation, it would not, and if it had discretion to
run the sentences concurrently, it would not.
Based on the court’s remarks at resentencing, we conclude it is not reasonably
probable defendant would have achieved a more favorable result absent the error in the
trial court’s consideration of defendant’s lack of remorse and insistence on his innocence.

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 DISPOSITION
The judgment is affirmed.

/s/
EARL, P. J.

We concur:

/s/
RENNER, J.

/s/
ASHWORTH, J.*

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

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