Does the trial court improperly rely on the age of the victim as a factor in determining the severity of the assault?

Defendant also argues that the trial court improperly relied on D.C.'s age as a factor in aggravation. The trial court noted the age difference between defendant and D.C. at the beginning of the pronouncement of judgment, stating, "The defendant in this case was 19 at the time of the incident, the victim was 13 years old." Defendant contends the trial court erred in considering the victim's age because it is an element of the offense. (People v. Quinones (1988) 202 Cal.App.3d 1154, 1159 (Quinones), overruled on other grounds in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12 [trial court erred in relying on victim's age as factor in aggravation].) However, the trial court went on to note that D.C. was "especially vulnerable," adding that "defendant misused a position of trust as a senior scout member." Taken together, we conclude that the trial court's comments reflect a concern for D.C.'s vulnerability, rather than his age. (People v.

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