Is vulnerability a factor in determining the severity of a minor's sexual assault conviction?

^10. In the original sentencing hearing, the trial judge expressed concern with only two aggravating factors, namely, the age difference between defendant and the victim, and the fact that defendant was the victim's cousin, which made her "a little bit more vulnerable." However, because a section 288 offense by its nature presumes a vulnerable victim, i.e., under the age of 14 years, and rule 4.414(a)(3) merely lists "vulnerability of the victim" as a factor, it must contemplate something more than the victim's age. (People v. Flores (1981) 115 Cal.App.3d 924, 927 [minority could not be used as a basis for finding that a victim of a section 288a, subdivision (b)(2), offense was "particularly vulnerable," where minority status was, itself, an element of the charged offense].) While there undoubtedly may be situations in which a 12-year-old (almost 13-year-old) minor could appropriately be determined vulnerable, no such considerations were present here. Doe was not defenseless, unguarded, unprotected, forced, or threatened with force. (People v. Smith (1979) 94 Cal.App.3d 433, 436 [describing vulnerability in the context of rule 4.421(a)(3)].)