What is an aggravating factor in determining a sentence for a convicted rapist?

In making its determination as to the appropriate term, the trial court is permitted to consider the probation officer's report, statements in aggravation or mitigation submitted by the defendant, the prosecutor, and the victim, and any evidence presented at the sentencing hearing. (People v. Sandoval (2007) 41 Cal.4th 825, 848 (Sandoval); 1170, subd. (b).)

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The trial court is "free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions." (Sandoval, supra, 41 Cal.4th at p. 848.) Among the prohibitions is rule 4.420(d), which states that "a fact that is an element of the crime on which punishment is being imposed may not be used to impose a particular term." (Sandoval at p. 848.) But "where the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence." (People v. Castorena (1996) 51 Cal.App.4th 558, 562.) An aggravating factor is one that "makes the offense distinctively worse than the ordinary" and makes the defendant "deserving of punishment more severe than that merited for other offenders in the same category." (People v. Black (2007) 41 Cal.4th 799, 817.)