Opinion
A150217
06-29-2018
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER J. RENNER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Del Norte County Super. Ct. No. CRF169068)
Pursuant to a plea agreement, defendant Christopher J. Renner pleaded guilty to continuous sexual abuse of a young child over a two-year period and admitted he was ineligible for probation. The prosecution agreed to a maximum sentence of 12 years in state prison, the midterm for the offense. After a lengthy sentencing hearing, the trial court imposed the midterm of 12 years. Renner now appeals the sentence on multiple grounds. We affirm.
During the pendency of this appeal, Renner's appellate counsel filed a petition for habeas corpus relief in this court. We have denied the habeas petition (A152373) by separate order filed this day.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2016, John Doe, then 23 years old, reported to district attorney investigators that Renner molested him when Doe was between the ages of five and seven. Renner's son was Doe's best friend. Doe reported that Renner would put his hand down Doe's pants and fondle him, touching his penis and scrotum. This would happen when Doe was alone with Renner in Renner's house, and he estimated it happened about 30 times.
During a pretext call investigators arranged for Doe to make to Renner, Renner acknowledged that he touched Doe when Doe was five years old. Renner said he had not done this to other children and apologized. When Doe asked why he touched him, Renner responded that "it had 'happened to me too.' " Another pretext call occurred a few days later.
On February 22, 2016, Renner was arrested. He was advised of his Miranda rights and agreed to speak to a sergeant about Doe's allegations. He admitted to fondling Doe's genitals. He estimated he touched the victim no more than 10 times. Renner recalled an incident when he and Doe were in a hot tub; he took Doe's hand and attempted to place it on his penis. He admitted he " 'forced' " Doe to touch him. He described Doe as " 'a poor little vulnerable kid' who was 'in the wrong place, wrong time, too often.' " Renner said his sexual contact with Doe ended when Doe was about seven years old, and after that, he "treated [Doe] 'like crap.' " He reported that he had been clean and sober since 1984 when he completed the Betty Ford Center, but "he was 'sexually acting outside of his relationship (with his wife) at that time with anonymous sex [and] things like that.' " Renner recalled being confronted by Doe's stepfather, who said to him, " 'You know what you did.' " In June 1998, Renner checked himself into a sexual rehabilitation center in Texas, which he attended for about two months. He could not recall whether the confrontation with Doe's stepfather occurred before or after he participated in residential treatment in Texas.
The preceding facts are taken from the presentence investigation report filed October 11, 2016.
By information filed June 2, 2016, Renner was charged with one count of continuous sexual abuse (Pen. Code, § 288.5; count 1), one count of forcible lewd act upon a child (§ 288, subd. (b); count 2), and four counts of lewd acts upon a child (§ 288, subd. (a); counts 3 through 6).
Further undesignated statutory references are to the Penal Code.
On the first day of jury trial, the court ruled that Renner's statements to Doe in the pretext calls and his interview with the sergeant were admissible. The same day, Renner and the prosecution reached a plea agreement. Renner entered a guilty plea to count 1, agreed the offense was committed between June 1997 and June 1999, and admitted the special allegation of substantial sexual conduct (§ 1203.066, subd. (a)(8)). Under the agreement, Renner acknowledged he would be ineligible for probation, he would be subject to a sentence of either six or 12 years in state prison (the low term or midterm, respectively), and the other five counts would be dismissed.
In anticipation of sentencing, Renner submitted many letters of support from friends, relatives, fellow members of Alcoholics Anonymous, and two treating therapists. In Renner's own letter to the court, he wrote that the offense was an isolated case and he did "not continue to explore or expand this deviance." He was "sincerely remorseful for the emotional pain [he] . . . caused John Doe." Renner recognized "difficulties . . . observed in [Doe's] family life" and sought to provide him a safe haven by inviting him into Renner's home. After abusing Doe, he realized he needed serious psychosexual therapy and voluntarily committed himself to a facility in Texas. In therapy, he confronted his "own molestation at the hands of a neighbor as a very young child that went well beyond what [Renner] visited upon John Doe." Renner recounted that he maintained his marriage, raised four children, started a business that now employed 25 people, volunteered with community programs and schools, and had no criminal history for the previous 20 years.
In his interview with law enforcement, Renner stated that Doe's mother was a drug addict, his grandmother "was dealing drugs and having people come over and trade drugs for sex," and "the [grandmother's] boyfriend . . . they said shot himself, . . . killed himself in the house." So Doe "has been through some stuff."
The probation department filed a presentence investigation report, which included the victim's statement. Doe said he "did not want to show up for the trial because he was being 'pressured' by people close to the Renner family," but he " 'had to stand up for what was right.' " He reported Renner and his wife had " 'manipulated' so many people into thinking 'none of this happened,' " and Doe's own family only began to believe him after Renner admitted the allegations in court. Doe felt "conflicted because he has been so hurt by all that has happened, but he still consider[ed] the Renner family his own family." Doe wanted Renner to serve the minimum term because he was hoping that by voicing his opposition to the maximum sentence, Renner's family would see he was not acting out of vengeance, but only wanted to have the truth known.
The probation department also spoke with Renner, who cried and said he felt terrible for the harm and hurt he caused. Renner said he considered Doe like a family member. The probation department found Renner's letter "lack[ed] sincerity" and "would have liked to have gleaned much more from the interview with regard to [Renner's] genuine feelings."
The probation department reported that Doe "clearly suffered significant emotional damage due to the molestations which occurred nearly two decades ago" and which he "felt forced to keep . . . a secret in order to maintain his friendship with [Renner's] son." It also noted that Renner's Static-99R score of 1 placed him in the "low risk" category of reoffense potential. While "hesitant to support the lower term," the probation department recommended a six-year sentence, finding the factors in mitigation slightly outweighed those in aggravation and considering Doe's request for the minimum punishment.
At the sentencing hearing, the prosecution posited there were two aggravating factors—the victim was particularly vulnerable and Renner took advantage of a position of trust. The only mitigating factor was that Renner had no prior record. (Cal. Rules of Court, rules 4.421(a)(3) and (11) and 4.423(b)(1).) Renner suggested he qualified for two other enumerated mitigating factors under the Rules of Court; he argued that he accepted responsibility and claimed he would have been granted probation had he not been ineligible by statute and by the plea agreement. (Cal. Rules of Court, rule 4.423(b)(3) and (4).)
Renner also argued he did not engage in any grooming or sophisticated ploys, he did not take advantage of a position of trust, he had no known criminal record, he would be willing and able to comply with probation, and imprisonment would have a devastating effect on his family and employees, citing criteria affecting the decision to grant or deny probation. (Cal. Rules of Court, rule 4.414(a)(8) and (9) and (b)(1), (3)-(5).) By admitting the special allegation of substantial sexual conduct, Renner was statutorily ineligible for probation. (§ 1203.066, subd. (a)(8).)
After a brief recess, the trial court sentenced Renner to 12 years in state prison, stating: "There are clearly factors in aggravation. There are also factors in mitigation. I have struggled with this. But I come to the conclusion that neither outweigh the other. And the midterm is the appropriate sentence."
DISCUSSION
Renner makes four arguments: (1) the trial court was unaware of a new law that "chang[ed] the purpose of imprisonment from punishment to public safety," (2) the 12-year sentence was not necessary or appropriate for public safety, (3) numerous compelling mitigating factors outweigh the "weak" aggravating factors even under the old law, and (4) the 12-year sentence violates the state and federal constitutional prohibitions against cruel and unusual punishment. A. Change to Section 1170 by Assembly Bill No. 2590
Initially, we reject the Attorney General's response that Renner is estopped from challenging his sentence because he accepted a plea bargain. The Attorney General relies on People v. Hester (2000) 22 Cal.4th 290, 295, but that case involved an agreement for a specified sentence. Here, Renner did not agree to a specified sentence; he agreed to a maximum term of 12 years. As a result, he reasonably expected to have the opportunity to argue that a lower sentence was appropriate. (See People v. French (2008) 43 Cal.4th 36, 40-41, 49 [where plea agreement set maximum sentence, defendant was allowed to appeal imposition of the maximum; appellate claim implicated sentence only and was not a challenge to the plea agreement].) In addition, we reject the Attorney General's claim that the appeal is untimely. (See Order dated March 26, 2018, granting Renner's unopposed motion for constructive filing of the notice of appeal.)
Assembly Bill No. 2590, filed with the Secretary of State September 27, 2016, and effective January 1, 2017, amended section 1170 on determinate sentencing. (Stats. 2016, ch. 696, § 1.) Section 1170, subdivision (a), previously began, "The Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances." (Former § 1170, subd. (a)(1), as amended by Stats. 2015, Ch. 378, § 1 (former § 1170(a)(1)), italics added.) The statute now states, "The Legislature finds and declares that the purpose of sentencing is public safety achieved through punishment, rehabilitation, and restorative justice. When a sentence includes incarceration, this purpose is best served by terms that are proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances." (Italics added.)
Renner argues the new law applied to sentencing in this case, and the trial court incorrectly applied the old law. Even if we assume that the new law applies to Renner's sentencing, we discern no possible prejudicial error because the trial court's considerations in deciding whether to impose the agreed-upon six- or 12-year term would be the same under either version of the law.
Because it is not necessary to resolve this appeal, we do not decide whether Assembly Bill No. 2590 applies to sentencing hearings that occurred before the effective date of January 1, 2017.
The new language in section 1170 did not reduce punishment for any particular offense. The new law did not amend the California Rules of Court, which provide that a sentencing court exercising its discretion may consider circumstances in aggravation and mitigation, as well as any other factor reasonably related to the sentencing decision. (Cal. Rules of Court, rule 4.420(b).) Nor did the new law change the goal of uniformity and proportionate terms when a prison term is part of the sentence. Under either the old or new version of section 1170, the trial court would have been guided that the purpose of imprisonment was "best served by terms" that are "proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances." (§ 1170, subd. (a)(1); former § 1170(a)(1).) We conclude that even assuming the amendment to section 1170 of Assembly Bill No. 2590 "applied," it would not have changed the trial court's task or the factors it was to consider in sentencing Renner in this case. B. Considerations of Public Safety
When a sentence includes a prison term, the statute now provides that the "purpose is best served by terms that are proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances." (§ 1170, subd. (a)(1).) This is functionally indistinguishable from the earlier version of the statute, which provided, "This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances." (Former § 1170(a)(1).)
Renner next contends the imposition of a 12-year term was not necessary or appropriate for public safety. Once again, he relies on the new version of section 1170's statement that "the purpose of sentencing is public safety." (§ 1170, subd. (a)(1).) Essentially, Renner's argument is that the trial court abused its discretion in imposing the midterm because he is not likely to reoffend, but he cites no statute or California Rule of Court that requires the imposition of the low term for an offense on that basis. Accordingly, we reject Renner's argument that the sentence was an abuse of discretion based on considerations of public safety. C. Weighing the Aggravating and Mitigating Factors
In the alternative, Renner claims the trial court abused its discretion in imposing the midterm because numerous compelling mitigating factors outweigh the "weak" aggravating factors.
We review a trial court's sentencing decision for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) " '[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.' " (People v. Sperling (2017) 12 Cal.App.5th 1094, 1102.) A sentencing court " 'is presumed to have considered all relevant factors unless the record affirmatively shows the contrary.' " (Ibid.)
Renner argues his "own prior victimization, his voluntary participation in successful treatment, his rehabilitation, his long period of good conduct, his acceptance of responsibility and expression of remorse, and his very low risk of reoffense clearly outweigh Doe's vulnerability and Renner's arguable abuse of a position of trust." He asserts six years "is harsh enough punishment for an otherwise law-abiding, contributing member of the community, approaching sixty years of age." Renner's arguments do not establish an abuse of discretion.
"Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citation], and may balance them against each other in qualitative as well as quantitative terms." (People v. Roe (1983) 148 Cal.App.3d 112, 119.) Here, the trial court stated at the start of the sentencing hearing that it had read the probation report, the victim impact statement, numerous letters from people in the community supporting Renner (including letters from persons the court knew personally or by reputation whom the court respected), and Renner's letter. The court then considered the victim impact statement, portions of Renner's post-arrest interview with law enforcement at the time of his arrest (which were read verbatim in open court) and counsels' arguments. The trial court concluded there were factors in aggravation and factors in mitigation, and neither outweighed the other. Renner concedes there were factors in aggravation (although he characterizes them as "weak") as well as factors in mitigation. The trial court had discretion to weigh them in qualitative terms to reach the conclusion neither outweighed the other. (See People v. Roe, supra, 148 Cal.App.3d at p. 119.) We cannot say the trial court's assessment was an abuse of discretion. D. Cruel and Unusual Punishment
Finally, Renner claims the 12-year sentence violates the state and federal constitutional prohibitions against cruel and unusual punishment. Although Renner forfeited the issue by failing to raise it in the trial court, we will consider the merits of the claim. (See People v. Russell (2010) 187 Cal.App.4th 981, 993 [addressing claim that sentence was cruel and unusual punishment despite forfeiture " 'in the interest of judicial economy to prevent the inevitable ineffectiveness-of-counsel claim' "].)
"A sentence violates the state prohibition against cruel and unusual punishment (Cal. Const., art. I, §§ 6 & 17) if ' "it is so disproportionate to the crime for which it is inflicted that it shocks the conscience." ' [Citations.] [¶] A sentence violates the federal Constitution if it is 'grossly disproportionate' to the severity of the crime. (U.S. Const., 8th & 14th Amends.; [citation].)" (People v. Russell, supra, 187 Cal.App.4th at p. 993.)
"A defendant has a 'considerable burden' to show a punishment is cruel or unusual under the California Constitution. [Citation.] 'The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment.' [Citation.] Thus, ' "[o]nly in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive[.]" ' " (People v. Reyes (2016) 246 Cal.App.4th 62, 86 (Reyes).) In this case, Renner received the statutory midterm for the offense of continuous sexual abuse of a child—a determinate sentence of 12 years in state prison. This is not one of those rarest of cases.
Our high court has identified three criteria or analytical techniques to determine whether a particular sentence is disproportionate to the offense for which it is imposed. (In re Lynch (1972) 8 Cal.3d 410, 425-427.) First, we "examine 'the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.' " (Reyes, supra, 246 Cal.App.4th at pp. 86-87.) Second, we "compare the punishment imposed with punishments prescribed by California law for more serious offenses." (Id. at p. 87.) Third, "we compare the punishment imposed with punishments prescribed by other jurisdictions for the same offense." (Ibid.)
First, " '[a] look at the nature of the offense includes a look at the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendant's involvement, and the consequences of defendant's acts. A look at the nature of the offender includes an inquiry into whether "the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." ' " (Reyes, supra, 246 Cal.App.4th at p. 87.)
Renner began sexually abusing Doe when Doe was five years old and continued abusing him for two years. Renner recognized that Doe was a particularly vulnerable child because of his chaotic home life, and acknowledged that Doe was like a member of Renner's family. Renner was an adult in his late thirties at the time; he was not an immature youth or a person of limited intelligence. (Cf. People v. Dillon (1983) 34 Cal.3d 441, 477-489 [life sentence was cruel and unusual punishment for felony murder where defendant was 17 years old and an "unusually immature youth"]; In re Rodriguez (1975) 14 Cal.3d 639, 642-644, fns. 1, 5, and 6, 655 [22 years in prison was disproportionate for single act of lewd conduct where defendant had an IQ of about 68 and his "conduct was explained in part by his limited intelligence, his frustrations brought on by intellectual and sexual inadequacy, and his inability to cope with these problems"].)
As to the nature of the crime, we note, "[t]here exists a strong public policy to protect children of tender years." (People v. Olsen (1984) 36 Cal.3d 638, 646.) "The sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people." (Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234, 244.)
Renner argues his conduct is less morally culpable because he was a victim of sexual abuse when he was a child. But this fact does not negate the harm he caused Doe, who suffered significant emotional damage due to the abuse. Nor did Renner's own victimization lead him to show compassion for Doe immediately after he stopped abusing him. Instead, Renner admitted he treated Doe "like crap." And after Doe's allegations came to light decades later, Renner said he looked into getting Doe some help without having to pay for treatment himself, but then thought " 'Fuck that kid. You know, I'm busted now or whatever. He's on his own or whatever. And my reputation is going to just go to shit.' " We cannot say the nature of the offense or the offender show the sentence in this case is so disproportionate that it shocks the conscience.
These statements from Renner's post-arrest interview with law enforcement including these statements were read at sentencing.
Second, a comparison of punishments for more serious offenses does not support Renner's position. He cites cases where courts upheld life sentences for sex offenses against children, and he argues the circumstances of those offenses were considerably more aggravated than this case. But Renner did not receive a life sentence, and these cases do not demonstrate his sentence is disproportionate.
Renner also cites In re Rodriguez, supra, in which the defendant, who was 26 years old and had an IQ of about 68, committed a single act of lewd conduct with a six-year-old girl, and was given an indeterminate sentence of one year to life. (14 Cal.3d at pp. 642-644, fns. 1, 5, and 6.) After the defendant served 22 years in prison, he sought release through a writ of habeas corpus, and our high court held the 22 years served was disproportionate to his offense and continued imprisonment would violate the state constitutional prohibition against cruel and unusual punishment. (Id. at p. 656.) The court noted the crime "lasted only a few minutes." (Id. at p. 655.) Rodriguez does not suggest Renner's much shorter sentence of 12 years for the crime of continuous sexual abuse that spanned two years would constitute cruel and unusual punishment. --------
Third, Renner does not even attempt to address the analytical technique of comparing his punishment with punishments prescribed by other jurisdictions for the same offense. We take this as a concession that his sentence withstands a constitutional challenge on this basis. (Reyes, supra, 246 Cal.App.4th at pp. 89-90; People v. Retanan (2007) 154 Cal.App.4th 1219, 1231.)
In short, Renner has failed to demonstrate a violation of the state constitutional prohibition against cruel or unusual punishment. Likewise, he fails to demonstrate the sentence is grossly disproportionate under the federal constitution. (See People v. Baker (2018) 20 Cal.App.5th 711, 733 [for the same reasons a sentence was not cruel or unusual punishment under the state constitution, there was no inference of gross disproportionality under federal constitutional analysis].)
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.