Opinion
D072902
07-16-2018
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER BATLINER, Defendant and Appellant.
George L. Schraer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel B. Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD262567) APPEAL from a judgment of the Superior Court of San Diego County, Eugenia Eyherabide, Judge. Affirmed. George L. Schraer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel B. Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Christopher Batliner challenges his sentence after pleading guilty to seven counts of committing a lewd act on a child under the age of 14. The trial court sentenced Batliner to prison for a total term of 20 years, which includes an upper term on count 1.
On appeal, Batliner contends that trial counsel rendered ineffective assistance in failing to object to the factors relied on by the trial court when it decided to impose the upper term on count 1.
We conclude that Batliner's contention is without merit. We therefore affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
We take many of the underlying facts of the case from the probation report, given that no trial was held because Batliner pleaded guilty to multiple of the charged offenses.
While investigating internet child pornography, law enforcement officers found content on online "chat logs," in which Batliner participated, that suggested he had molested two of his nephews. Investigators interviewed Batliner's nephews in order to determine whether he had committed sexual offenses against them. Based on these interviews, it became clear that during the early 2000s, Batliner spent a significant amount of time with his then six- and eight-year-old nephews. He would take the children on "trips to Home Depot, hiking, to see a movie or to play video games at Batliner's house." He offered to take the boys to Disneyland, and he would at times sleep over at their house.
Batliner developed a sexual attraction to his young nephews. The older nephew recalled that Batliner frequently massaged him, which included pulling down his pants and massaging his bottom. Batliner would "always make a game of things." They would be naked together in the Jacuzzi. Batliner would put his hand on the victim's private area when throwing him into the pool. The older nephew discussed with his sibling the fact that Batliner would give them massages and that Batliner would massage his nephew "too close to his butt area." Batliner would "always ma[k]e sure to close the door and turn off the lights every time." Batliner also had the idea to play a game where the victim " 'just put [his penis] on parts of [Batliner's] body thinking it was fun.' " Batliner also created a game where he would entice his older nephew to put body parts, including his penis, into appellant's mouth while Batliner was blindfolded. Batliner would then "guess" which body part was inside his mouth.
Batliner also molested a younger nephew. He massaged the younger nephew similarly to how he had previously molested the other one. Batliner would continually close the door and turn off the lights, even though both the victim and Batliner knew that Batliner had been told, presumably by the victims' parents, not to have the door shut. Batliner would pull down his younger nephew's pants or shorts and massage his "butt area." One of the victims also recalled how Batliner would blindfold himself and then touch the victim on certain parts of his body.
Batliner apparently installed a " 'special button' " that would allow him to turn off the lights in the Jacuzzi while the lights "everywhere else would still be on." One night, the victims' father saw that Batliner and one of the victims were in the Jacuzzi with the light turned off. Suspicious, the father questioned his son. The child admitted that Batliner had told him to take off his swim trunks "so he could float better," and also acknowledged that Batliner would "hold him up when he would float and that sometimes, Batliner would accidentally touch his private parts."
Batliner's brother, the victims' father, became concerned and confronted his brother. The victims' father was not sure at that time that any abuse was occurring, but he was sufficiently concerned about Batliner's response to the confrontation that he prohibited Batliner from further contact with the family. At some point after that, Batliner admitted to having had sexual contact with at least one of his nephews, but claimed that the boy was " 'choosing to do everything with me and the only thing I'm not doing is stopping it as an adult.' " A few days later, Batliner sent his brother a letter in which he confessed that he had engaged in the sexual molestation of two of his nephews.
In the letter, Batliner references a third nephew, but claims that he never engaged in inappropriate sexual behavior with that nephew.
The San Diego District Attorney charged Batliner with six counts of committing a lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a); counts 1-4, 6-7), and one count of engaging in a sex act with a child under the age of 10 (§ 288.7, subd. (b); count 5). The information also alleged with respect to all counts, except count 5, that Batliner committed the offenses against more than one victim (§ 667.61, subd. (e)(4)).
Further statutory references are to the Penal Code unless otherwise indicated.
On April 3, 2017, the prosecutor added two additional counts of committing a lewd act on a child under the age of 14 (counts 8, 9). On that same date, Batliner pleaded guilty to seven counts of committing a lewd act on a child under the age of 14 (counts 1-3, 6-9). Counts 4 and 5, as well as the section 667.61 allegations, were dismissed. The parties agreed that the maximum punishment that Batliner could receive would be 20 years in prison.
The trial court sentenced Batliner to prison for a term of 20 years, comprised of an upper term of eight years on count 1, and multiple consecutive terms of two years each with respect to counts 2, 3, 6, 7, 8, and 9.
Count 1 is identified as involving the "jacuzzi incident," in which Batliner lifted up one of his nephews, touching his "private area and butt" while doing so.
Batliner filed a timely noticed of appeal.
III.
DISCUSSION
Batliner contends that he received ineffective assistance of counsel as a result of his trial attorney's failure to object to the trial court's findings regarding factors in aggravation to support the imposition of an upper term sentence on count 1. According to Batliner, the court's stated reasons are invalid circumstances in aggravation under the Rules of Court. A. Additional background
At the sentencing hearing, the parties argued their respective positions regarding what would be an appropriate sentence. Defense counsel asked the court to strike portions of the probation report and registered opposition to imposition of the upper term and consecutive sentencing, seeking instead a low term on count 1 and concurrent sentencing on the other counts.
The trial court ultimately chose to impose the upper term on count 1, stating: "The court is picking the high term because of the length and period of time for which this happened, and the fact that Mr. Batliner was an active participant, encouraged these boys, making up pretend games, taking advantage of them in that regard. Hence the court will pick the high term." B. Legal Standards
1. Ineffective assistance of counsel
To establish constitutionally ineffective assistance of counsel, a defendant must show both deficient performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Williams (2013) 56 Cal.4th 630, 690.) The United States Supreme Court has explained: "[T]he defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." (Strickland, supra, at p. 687.) Further, " ' "[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal." ' " (People v. Johnson (2016) 62 Cal.4th 600, 653.)
A court considering whether counsel's performance was deficient must " 'exercise deferential scrutiny' " and "should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight." (People v. Scott (1997) 15 Cal.4th 1188, 1212.) "Because we accord great deference to trial counsel's tactical decisions, counsel's failure to object rarely provides a basis for finding incompetence of counsel." (People v. Lewis (2001) 25 Cal.4th 610, 661.) In addition, ineffective assistance of counsel claims must be rejected on direct appeal if the record does not affirmatively show why counsel failed to object and the circumstances suggest counsel could have had a valid tactical reason for not objecting. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
2. Sentencing standards
When a statute specifies three possible terms of imprisonment, the court is granted the discretion to choose the appropriate term, and the court may impose an upper term when the court determines that circumstances in aggravation outweigh circumstances in mitigation. (§ 1170, subd. (b).) In choosing the appropriate sentence, the trial court may consider "the record in the case, the probation officer's report . . . and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing." (§ 1170, subd. (b).)
The trial court's discretion is broad with respect to decision-making regarding the proper sentence. (People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).)
In exercising discretion to impose one of three possible sentences outlined in a statute, the court may examine the circumstances of mitigation or aggravation as enumerated in the California Rules of Court. (Cal. Rules of Court, rule 4.420(b) ; Sandoval, supra, 41 Cal.4th at p. 848.) For example, some of the aggravating circumstances enumerated in rule 4.4.21 relate to the crime for which the defendant is being sentenced, including whether "[t]he victim was particularly vulnerable" (rule 4.421(a)(3)); whether "[t]he manner in which the crime was carried out indicates planning, sophistication, or professionalism" (rule 4.421(a)(8)); and whether "[t]he defendant took advantage of a position of trust or confidence to commit the offense" (rule 4.421(a)(11)). The court may also consider enumerated factors that relate to the defendant, such as whether "[t]he defendant has engaged in violent conduct that indicates a serious danger to society" (rule 4.421(b)(1)); whether "[t]he defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness" (rule. 4.421(b)(2)); and whether "[t]he defendant's prior performance on probation, mandatory supervision, postrelease community supervision, or parole was unsatisfactory" (rule 4.421(b)(5)).
Further rule references are to the California Rules of Court.
The aggravating factors under rule 4.421 are not exclusive. In choosing the appropriate sentence, a court may rely on any other factor that it determines is "reasonably related to the sentencing decision" (rule 4.420(b)), including "[a]ny other factors statutorily declared to be circumstances in aggravation or which reasonably relate to the defendant or the circumstances under which the crime was committed" (rule 4.421(c)). For example, courts have considered circumstances in aggravation that are not enumerated in rule 4.421 to include a circumstance in which a defendant exploits his or her relationship with a child (see People v. Quintanilla (2009) 170 Cal.App.4th 406, 413 ["Defendant exploited the cordial relationship he had built . . . There was nothing improper in finding such actions to be an aggravating factor"]) and a circumstance in which a perpetrator hides his or her true interest in the victims and removes the victims from the sight of others (see People v. Jones (1992) 10 Cal.App.4th 1566, 1577 [removal of victims from the sight of others after establishing a pretense of trust constitutes an aggravating factor]; see also People v. Burbine (2003) 106 Cal.App.4th 1250, 1263 ["Appellant's prolonged deception . . . concerning the true nature of his interest in the victim . . . did exactly what . . . an aggravating factor should do, i.e., it made this particular crime distinctively worse than others of its nature"]). It is thus clear that a sentencing court may rely on factors that are not specifically enumerated in the Rules of Court to impose an upper term sentence if the court determines that the existence of a particular factor or factors renders a crime of a more serious or egregious nature than it would be simply by the fact that it was committed. C. Analysis
Batliner contends that his trial attorney rendered ineffective assistance in failing to object to the two factors on which the trial court stated that it was relying in choosing an upper term sentence. Specifically, Batliner argues that the court's reliance on the stated circumstance "of the length and period of time for which this happened" was improper because "the offense was not an ongoing offense like kidnapping . . . ." He argues that "[e]ach separate act is a separate violation of section 288" and that "[s]uch acts normally last seconds or minutes." According to Batliner, in imposing sentence on count 1, the court was limited to viewing the actions underlying count 1, only, which involved Batliner lifting one of his nephews from the jacuzzi and putting his hand on the victim's "private area and butt" before throwing him into the jacuzzi. Batliner maintains that the act underlying count 1 "had to last less than a second," and because it was "brief," the court must have "erred when it used 'the length and period of time for which this happened' as a basis for imposing the upper term on count 1." Batliner further argues that the trial court's second stated reason (i.e., that Batliner " 'was an active participant, encouraged these boys, making up pretend games, taking advantage of them in that regard' ") was improper because "[t]he vast majority of crimes, including lewd acts, are committed by defendants who actively participate in a crime's commission," such that "active participation is not an aggravating factor supporting the imposition of an upper term." Batliner therefore argues that his trial counsel performed deficiently in failing to object to the court's stated terms. We disagree with Batliner's contention.
In our view, counsel did not provide ineffective assistance because the particular objections that Batliner contends his attorney should have made in the trial court likely would have been properly overruled. While the trial court's articulation of its reasoning for imposing the upper term may have been somewhat imprecise, the court's statement that Batliner "was an active participant, encouraged these boys, making up pretend games, taking advantage of them in that regard" clearly includes multiple proper aggravating factors. Although Batliner specifically takes issue with the portion of the court's statement to the effect that Batliner "was an active participant," he makes no argument with respect to the other portions of the court's reasoning, and those are indeed factors "reasonably related to the sentencing decision" (rule 4.420(b)). The court was clearly referring in its comments to the fact that Batliner had taken advantage of his position of trust in the boys' lives, as their uncle, and had groomed them to participate in his offenses in a particularly troubling manner—i.e., by making the boys think that he was playing "games" with them, he encouraged them to engage in the sexual misconduct and at times, even initiate it. In this manner, Batliner took advantage of the boys' trust in him and their particular vulnerabilities as young children wanting to engage in play, and also took advantage of his position of trust in the family as their uncle, all of which touch on enumerated factors in aggravation (see rule 4.421(a)(3) [victim particularly vulnerable] & (a)(11) [takes advantage of position of trust]).
It is worth noting that defense counsel argued vigorously that the facts of this case warranted something less than an upper term sentence on count 1 and less than the full 20 years that Batliner could be sentenced to pursuant to the plea agreement. Counsel argued that the facts of the case supported a low term and concurrent sentencing, noting that much of the conduct involved nothing more serious than "back rubbing and touching," Counsel also raised the issue that Batliner himself had been molested at the age of five, and that his own issues had been overshadowed by an older brother's mental health issues. He further noted that Batliner presented a low risk to reoffend based on expert assessments, and that he was doing well in treatment, had not had contact with his nephews after agreeing not to do so in 2008, had been compliant with supervision while he had been released prior to trial, and has no psychiatric or substance abuse issues. Counsel also had family members present at the sentencing hearing to speak on behalf of Batliner, noted that there were a number of other people in the courtroom who supported Batliner, and presented positive descriptions of Batliner from friends and family in a sentencing memorandum. It is thus clear that defense counsel attempted in numerous ways to obtain a more favorable sentence for his client than the 20-year maximum term that was permissible pursuant to the terms of the plea agreement.
In addition, the trial court could have relied on the length of time over which the sexual misconduct occurred in deciding to impose an upper term on count 1. It is clear that the court may look to factors regarding the defendant, including the totality of a defendant's criminal conduct, in choosing an appropriate sentence. (See rule 4.421(b).) Further, the additional charges in the case, as well as the multiple victim allegations, had been dismissed pursuant to a Harvey waiver, which specifically allowed the court to consider Batliner's "prior criminal history and the entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations [in] . . . imposing sentence." Accordingly, the court was free to consider Batliner's entire criminal history, including the dismissed charges, when imposing sentence. (See People v. Goulart (1990) 224 Cal.App.3d 71, 80.) It is clear from the court's comments that the court was considering the length of time over which Batliner had been sexually abusing his nephews, and the fact that Batliner had admitted to a lengthy pattern of criminal conduct. Batliner's history and pattern of committing sexual offenses against his nephews was relevant to concluding that his commission of count 1 involved the aggravated circumstance that the charged offense was part of a longstanding pattern of criminal conduct involving the victims. However, even if the court's reliance on such a factor were improper, the other factors recited by the court were clearly proper. We therefore cannot conclude that if defense counsel had objected, the court would have chosen to impose a lesser term of imprisonment. (People v. Osband (1996) 13 Cal.4th 622, 728 [a single aggravating factor will support imposition of an upper term].). Trial counsel could therefore have reasonably determined that it would have been futile to object to the court's reliance on the "length of time" factor. "Counsel does not render ineffective assistance by failing to make . . . objections that counsel reasonably determines would be futile." (People v. Price (1991) 1 Cal.4th 324, 387.)
People v. Harvey (1979) 25 Cal.3d 754.
Although the court's phrasing suggested that its reliance on the fact that Batliner "was an active participant, encouraged these boys, making up pretend games, taking advantage of them in that regard," constituted a single factor, as we explained above, the court's comments touched on at least two aggravating concepts—i.e., the defendant taking advantage of a position of trust, and the particular vulnerability of the victims. --------
For these reasons, we reject Batliner's argument that his attorney's failure to object to the circumstances in aggravation relied on by the trial court to impose an upper term sentence on count 1 rendered his attorney's performance deficient.
IV.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR: HUFFMAN, Acting P. J. NARES, J.