People v. SperlingPeople v. Sperling
Facts
Appellant waived his right to a preliminary hearing. Our summary of the facts is based on the probation report, attachments to the report, and testimony at the sentencing hearing. In addition to the two counts to which appellant pleaded guilty, the information alleged three counts that were dismissed at the time of sentencing. The dismissed counts were one count of oral copulation and two counts of anal and genital penetration by a foreign object. In a document entitled “Felony Disposition Statement,” appellant “agree[d] that all facts and information relating to any and all counts . . . which are dismissed by the court as part of this disposition may be included in the probation report and considered by the court in determining sentence.” This is a “Harvey waiver.” (People v. Harvey (1979) 25 Cal.3d 754; People v. Munoz (2007) 155 Cal.App.4th 160, 167.) Pursuant to the waiver, we include facts underlying the dismissed counts.
As a reward for good behavior and “for following her diet restrictions,” Amanda received a massage each Saturday. Appellant was the masseur. During the massage, “she was completely naked, but covered by a blanket.”
After a massage on April 4, 2015, Amanda told a caregiver, “[Appellant] showed me his penis and he stuck it inside me.” She later told her mother that appellant “had touched her privates with his fingers, touched her ‘boobs,’ put his penis ‘in her butt,’ had her touch his penis with her hands, ‘licked her butt,’ and told her not to tell anyone about it.” Amanda said “that there was inappropriate touching on previous visits.”
During questioning by a deputy sheriff, Amanda reported her complaints: Appellant “put his hands on her breasts, kissed her on the mouth, and put his tongue inside her mouth. He also put his fingers on or inside her anus and may have also licked her anus in the past.” At the end of the massage on April 4, 2015, Amanda “was on her right side when [appellant] asked, ‘Does that feel good?’ [S]he saw his penis around her buttocks and then realized his penis was inside her anus.”
According to Amanda‘s mother, Amanda “explained . . . that [appellant] started off by touching her inappropriately and immediately offered sweets to her. The touching progressed to
A medical examination disclosed lacerations on Amanda‘s anus, bruising three inches inside the rectum, “slight bleeding” inside the rectum, and bruising at the internal sphincter of the rectum.
During an interview at the Ventura County Probation Agency, appellant said, “‘Something snapped, and it could have happened with any other woman.‘” Appellant claimed that he “was influenced by the medication he was taking for his Parkinson‘s disease. A side effect of this medication, Carbidopa-Levodopa, is increased sexual urges. He was taking a high dose of the medication, which caused him to have more sexual impulses. Since this occurred, his dosage has been reduced.” Appellant stated that “the victim is ‘very smart and knew what she was doing.’ [H]e believes that she was ‘coached’ on the things she said. He is remorseful for his actions and is sure this affected the victim mentally.”
Probation Officer‘s Recommendation
The probation officer concluded: “[Appellant] is a danger as evidenced by his actions and the manner in which he carried them out. He clearly preyed on the victim because of her illness and carefully planned his abuse. He earned her trust and used sweets . . . to get her to comply with his sexual acts. . . . As a result, he is not deserving of any other sentence, but the maximum sentence of ten years in prison [i.e., the upper term of
Defense Sentencing Statement
Before the sentencing hearing, appellant filed a document entitled “Defense Sentencing Statement.” As exhibits to the statement, appellant attached two psychological reports. In the statement appellant argued that he should be granted probation. Appellant noted that he is 68 years old and “has lived a crime free life up until now.” Should the court not grant probation, appellant requested that it impose “low-term concurrent sentences, based on the following: (1) his good character and no criminal history, (2) the expert opinions and recommendations contained in the psychological assessments, and (3) the mitigating factors heavily outweighing any aggravating factors.”
Sentencing Hearing
At the sentencing hearing, appellant‘s brother said that appellant has Parkinson‘s disease and suffers from back pain. The brother described appellant as “an old man with a degenerat[ive] illness.” The brother continued, “I fear if he‘s incarcerated, he will not live to return to society.” Defense counsel said that, “[s]ince his arrest, [appellant has] been undergoing treatment on his own.” Counsel asserted that two psychologists had found “that [he] lacks any significant risk of recidivism.” Appellant spoke and apologized to Amanda and her family.
The prosecutor asked that “[appellant] be given the benefit of his early plea and the fact that he waived prelim. [i.e., waived his right to a preliminary hearing].” The prosecutor
The trial court stated: “I have considered aggravating and mitigating circumstances, [and] find that the mitigating circumstances and the aggravating circumstances . . . essentially balance each other, and I am accepting the People‘s representation that the midterm [of six years] is [the] appropriate term on Count 1 [sodomy].” As to count 4 (oral copulation), the court reasoned that a two-year consecutive sentence is appropriate because the offenses “were significantly different sexual acts, and there was significant movement of the victim over a course or period of time, which allowed the defendant an opportunity to reflect on his conduct and stop, but he didn‘t.”3
When the trial court imposed the aggregate eight-year sentence, appellant did not object. The court asked defense counsel, “Is there any other record . . . you would like me to make?” Counsel answered, “No, your Honor. Thank you.”
Appellant claims that the trial court abused its discretion in sentencing him to the six-year middle term on count 1 because it failed to consider several mitigating factors and “erroneously considered as aggravating factors facts that were elements of the offense itself.”
Appellant forfeited his sentencing claims because he did not object at the time of sentencing. In People v. Scott (1994) 9 Cal.4th 331, 353, our Supreme Court said: “A party in a criminal case may not, on appeal, raise ‘claims involving the trial court‘s failure to properly make or articulate its discretionary sentencing choices’ if the party did not object to the sentence at trial. [Citation.] The rule applies to ‘cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons’ [citation], but the rule does not apply when the sentence is legally unauthorized [citation].” (People v. Gonzalez (2003) 31 Cal.4th 745, 751; see People v. Kelley (1997) 52 Cal.App.4th 568, 581-582 [Scott forfeiture doctrine applies where defendant
“The reason for [the forfeiture] rule is that ‘[i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided.’ [Citations.] ‘[T]he forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.’ [Citation.]” (People v. French (2008) 43 Cal.4th 36, 46.) “Had [appellant] timely and specifically objected below, the trial court presumably would have had an opportunity to correct, and could have corrected, any error. [Citation.]” (People v. Ortiz, supra, 208 Cal.App.4th at p. 1372, fn. omitted.)
No Abuse of Discretion
Even if appellant had timely and specifically objected below, the trial court would not have abused its discretion in imposing the six-year middle term on count 1 and imposing consecutive sentences. “[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. Carmony (2004) 33 Cal.4th 367, 377; see also People v. Surplice (1962) 203 Cal.App.2d 784, 791; In re Gilkison (1998) 65 Cal.App.4th 1443, 1448-1450.)
Imposition of Middle Term
Appellant claims that the trial court failed to consider relevant mitigating factors. “The court is presumed to have considered all relevant factors unless the record affirmatively shows the contrary. [Citations.]” (People v. Kelley, supra, 52 Cal.App.4th at p. 582.) No contrary showing has been made here. The mitigating factors that the trial court allegedly failed to consider were set forth in the Defense Sentencing Statement and the probation report. At the sentencing hearing, the trial court declared that it had “read and considered” the probation report “with all attachments and letters.” It had also “read and considered the [D]efense [S]entencing [S]tatement.” In addition, it had “considered aggravating and mitigating circumstances.”
Appellant contends that, as an aggravating factor, the trial court erroneously considered that Amanda was particularly vulnerable as a result of a disability. (See
Finally, Amanda was particularly vulnerable because appellant occupied a position of trust or confidence as her professional masseur. (See
The trial court would have acted within its discretion if, based on any aspect of Amanda‘s particular vulnerability, it had imposed the eight-year upper term instead of the six-year middle term. “One aggravating factor is sufficient to support the imposition of an upper term. [Citations.]” (People v. Ortiz, supra, 208 Cal.App.4th at p. 1371.)
Appellant claims that the trial court committed a dual-use-of-facts violation when it “noted that [appellant] inflicted physical and emotional harm” upon Amanda. The claim is without merit because the physical and emotional harm she suffered is not “an element” of a violation of
A trial court is required to state its reasons for imposing consecutive sentences. (
“‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary.‘” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) In his opening brief appellant asserts, “As the crimes and their objectives were not predominantly independent of each other, as the crimes did not involve separate acts of violence or threats of violence, and as the crimes were not committed at different times or separate places, the trial court abused its discretion in imposing consecutive sentences.” “This bare, unsubstantiated [and conclusionary] assertion does not . . . satisfy [appellant‘s] burden on appeal.” (People v. King (2010) 183 Cal.App.4th 1281, 1323.)
In his reply brief appellant argues, “The trial court‘s mere statement that there was an opportunity to reflect on the conduct [and stop] . . . is insufficient to support consecutive sentences without further analysis.” In support of his argument, appellant cites People v. Irvin (1996) 43 Cal.App.4th 1063, 1069-1070. Irvin is inapplicable because it involved the mandatory imposition of full consecutive terms pursuant to
Even if the trial court here had stated improper reasons for imposing consecutive sentences, the error would have been harmless. “In order to determine whether error by the trial court in relying upon improper factors in aggravation [or in imposing consecutive sentences] requires remanding for resentencing[,] ‘the reviewing court must determine if “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” [Citation.]’ [Citation.]” (People v. Avalos (1984) 37 Cal.3d 216, 233; accord, People v. Scott, supra, 9 Cal.4th at p. 355 [when trial court “errs in identifying or articulating its sentencing choices, the reviewing court has no choice but to remand the matter for resentencing unless it finds the error nonprejudicial“].)
The trial court imposed the middle term - not the upper term - on count 1. Thus, in determining whether to impose consecutive sentences, the trial court could have considered the same aggravating factors it had considered in deciding to impose the middle term. (See
Conclusion
“Special needs” victims such as Amanda require extra protection from those entrusted with their care. The law takes a dim view of a masseur who does the opposite and takes sexual advantage of a disabled person. The experienced trial court imposed an eight-year prison term. This discretionary sentence choice is reasonable under the circumstances. There is no abuse of discretion or miscarriage of justice.
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
YEGAN, Acting P. J.
We concur:
PERREN, J.
TANGEMAN, J.
Superior Court County of Ventura
Eisner Gorin, Alan Eisner and Dmitry Gorin for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill, David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.