California Court of Appeals, Second District, Sixth Division
modified June 28, 2017.]
Court of Ventura County, No. 2015011290, Nancy Ayers, Judge.
[Copyrighted Material Omitted]
Gorin, Alan Eisner and Dmitry Gorin for Defendant and
Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney
General, Noah P. Hill and David A. Voet, Deputy Attorneys
General, for Plaintiff and Respondent.
by Yegan, Acting P. J., with Perren and Tangeman, JJ.,
concurring. Concurring opinion by Yegan, Acting P. J.
Acting P. J.
extremely aggravated sexual assault case, appellant asks us
to reverse discretionary sentencing choices. We will not do
so. The rules on appeal concerning forfeiture and abuse of
discretion compel affirmance. Appellant is fortunate that he
was not sentenced to prison for the maximum 10-year term.
Wayne Sperling appeals from the judgment entered after his
guilty plea to sodomizing (count 1) and orally copulating
(count 4) a victim who was incapable of giving consent
because of a developmental disability. (Pen. Code, §
§ 286, subd. (g), 288a, subd. (g).) Both offenses were
committed while appellant, a professional masseur, was
supposed to be giving the victim a massage. Appellant
contends that the trial court abused its discretion in
sentencing him to prison for eight years. We affirm.
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');">25 Cal.3d 754 [159 Cal.Rptr. 696, 602 P.2d
396]; People v. Munoz (2007) 155 Cal.App.4th 160,
167 [65 Cal.Rptr.3d 815].) Pursuant to the waiver, we include
facts underlying the dismissed counts.
the victim, is chronologically 25 years old. She is
developmentally delayed with an intelligence quotient (IQ) of
about 50. " She is blonde and petite and looks and acts
like a child." She suffers from Prader-Willi syndrome, a
genetic disorder. Key features of the syndrome are mental
retardation and an insatiable appetite. " People with
this syndrome always feel hungry; no matter what they eat
they are never full." Amanda " is on a strict diet
of 850 calories per day."
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."
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."
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."
to Amanda's mother, Amanda " explained ... that
[appellant] started off by touching her inappropriately and
immediately offered sweets to her. The touching progressed to
the sexual acts and each time [appellant] would give her
sweets such as donuts, snickers, and candy bars, which she
had never tasted before." The mother said that Amanda
" is very upset and frequently has nightmares about
[appellant] breaking into the residence and abusing her
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.
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 ...