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People v. Sperling

California Court of Appeals, Second District, Sixth Division

June 8, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
GARY WAYNE SPERLING, Defendant and Appellant

          Superior Court of Ventura County, No. 2015011290, Nancy Ayers, Judge.

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[Copyrighted Material Omitted]

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         COUNSEL

         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, Assistant Attorney General, Noah P. Hill and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

         Opinion by Yegan, Acting P. J., with Perren and Tangeman, JJ., concurring.

          OPINION

         YEGAN, Acting P. J.

         In this 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.[1]

         Gary 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.

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Code, § § 286, subd. (g), 288a, subd. (g).)[2] 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.

         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');">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.

         Amanda, 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."

         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

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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 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 ...


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