Filed 6/8/2017
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


THE PEOPLE,                                  2d Crim. No. B272275
                                          (Super. Ct. No. 2015011290)
     Plaintiff and Respondent,                 (Ventura County)

v.

GARY WAYNE SPERLING,

     Defendant and Appellant.



             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


        The appeal is frivolous. (See In re Marriage of Flaherty
        1

(1982) 31 Cal.3d 637, 650.) We may impose sanctions for a
frivolous criminal appeal. (People v. Superior Court (Laff) (2001)
25 Cal.4th 703, 738, fn. 16.) We elect not to do so here. But
counsel is warned that in the future we may impose sanctions
where a criminal appeal is maintained despite an
insurmountable procedural bar or contrary to long-standing
             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. 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; People v. Munoz (2007) 155
Cal.App.4th 160, 167.) Pursuant to the waiver, we include facts
underlying the dismissed counts.


precedent precluding an appellate court from “second guessing”
the lawful exercise of sentencing discretion.
      2
        All statutory references are to the Penal Code.




                                2
             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 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




                                 3
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 again.”
             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




                                 4
eight years on count 1 plus a consecutive term of two years on
count 4].”
                   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




                                 5
recommended an eight-year prison sentence: the six-year middle
term on count 1 plus a consecutive two-year term on count 4.
             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.”




      3
        A superior court judge sits as trier of fact at the probation
and sentencing hearing and, therefore, must have the power to
resolve contested facts relevant to the selection of an appropriate
and just disposition of the case. (See People v. Peterson (1973) 9
Cal.3d 717, 728, 730.) Here the trial court impliedly rejected, i.e.
did not credit, appellant‟s claim that his commission of the crimes
was “influenced by the medication he was taking for his
Parkinson[‟s] disease.” “We cannot substitute our judgment for
that of the trial court on issues of credibility. [Citation.]” (People
v. Markley (2006) 138 Cal.App.4th 230, 242.)




                                  6
                   Forfeiture of Sentencing Claims
             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.” Rule 4.420(d) of the California
Rules of Court prohibits such a dual use of facts: “A fact that is
an element of the crime upon which punishment is being imposed
may not be used to impose a greater term.”4 Appellant also
claims that the trial court abused its discretion in imposing a
two-year consecutive sentence on count 4 because “[n]one of the
[statutory] factors pertaining specifically to the imposing of
concurrent or consecutive sentences supported the imposition of
consecutive sentences.”
             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,

      4
       All further references to rules are to the California Rules
of Court.



                                 7
581-582 [Scott forfeiture doctrine applies where defendant
complains for first time on appeal that trial court failed to
consider relevant mitigating factors]; People v. Erdelen (1996) 46
Cal.App.4th 86, 90-91 [because defendant failed to object at
sentencing, he was precluded from contending that trial court
had relied on an element of the offense to impose the upper term];
People v. Ortiz (2012) 208 Cal.App.4th 1354, 1372, fn. 6 [“To the
extent Ortiz . . . argues the trial court erred by making the three-
year term consecutive to his life term, . . . he waived any error by
not timely and specifically objecting to that purported error”].)
             “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




                                   8
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 Rule
4.421, subd. (a)(3) [“[c]ircumstances in aggravation” include the
factor that the “victim was particularly vulnerable”].) Appellant
argues that this was an impermissible dual use of facts because
“section 288[a], subdivision (g) [sic, the middle term was imposed
for sodomy in violation of section 286, subdivision (g)] only
applies when the victim is particularly vulnerable as a result of a
disability.” We disagree. The statute says that the victim must
be “incapable” of giving legal consent “because of a mental
disorder or developmental or physical disability.” (§ 286, subd.
(g).) The statute does not require that the victim be particularly
vulnerable.




                                 9
             Furthermore, Amanda was not particularly
vulnerable only because of her mental disability. She was also
particularly vulnerable because she was petite, she was naked
under a blanket, and appellant knew that she craved forbidden
sweets. Appellant took advantage of this craving to victimize
her. He would touch her inappropriately and offer her sweets as
a reward for tolerating his behavior. The trial court referred to
appellant‟s “grooming” of Amanda, “i.e., patiently cultivating and
manipulating [her] to achieve his purposes.” (People v. Shazier
(2014) 60 Cal.4th 109, 145.)
             Finally, Amanda was particularly vulnerable because
appellant occupied a position of trust or confidence as her
professional masseur. (See Rule 4.421, subd. (a)(11)
[“[c]ircumstances in aggravation” include the factor that
“defendant took advantage of a position of trust or confidence”].)
Amanda trustfully allowed appellant to rub and manipulate her
body in the expectation that he would comply with the rules of
his profession.
             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 section 286,
subdivision (g). (Rule 4.420(d).)




                                10
                           Consecutive Term
             A trial court is required to state its reasons for
imposing consecutive sentences. (Rule 4.406(b)(5).) The trial
court here concluded that consecutive sentences were warranted
because the act of sodomy (count 1) and the act of oral copulation
(count 4) “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.”
             “„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 section 667.6,
subdivision (d), which provides, “A full, separate, and consecutive
term shall be imposed for each violation of an offense specified in




                                 11
subdivision (e) if the crimes involve separate victims or involve
the same victim on separate occasions.” The appellate court
concluded that the trial court‟s statement of reasons “does not
provide a sufficient analysis of the facts to allow this court to
determine why it concluded all 20 sex offense acts must have
occurred on „separate occasions‟ within the meaning of
subdivision (d).” (People v. Irvin, supra, at p. 1070.)
             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 Rule 4.425(b)(1) [in deciding whether to
impose consecutive sentences, court may consider any
circumstance in aggravation except “[a] fact used to impose the
upper term”].) The aggravating factors were: (1) The victim was
“particularly vulnerable.” (2) Appellant “took advantage of her
disability. He groomed her.” (3) Appellant “inflicted physical and




                                12
emotional harm on the victim.” (4) Appellant “doesn‟t appear to
be remorseful. He doesn‟t admit the entirety of the conduct. He‟s
minimizing.” In view of these aggravating factors and the
probation officer‟s recommendation that appellant receive the 10-
year maximum sentence, it is not reasonably probable that the
trial court would have imposed concurrent instead of consecutive
terms. (See People v. Smith (1984) 155 Cal.App.3d 539, 546
[“because adequate reasons for imposing full consecutive
sentences on counts V and VI existed in abundance, the error in
failing to state those reasons does not require a remand for
resentencing”]; People v. King, supra, 183 Cal.App.4th at p. 1323
[“Only one criterion is necessary to impose a consecutive
sentence”].)
                             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.



                               13
                      Nancy Ayers, Judge

               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.
