Appellant’s claims that the trial court abused its discretion in sentencing him to the middle term on one count and imposing a consecutive sentence on another count were forfeited because he did not object at the time of sentencing. Sperling worked as a massage therapist and Amanda, a woman with developmental disabilities, was one of his regular clients. During Amanda’s massages, Sperling would sexually assault her. Amanda eventually told a caregiver about the sexual assaults and Sperling was charged with numerous sex offenses. He pleaded guilty 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).) The trial court sentenced him to the midterm of six years on count 1 and a two-year consecutive sentence on count 4, for a total eight-year sentence. Sperling did not object when the trial court imposed the sentence. On appeal, Sperling argued the trial court abused its discretion in imposing the middle term on count 1 and imposing a consecutive sentence on count 4. Held: Affirmed. Initially, the Court of Appeal concluded that Sperling forfeited his sentencing claims because he failed to object at the time of sentencing. 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. This rule applies where a defendant argues for the first time on appeal that the trial court failed to consider relevant mitigating factors or erred by imposing a consecutive term.

Even if appellant had objected, the trial court would not have abuse its discretion in imposing the middle term on count 1 and imposing a consecutive sentence on count 4. Sperling argued that the trial court abused its discretion in sentencing him to the middle term on count 1 because it failed to consider mitigating factors and erroneously considered facts that were elements of the offense as aggravating factors, which is prohibited by California Rules of Court, rule 4.420(d). The Court of Appeal disagreed. The mitigating factors were set forth in a defense filing, which the trial court stated it had read and considered. The trial court also declared that it had considered the aggravating and mitigating circumstances. As an aggravating factor, the trial court considered that Amanda was particularly vulnerable. This was not an impermissible dual use of facts because section 286, subdivision (g) does not require that the victim be particularly vulnerable; it states that the victim must be incapable of giving legal consent because of a mental disorder or developmental or physical disability. The trial court’s observation that appellant inflicted physical and emotional harm upon Amanda also was not a dual-use-of-facts violation because physical and emotional harm is not an element of the offense. Appellant also argued that the trial court abused its discretion in imposing a consecutive sentence on count 4 because none of the statutory factors pertaining specifically to imposing a consecutive sentence were present. However, Sperling failed to satisfy his burden to show that trial court’s decision was irrational or arbitrary. Even if the trial court had stated improper reasons for imposing consecutive sentences, any error was harmless. In determining whether to impose consecutive sentences, the trial court could have considered the same aggravating factors it considered in deciding to impose the middle term on count 1.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B272275M.PDF