Metropolitan News-Enterprise


Monday, June 12, 2017


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Panel Threatens Sanctions for Challenging Sentences

Second District’s Div. Six Says Penalties Will  Be Considered Where Counsel on Appeal Ask the Court to ‘Second-Guess’ Trial Judges Who Imposed Terms Within Discretion


By a MetNews Staff Writer


The Ventura-based division of this district’s Court of Appeal has sounded a warning that it will consider imposing sanctions, in the future, on lawyers who challenge the length of sentences without a solid basis for doing so.

Div. Six, in an opinion filed Thursday, upheld an eight-year sentence that was imposed on a masseur who pled guilty to sodomizing and orally copulating a woman who, based on mental retardation, was incapable of giving consent. Acting Presiding Justice Kenneth Yegan observed that the defendant “is fortunate that he was not sentenced to prison for the maximum 10-year term” and declared, in a footnote:

“[C]ounsel is warned that in the future we may impose sanctions where a criminal appeal is maintained…contrary to long-standing precedent precluding an appellate court from ‘second guessing’ the lawful exercise of sentencing discretion.”

 Yegan noted that the appellant, Gary Wayne Sperling, “forfeited his sentencing claims because he did not object at the time of sentencing,” but said that even if he hadn’t, his contentions lack merit.

He wrote:

“ ‘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 MetNews solicited comments on the footnote and received responses—which drew attention to the question of whether retained counsel should be expected to, or may, file a Wende brief—pursuant to People v. Wende (1979) 25 Cal.3d 436—indicating the lack of any non-frivolous issues.

Justice Baron Comments

Retired Court of Appeal Justice Elizabeth Baron, who served in this district from 1996-98, observed yesterday that there is nothing in the case warranting publication, other than the footnote. She remarked:

“Because defendant filed a defense sentencing memorandum in this case, it is clear that the defendant/appellant sincerely believed that his mitigating factors outweighed the aggravating factors. Thus, appellant counsel in the Sperling case was more than likely dealing with an emotional client who was not going to listen to reason with respect to his belief that the sentence imposed by the judge was unfair.”

In such an instance, she suggested, “the better choice is for counsel” to file a Wende brief which triggers an invitation to the appellant “to set forth his/her reasons for believing the sentence was unfair.” Baron noted:

“A Wende proceeding actually allows for the defendant/appellant to receive a very in depth review of his/her case by research attorneys who have ‘seen it all’ and appellate counsel acts ethically and maintains his/her credibility with the court.”

Klein’s View

Former Los Angeles Superior Court Judge Brett Klein, who had served as a research attorney for this district’s Court of Appeal, said:

“The warning footnote implies that appellant should have filed a Wende brief. Has the Court ever received a Wende brief from retained counsel?”

He further analyzed the footnote, which reads, in its entirety:

“The appeal is frivolous. (See In re Marriage of Flaherty (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 precedent precluding an appellate court from “second guessing” the lawful exercise of sentencing discretion.  “

Klein said:

“The footnote cites Laff (not an appeal, and not a sanctions case). Footnote 16 in Laff cites Gottlieb (not an appeal) and Finnie (a civil appeal). If there is no published California case imposing or affirming sanctions for a frivolous appeal, why not just say so?”

The defendant was represented by Alan Eisner and Dmitry Gorin of Eisner Gorin. Neither responded to a request for comment, but a letter of advice to Eisner from attorney Ronald S. Smith was supplied, with their consent, by Smith.

In it, Smith said:

“I have a lot of respect for the justices in Division Six of the Second Appellate District. I note however, the absence of Presiding Justice Arthur L. Gilbert, from the opinion and personally doubt that he would sign his name to footnote 1.”

(It was signed by Justices Steven Z. Perren and Martin T. Tangeman.)

Smith counseled:

“As I informed you when we talked on the phone, the decision in People v. Wende (1979) 25 Cal.3d 436, does not apply to retained counsel. People v. Placencia (1992) 9 Cal.App.4th 422.) Had you believed that no arguable issues can be presented you would have been obligated to discuss that conclusion with Mr. Sperling and either obtain permission to dismiss the appeal or move to withdraw from the case.

“However, both you and your partner are certified criminal law specialists, and I agree with you both that Mr. Sperling did in fact have arguable issues to raise on appeal.

“In fact, apparently the Court of Appeal when it certified the case for publication also apparently thought there was some significant legal issue of continuing public interest worthy of discussion. (CRC 8.1105 (c)6.)”

The case is People v. Sperling. 17 S.O.S. 2980.


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