Sperling

*1096 In this extremely aggravated sexual assault case, appellant asks us to reverse discretionary sentencing choices. We will not do *1097 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.

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).) 1 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…

"Wise adjudication has its own time for ripening." ( *580 Maryland v. Baltimore Radio Show, Inc. (1950) 338 U.S. 912 , 918, 70 S.Ct. 252 , 94 L.Ed. 562 , 566.) We do not rule or opine that the instant appeal is frivolous. The appeal is easily affirmed by the application of long standing rules. But in my view, the appeal raises the hypothetical issue of the proper role of retained counsel in a criminal appeal. What should retained counsel in a criminal appeal do when he or she examines the record and determines that the appeal is not only without merit but that "no reasonable attorney could have thought it meritorious ...." ( In re Marriage of Flaherty (1982) 31 Cal.3d 637 , 650, 183 Cal.Rptr. 508 , 646 P.2d 179 .) Such an appeal is "frivolous."

There is a statutory right to appeal and counsel is duty bound to represent his or her client. At the same time, counsel is an officer of the court and is duty bound not to maintain or continue a "frivolous" proceeding. The answer was suggested a quarter of a century ago by Justice Sims speaking for the Third District Court of Appeal: Privately retained counsel has the "possibility of securing the client's permission to dismiss the appeal,…