Error and/or relief
The court erred by imposing consecutive terms on counts 1 through 3 because the underlying offenses did not occur on separate occasions under Penal Code section 667.6(d), and the court did not make findings on whether it was exercising its discretion to impose a consecutive sentence. We reverse and remand for resentencing.
First Holding:
Section 669(a) provides that when a person is convicted of two or more crimes, the trial court must determine whether the terms of imprisonment shall run concurrently or consecutively. For certain sex offenses the Penal Code establishes alternative sentencing frameworks, including section 667.6.
Authority:
People v. Catarino (2023) 14 Cal.5th 748, 752
Second Holding:
Under section 667.6(c), a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. Section 667.6(d)(1) provides a full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions. Although section 269 is not listed in section 667.6(e), section 269(c) provides that the court shall impose a consecutive sentence for each offense that results in a conviction on this section if the crimes involve the same victim on separate occasions as defined in section 667.6(d).
Authority:
PEN 667.6(c)
PEN 667.6(d)
PEN 269
Third Holding:
The One Strike law in section 667.61 provides an alternative sentencing scheme for certain forcible sex offenses and mandates an indeterminate sentence of 15 or 25 years to life in prison when the jury has convicted the defendant of a specified felony sex crime and has also found certain factual allegations to be true.
Authority:
People v. Carbajal (2013) 56 Cal.4th 521, 534
Fourth Holding:
In determining whether crimes against a single victim were committed on separate occasions under section 667.6(d), the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon the defendant’s actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned the opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.
Further, a finding that a defendant committed sex crimes on separate occasions does not require there be a break of any specific duration or any change in physical location. In applying this standard, courts have held the offenses of placing a finger in the victim’s private area, kissing her private area and then placing his private part in her private area were but a single occasion. In contrast, where the offenses are interrupted by the defendant’s nonsexual activity, courts have found they occur on a separate occasion.
Authority:
PEN 667.6(d)(2)
People v. Jones (2001) 25 Cal.4th 98, 104
People v. King (2010) 183 Cal.App.4th 1281, 1325
People v. Dearborne (2019) 34 Cal.App.5th 250, 265-266
People v. Corona (1988) 206 Cal.App.3d 13, 15-16, 17-18
Fifth Holding:
Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. A court that is unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record. In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.
Authority:
People v. Salazar (2023) 15 Cal.5th 416, 419, 424
People v. Gutierrez (2014) 58 Cal.4th 1354, 1391
Sixth Holding:
The trial court was aware of its discretion. The general rule is that a trial court is presumed to have been aware of and followed the applicable law.
Authority:
People v. Shiga (2016) 6 Cal.App.5th 22, 40
People v. Brown (2007) 147 Cal.App.4th 1213, 1229
Seventh Holding:
When a trial court imposes consecutive sentences based on a finding under section 667.6(d), we may reverse only if there is no substantial evidence that the offenses were committed on separate occasions, that is, only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior.
Authority:
People v. King (2010) 183 Cal.App.4th 1281, 1325
People v. Garza (2003) 107 Cal.App.4th 1081, 1092
Eighth Holding:
Regardless of whether section 667.6(c), applies to sentencing for a one strike offense under section 667.61 (which is not clear), under section 669, a trial court has discretion to impose concurrent or consecutive sentences when a defendant is convicted of multiple crimes with indeterminate sentences.
Authority:
PEN 669(a)
People v. Midell (2025) 113 Cal.App.5th 1060, 1085
People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262
Ninth Holding:
It is well settled that in making sentencing choices pursuant to section 667.6(c), the trial court must state a reason for imposing a consecutive sentence in deciding whether to impose a consecutive or concurrent sentence.
Authority:
People v. Osband (1996) 13 Cal.4th 622, 729