California, United States of America
The following excerpt is from People v. Walker, C069309 (Cal. App. 2014):
Section 667.61, subdivision (i), provides that when the crimes "involve the same victim on separate occasions as defined in subdivision (d) of section 667.6," consecutive sentences are mandated. Section 667.6, subdivision (d), defines "separate occasions" as follows: "In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether . . . the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions." (Italics added.) Consistent with sections 667.61, subdivision (i) and 667.6, subdivision (d), rule 4.426(a)(2) provides, "When a defendant has been convicted of multiple violent sex offenses as defined in section 667.6, the sentencing judge must determine whether the crimes involved separate victims or the same victim on separate occasions. [] . . . [] If the crimes were committed against a single victim, the sentencing judge must determine whether the crimes were committed on separate occasions. In determining whether there were separate occasions, the sentencing judge must consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect on his or her actions and nevertheless resumed sexually assaultive behavior. A full, separate, and consecutive term must be imposed for each violent sex offense committed on a separate occasion under section 667.6(d)." The standard of proof regarding a finding of separate occasions is proof by a preponderance of the evidence. (People v. Groves (2003) 107 Cal.App.4th 1227, 1230, 1231-1232 (Groves).) Thus, when the trial court finds the sex offenses occurred on separate occasions, imposition of
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