Consecutive Sentence for Sex Offenses
Category > Consecutive Sentence for Sex Offenses
Updated 2/3/2024Imposition of mandatory consecutive terms for the sex offenses based on the court’s finding of separate occasions violated the Sixth Amendment.Defendant argued the trial court infringed his right to a jury trial when, as mandated by Penal Code section 667.6(d) it imposed full, separate and consecutive terms on all 22 counts based on a fact found not by the jury, but rather, the judge—namely, that he committed the crimes on separate occasions. Insofar as the provision mandated full consecutive terms, it increased the mandatory minimum sentence based on judicial factfinding, which violated the Sixth Amendment as determined in Alleyne v. U.S. (2013) 570 U.S. 99.id: 27680
The trial court failed to recognize it had discretion to impose concurrent sentences where there was no significant break in time between the rape and oral copulation.The evidence did not reveal any significant break between defendant forcing the victim to orally copulate him and then proceeding to rape her. The sentencing court erred by finding consecutive sentences were required. The matter was remanded to allow the court to consider concurrent sentences.id: 26149
The trial court erred by imposing consecutive sentences for three sex acts committed against a single victim on one occasion. Defendant was convicted of committing three sex crimes against a single victim during August 25, 2016a short and continuous time period in a single location, the bedroom of her house. The trial court erred by imposing consecutive sentences for the three offenses.id: 24875
The trial court erred by imposing a full consecutive term for a sex offense committed against a separate victim notwithstanding the stated intent in Jessica’s Law.Penal Code section 667.6, subd.(c) expressly provides for a full and consecutive term for each violation of a violent sex offense listed in subdivision (e), but only if the crimes involve the same victim on the same occasion. Notwithstanding the plain meaning of the statute, the trial court imposed a full consecutive term for a crime committed against a separate victim. The prosecutor argued that giving the provision its literal meaning would conflict with the electorate’s stated intent in Jessica’s Law to increase punishment for sex offenders. However, because the crimes did not involve the same victim, the trial court erred by imposing a full consecutive term, and this result did not constitute an absurd consequence.id: 21302
The trial court erred in imposing determinate terms due to the presence of the One Strike law qualifying circumstance.Defendant was convicted of ten counts of forcible lewd acts on a minor (counts 2-11), along with finding of a prior conviction which subjected him to the provisions of the one strike law. The trial court sentenced him to 25 years-to-life on count 2 under Penal Code section 667.71, but imposed 16 year determinate terms for the remaining nine counts (the eight year upper term doubled under the three strike law). However, because the section 667.61 subd.(f) qualifying offense was present, the trial court was required to impose consecutive 25 years-to-life sentences on counts 3-11.id: 18478
Failure to explain the full consecutive sentence for the rape under section 667.6(C) required resentencing.The lack of a separate statement of reasons for imposing a separate full consecutive sentence pursuant to Penal Code section 667.6(c), on the rape count, required resentencing.id: 14040
More punitive provisions of section 667.6, subdivision (C) requires an additional statement of reasons.The trial court recognized that it was making a separate and additional sentencing choice when it stated that it was sentencing under Penal Code section 667.6, subdivision (c). The court's error in failing to explain why it chose the more punitive provisions of subdivision (c) required remand for resentencing.id: 14044
Consecutive sentence provision does not apply to attempted crimes.Defendant was convicted of multiple sex crimes. The trial court improperly imposed a full-term consecutive sentence pursuant to Penal Code section 667.6, subdivision (c) for attempted rape since attempted crimes are not included in the ambit of the statute.id: 14035
Court erred in incorporating the probation report by reference instead of explaining the reasons for the consecutive sentences following the child molest convictions.Defendant was convicted of multiple counts of child molest. In imposing consecutive sentences the trial court failed to properly explain the basis for its sentencing choice and erroneously incorporated the probation report by reference. Certain of the factors listed in the probation report (i.e., young victims) constituted elements of the offense and were therefore improper sentencing considerations. In another situation, the court's blanket incorporation resulted in the improper use of defendant's prior rape conviction both to enhance and to impose an aggravated term. To avoid such dual was the court had to explicitly exclude the prior from consideration as an aggravating factor.id: 14043
Full consecutive sentence was improper for a digital penetration conviction absent a showing of force.Defendant was convicted of unlawful digital penetration of a minor pursuant to Penal Code section 289, subdivision (j). The full, separate and consecutive eight year term pursuant to Penal Code section 667.6, subdivision (c) was improperly imposed. The harsher sentencing provisions of subdivision (c) can only be applied to a conviction charged under section 289 when the fact finder determines the penetration of the genital or anal opening was accomplished against the victim's will by coercive means.id: 14041
The consecutive sentence following conviction of kidnapping and forcible oral copulation violated section 654 where defendant had but one criminal objective.Defendant seized the victim on the street and told her that he was going to take her to her residence where he would perform an act of oral copulation. Defendant performed the threatened act and then fell asleep on the victim's bed. He was convicted of kidnapping and forcible oral copulation with his sentence to run consecutively pursuant to Penal Code section 667.6, subd. (c). Because defendant had but one intent and objective - to commit an act of oral copulation - the consecutive sentence violated the prohibition against multiple punishment under section 654. The consecutive sentence provision of section 667.6, subd. (c) does not create an exception to section 654.id: 13773
Court erred in imposing consecutive sentences for the rape and oral copulation under section 667.6, subdivision (d) where there was no finding of separate occasions.The trial court erred in imposing full term consecutive sentences for forcible rape and forcible oral copulation under the mandatory sentencing scheme of Penal Code section 667.6, subdivision (d). Nothing in the record indicated any appreciable interval between the two acts. After the rape, defendant simply flipped the victim over and orally copulated her. The assault was continuous and that defendant had to change positions in order to orally copulate the victim did not alter the result. However, the consecutive sentences were proper under section 667.6, subdivision (c) which does not require a finding of separate occasions and provides for discretionary rather than mandatory consecutive sentencing.id: 14038
Court erred in failing to separately state reasons for imposing a full and consecutive sentence pursuant to section 667.6, subdivision (c).Defendant was convicted of two counts of forcible oral copulation against his daughter. While the court has discretion to impose a full consecutive term under Penal Code section 667.6, subdivision (c), the court should explain choosing consecutive rather than concurrent and full rather than subordinate, though the same reason may justify both choices. Here, the court gave a reason only for a consecutive term,but not a full term. The error required remand for resentencing.id: 14042
Trial court erred in not adequately explaining its reasons for imposing mandatory full consecutive terms on the sex offenses.Defendant was convicted of multiple sex offenses. He argued the court erred in imposing mandatory full consecutive terms for the offenses under Penal Code section 667.6, subdivision (d). He claimed some of the sex acts could make up four separate occasions. If so, sentencing under the provision was correct. However, he argued not all of the sex acts were committed on separate occasions and the mandatory provisions of section 667.6, subdivision (d) did not apply across the board. The case was remanded and if the court decides to resentence under subdivision (d) it must give a factual explanation supporting its finding of separate occasions for each count. If the court decides to punish under section 667.6, subdivision (c), and impose full, separate and consecutive terms for the sex counts that did not occur on separate occasions it must also provide a statement of reasons for that sentencing choice.id: 14045
The trial court erred by concluding it lacked discretion to impose concurrent subordinate terms for the non-forcible lewd acts.The trial court imposed indeterminate terms of 15 years-to-life for counts 1 through 5 under Penal Code section 667.61, subd.(b), and then imposed consecutive 15 years-to-life terms for counts 9 and 11 as the crimes involved separate incidents. However, each count involved a conviction of a non-forcible lewd act under section 288, subd.(a), rather than a violent sex offense defined by section 667.6, subd.(d) and rule 4.426. Because the trial court erroneously believed it lacked discretion to impose concurrent terms, the matter was remanded for re-sentencing.id: 19039
Updated 2/1/2024The trial court had discretion to impose concurrent life terms under the one strike law for a defendant convicted of continuous sexual abuse of two family members.Defendant was convicted of two counts of continuous sexual abuse of a child—one for each of his step-granddaughters, and the trial court sentenced him to two consecutive life terms under the one strike law. However, the court had discretion under Penal Code section 667.61, subds. (c) and (i) to impose concurrent terms. The matter was remanded to allow the trial court to exercise that discretion.id: 27941
The trial court’s comments, taken in context, show that it understood it could impose concurrent sentences for the multiple counts of sexual penetration of a child.Defendant was convicted of multiple counts of sexual penetration with a child younger than 10. He argued the trial court’s comments showed it had an erronesous belief that it lacked discretion to impose concurrent sentences. The court said it lacked discretion to impose probation and the mandatory sentence for each count was 15 years-to-life. The sentencing briefs for both sides emphasized the court had discretion to impose concurrent sentences, and the court noted it had read the briefs. In context, the court’s statement meant that having made the decision to impose consecutive sentences, it had no discretion other than to impose the term of 120 years-to-life.id: 25788
The court did not err by imposing consecutive terms where each of the four sex offenses was included in section 667.6, subd.(e).Defendant argued that Penal Code section 667.6 disallows consecutive sentences for offenses against the same victim on separate occasions. However, each of defendant four offenses was included in section 667.6, subd.(e). Consequently, section 667.6 applies to defendant’s conviction of section 269, thus requiring mandatory consecutive terms for each of the four offenses. id: 22648
The standard for finding “separate occasions” for purposes of the mandatory consecutive sentence provision is not unconstitutionally vague. Defendant was convicted of three counts of rape and received consecutive sentences under Penal Code section 667.6, subd.(d). He argued the legal standard for imposing full consecutive sentences under that provision where the sex offenses occur on “separate offenses” is unconstitutionally vague. However, it is not difficult to distinguish between a situation where a perpetrator engages in a continuous course of conduct involving multiple sex offenses with no break in between and one in which the individual offenses are separated by some other activity, either of the defendant or another, that interrupts the assault and allows the perpetrator to reflect on what he is doing.id: 22745
After recognizing it had discretion to impose concurrent terms for the sex offender, the imposition of consecutive terms was proper in light of the victim’s vulnerability, defendant’s late expression of remorse and prior offense.Defendant was convicted of rape and a forcible lewd act against a child. He argued the trial court abused its discretion by imposing a full consecutive sentence under Penal Code section 667.6, subd.(c) because it failed to give separate reasons for sentencing consecutively and for imposing a full consecutive sentence. However, that issue was forfeited due to the failure to make that objection in the trial court. Moreover, the reasons given by the court for imposing the consecutive term were proper and adequate. The reference to the victim’s youth related to vulnerability and abuse of trust. The defendant’s postverdict expression of remorse and the reference to a prior conviction were also proper.id: 20826
The sentencing court did not err in concluding defendant’s terms for aggravated sexual assault had to be imposed consecutively under section 667.6, subd.(d). The trial court did not err in concluding defendant’s terms for the two Penal Code section 269 aggravated assaults had to be run consecutively to each other under section 667.6, subd.(d), even though section 269 was not amended until after he committed his crimes to also include the mandatory consecutive term provision of section 667.6, subd.(d). id: 20341
The trial court properly imposed consecutive sentences under section 667.6, subd.(d) for the forcible oral copulation, digital penetration and rape where defendant had time to reflect between the various acts.The trial court could reasonably have found the forcible oral copulation, rape and forced digital penetration occurred on separate occasions for purposes of imposing consecutive sentences under Penal Code section 667.6, subd.(d). After the forced oral copulation, defendant let go of the victim's neck, ordered her to strip, punched her in the eye and put a gun to her head as he also stripped. This series of events allowed him to reflect on his actions and stop his sexual assault, but he continued. He had a similar opportunity to reflect between the digital penetration and the rape. During this interval he played with the victim's chest, put his gun on the back seat, pulled the victim's legs around his shoulders, and forced his penis inside her vagina.id: 17280
Whether multiple sex offenses against a victim occurred on separate occasions for purposes of consecutive sentences is not an element of the crime and need not be proven beyond a reasonable doubt or with the jury's input.The trial court is empowered to make the determination whether multiple sex offenses occurred on separate occasions for purposes of imposing full consecutive terms. Defendant argued he had a due process right to have the separate occasions determination made by proof beyond a reasonable doubt. However, the facts setting the maximum term of a sentence and the trial court's power to impose that sentence are not elements of the crime for purposes of federal constitutional law. Moreover, the mandatory sentence does not constitute an increase in the maximum possible sentence and does not require that the finding be made beyond a reasonable doubt. Finally, since the reasonable doubt standard is not implicated, defendant does not have the right to have a jury decide the issue.id: 17286
Sex offenses were committed on separate occasions for purposes of the consecutive sentence provision where defendant had time to reflect between acts with the victim in his parked car.The trial court could reasonably have decided the forcible oral copulation, rape and forcible digital penetration occurred on separate occasions for purposes of Penal Code section 667.6, subd.(d). After defendant forced the victim to orally copulate him, he let go of her neck ordered her to strip, punched her in the eye, put his gun to her head, and stripped along with her. The sequence of events afforded defendant ample opportunity to reflect on his actions and stop the sexual assault, but he nevertheless resumed it. Thus, the first rape was committed on a separate occasion from the forcible oral copulation. Similarly, he had adequate opportunity to reflect upon his actions between the digital penetration and the commission of the first rape. During that time, he played with the victim's chest, put his gun on the back seat, pulled the victims' legs around his shoulders and forced his penis inside her vagina.id: 17138
Court properly imposed full term enhancements under section 12022.53, subd.(b) for the sex offenses as required under section 1170.1, subd.(h).Defendant received a 25 years-to-life sentence for the forcible oral copulation conviction in count two. On counts 3 (forcible oral copulation), 7 (rape) and 15 (forced digital penetration) the court imposed consecutive determinate terms of eight years plus 10 years for the Penal Code section 12022.53, subd.(b) firearm use enhancements. In People v. Moody (2002) 96 Cal.App.4th 987, the court found the trial court could only impose one-third of the section 12022.53, subd.(b) enhancement on a consecutive, subordinate term imposed for attempted robbery. However, the crimes at issue, unlike attempted robbery, are subject to section 1170.1, subd.(h), which provides for full term enhancements.id: 17139
A conviction under Penal Code section 220 is not a prerequisite to the consecutive sentencing provisions of section 667.6, subd.(c).The 1988 amendment to Penal Code section 667.6, subd.(c) allows the inclusion of assault with the intent to commit a sex offense under section 220. It does not require a conviction under section 220 as a prerequisite to the application of that scheme. The trial court properly imposed consecutive sentences under section 667.6, subd.(c).id: 16244
A defendant may be sentenced to consecutive terms under section 667.6, subdivision (d) even though he had not suffered a previous violent sex crime conviction, as long as the other requirements are satisfied.Defendant was convicted of three sex offenses. The trial court found the offenses were committed on separate occasions. Defendant was sentenced to consecutive terms under Penal Code section 667.6, subdivision (d). He argued the sentence was improper because he had not suffered a previous conviction for violating section 220. The 1988 amendment refers to section 220. However, in adopting that amendment, the legislature sought to include a violation of section 220 within the ambit of section 667.6, not to require a conviction under section 220 as a prerequisite to application of that scheme.id: 16245
Court did not err in ordering forcible sodomy terms to run consecutively under section 667.6, subd.(d) which applies to multiple offenses.Defendant was convicted of two counts of forcible sodomy on a minor who was more than ten years younger under Penal Code section 269, subd.(a)(3). He argued the court erred by concluding as a matter of law that it was required to sentence him to serve the terms for the sodomy counts consecutively pursuant to section 667.6, subd.(d) which provides for aggravated terms for multiple offense or multiple victims. Defendant was incorrect. Section 667.6 applies to section 269 convictions. Contrary to defendant's claim, section 269 does not provide an alternative sentencing scheme. The two statutes serve different objectives and are cumulative, not alternative, to each other.id: 16246
Violent sex offenses may not be used as components of a term calculated under Penal Code section 1170.1, either as a principal term or as a subordinate term.Defendant was convicted of two counts of lewd acts under Penal Code section 288, subdivision (a) which are not considered violent sex offenses, as well as other counts of rape in concert with a foreign object, and forcible rape in concert which are violent sex offenses. When a defendant is convicted of both violent and nonviolent sex offenses, the sentences for the violent sex offenses must be calculated separately and then added to the terms for the other offenses as calculated under the more lenient provisions of Penal Code section 1170.1. The trial court erred by making both non-violent sex offenses subordinate counts and thereby effectively merging one of the section 667.6 offenses into a section 1170.1 term.id: 16247
Mandatory consecutive sentencing provision of section 667.6, subdivision (d) applies to indeterminate sentences imposed under the one strike law.The trial court sentenced defendant to two terms of 25 years to life for the forcible, oral copulation of Jane Doe 1 and Jane Doe 2. However, the trial court erroneously concluded the mandatory terms of Penal Code section 667.6, subdivision (d) did not apply to indeterminate sentencing under section 667.61 (the one strike law) and imposed concurrent terms. The judgment was modified to provide consecutive life sentences.id: 15375
Mandatory consecutive sentence provision was properly applied to defendant who raped the victim after aiding another in doing the same.Defendant pled guilty to two counts of forcible rape following evidence that he raped the victim after aiding another man in raping the same victim. He argued the court erred in imposing consecutive sentences under Penal Code section 667.6, subd.(d) because the rapes did not occur on separate occasions and because he did not personally commit one of the rapes. However, each act of rape perpetrated by a different assailant is a crime committed on a separate occasion for the purpose of imposing the mandatory sentence. Moreover, defendant need not have personally committed the rape to be subject to the mandatory consecutive sentence provision.id: 15098
Consecutive sentences were proper for sex offenses where the evidence established the offenses were committed under threats of great bodily injury.Defendant argued the trial court erred in imposing full consecutive sentences for the sex offenses pursuant to Penal Code section 667.6, subdivision (d) since the provision required that such offenses be committed by threat of great bodily injury and the jury was instructed under an amended provision that the offense be committed in fear of unlawful bodily injury. The error was not prejudicial where the evidence established a threat of great bodily injury as defendant hit the victim in the stomach, threatened to whip her with a strap or belt and threatened to kill her.id: 14036
Court did not err in imposing consecutive sentences for sex offenses against one victim where the evidence supported the finding that defendant had an opportunity to reflect prior to each act.Defendant was convicted of five sex offenses. He argued the trial court improperly sentenced him to consecutive six-year terms under Penal Code section 667.6, subdivision (d) because the evidence showed he never ceased his sexually assaultive behavior but merely changed positions and locations and continuously restrained the victim. However, the evidence supported the trial court's finding that as to each separate offense the defendant had a reasonable opportunity to reflect upon his actions and nevertheless resumed his sexually assaultive behavior.id: 14037
Defendants need not personally commit an enumerated offense listed in section 667, subdivision (d) in order to be subject to mandatory full term consecutive sentencing.Defendants participated in numerous sexual assaults. They argued that because they did not personally commit all of the sexual assaults, they are not subject to the mandatory full term consecutive sentencing under Penal Code section 667.6, subdivision (d). However, there is no requirement that defendants personally commit the enumerated sexual offenses in section 667.6, subdivision (d) in order for the court to be required to impose full term consecutive sentences.id: 14039
Full-term consecutive sentence under section 667.6, subdivision (c) renders inapplicable section 654's proscription against multiple punishment.The Legislature's authorization of consecutive full-term sentences for enumerated sex offenses, whether or not the crimes were committed during a single transaction, creates an exception to Penal Code section 654's prohibition against multiple punishment for separate acts committed during an indivisible course of conduct.id: 13746
Consecutive sentences are not improper for certain sex crimes committed during a single transaction.Defendant was convicted of several counts of kidnapping and child molestation. He argued the court erred in not staying the consecutive sentences imposed with respect to the kidnapping of two victims. He claimed the acts of walking the victims from their respective school routes to the locations where the rapes and attempted rape occurred had only one criminal objective, the rapes and attempted rape. However, in <i>People v. Hicks</i> (1993) 6 Cal.4th 784, the California Supreme Court concluded that Penal Code section 667.6, subdivision (c), created an exception to Penal Code section 654 so as to permit full term consecutive sentences for enumerated offenses constituting separate acts committed during an indivisible transaction.id: 13729
Defendant properly received consecutive sentences for each of eight counts of rape where his penis repeatedly came out of the victim's vagina and he repenetrated during a single incident.The record established that defendant's penis kept coming out of the victim's vagina because she was moving and defendant was hurting her. He put his penis back inside her vagina eight or nine times and threatened to kill her if she did not stop moving. Defendant argued he should have been punished for only one count of rape rather than eight counts. However, defendant's penetrations were clearly volitional, criminal and occasioned by separate acts of force and separately punishable by consecutive sentences.id: 9944
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
The case of the day summarizes a current case and is viewed by lawyers and judges around the state every day.
Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245