Unreported / Non-Citable
Background
A jury convicted Kumphak Tep of multiple sex crimes against Jane Doe, his stepdaughter, including sodomy by use of force on a victim under the age of 14 (Pen. Code, § 286, subd. (c)(2)(B); count 5) and forcible oral copulation of a victim under the age of 14 (§ 287(c)(2)(B); count 7). The Superior Court of San Bernardino County sentenced Tep to a cumulative prison term of 34 years plus 60 years to life, including full, consecutive sentences for counts 5 and 7 under Penal Code section 667.6(d).
Tep began sexually abusing Jane when she was eight, forcing her to orally copulate him at least weekly; after she turned 11 he forced her to orally copulate him in the shower while touching her vagina and breasts. Once in 2023, when Jane was 13, Tep told her to bend over the living room couch and forced his penis into her buttocks. It hurt, so she told him to stop; he then told her to turn around, get on her knees, and orally copulate him, which she did. At trial, Tep denied having any sexual contact with Jane.
At the sentencing hearing, the prosecutor argued counts 5 and 7 occurred on separate occasions, while defense counsel argued they were a continuous act on a single occasion. The trial court found separate occasions, reasoning that Tep stopped the sodomy—giving him an opportunity to reflect—and then directed Jane to change position and perform a different sexual act. It consecutively sentenced Tep to the upper term of 13 years in prison for count 5 and 12 years for count 7.
The Court’s Holding
The Court of Appeal affirmed. Under section 667.6(d)(1), a full, separate, and consecutive term must be imposed for each qualifying offense if the crimes involve separate victims or the same victim on separate occasions, and both offenses here qualify. Under this broad standard, courts have not required a break of any specific duration or any change in physical location (People v. Jones (2001) 25 Cal.4th 98, 104). Once a trial judge has found separate occasions, reversal is proper 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 (People v. Garza (2003) 107 Cal.App.4th 1081, 1092).
Substantial evidence in the form of Jane's testimony supported the finding; the testimony of one witness, even the victim, can suffice (People v. Cortes (1999) 71 Cal.App.4th 62, 71, 73-74). Her testimony showed there was time between the sodomy and the oral copulation during which Tep gave her affirmative instructions and she had to change her position, giving him an opportunity to reflect and decide to go forward with a separate sex act rather than stop the assault altogether.
The court was unpersuaded by Tep's argument that changing positions and sex acts was not something new and contemplative, and it rejected his claim that the very short interval was determinative, citing People v. King (2010) 183 Cal.App.4th 1281, where a pause between acts still afforded sufficient opportunity to reflect. Under the deferential standard of review, the court could not conclude that no reasonable trier of fact would find, as the trial court did, that the change in sexual act allowed Tep a reasonable opportunity to reflect. The trial court therefore did not err in sentencing him under section 667.6(d), and the judgment was affirmed.
Key Takeaways
- Full, consecutive sentences under Penal Code section 667.6(d) are proper when the defendant had a reasonable opportunity to reflect between separate sex acts against the same victim, even if the time between acts is very short.
- A separate-occasions finding will be upheld if any reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming assaultive behavior.
- Stopping one sex act, giving the victim affirmative instructions to change positions, and then committing a different sex act provides sufficient opportunity for reflection to support consecutive sentencing.
- The testimony of a single witness, even the victim of the crime, can constitute substantial evidence supporting the separate-occasions finding.
Why It Matters
This unpublished decision reinforces the broad standard for determining when sex offenses occur on separate occasions under Penal Code section 667.6(d): no specific duration of break or change in physical location is required, and a defendant's pause between different types of sex acts, coupled with affirmative directions to the victim to change positions, provides sufficient opportunity for reflection to justify full, consecutive sentences.