1 

Filed 2/11/14 P. v. Caldera CA1/3 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION THREE 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

MANUEL ANDRES CALDERA, 

 Defendant and Appellant. 

 A133906 

 (Contra Costa County 

 Super. Ct. No. 1004720) 

 Manuel Caldera was found competent to stand trial and convicted of multiple 

forcible sex offenses against five victims. He contends the trial court committed 

reversible error when it allowed the prosecutor to question an expert psychiatric witness 

in front of the jury about the consequences of an incompetency verdict and later refused 

to suspend the proceedings for a second competency evaluation. He also contends the 

court erred when it refused to sever the counts concerning one of his victims for a 

separate trial, and when it imposed consecutive sentences on all counts. None of 

defendant’s contentions are meritorious, so we affirm. 

DISCUSSION 

 In light of the nature of the issues raised in this appeal, we will address the facts 

and evidence as necessary in conjunction with the specific issues to which they pertain. 
2 

I. Competency 

 Defendant raises two distinct issues concerning his competence to stand trial. He 

contends that, during his competency trial, the court erroneously permitted the prosecutor 

to cross-examine an expert psychiatric witness about the possible legal consequences of a 

finding that he was mentally incompetent to stand trial. He asserts the challenged 

questions suggested to the jury that if he were found incompetent he could evade 

punishment for his crimes, and therefore were unduly prejudicial. Defendant also argues 

the court erred when it later refused to hold a second competency hearing after he 

threatened, and allegedly attempted, to kill himself on the eve of trial. Neither contention 

is persuasive. 

A. Cross-Examination of Dr. Solomon 

i. Background

 The court appointed two psychologists to evaluate defendant after his attorney 

declared a doubt about his competency. Psychologist Allan Solomon interviewed 

defendant for about 45 minutes. He neither reviewed defendant’s psychiatric records nor 

administered any psychological tests, and could not recall at trial whether he read 

defendant’s police reports. Dr. Solomon concluded defendant was not competent to stand 

trial, “does not understand the seriousness of the current charges, and cannot assist 

counsel in forming an adequate defense as he firmly denies any memory of the preceding 

events. . . . . Based on the current examination, the defendant is judged to be a danger to 

himself and to others. The defendant is judged most likely to be suffering from a 

psychotic disorder, possibly Schizoaffective Schizophrenia, and will require long term 

treatment.” 

Psychologist Paul Good also evaluated defendant. Prior to interviewing defendant 

he spoke with the prosecution and defense counsel and reviewed the order authorizing the 

evaluation, the police reports, the information, and Dr. Solomon’s report. He then 

interviewed defendant and administered a battery of psychological tests. 
3 

 Dr. Good’s observations and conclusions diverged markedly from Dr. Solomon’s. 

He observed that defendant claimed to have continual suicidal thoughts, auditory 

hallucinations, and no memory of his alleged crimes, yet he was able to provide a 

detailed personal history, his long-term memory was intact, and his thought process 

seemed concrete. The interview “was notable in terms of [defendant’s] inconsistency. 

He gave a reasonably coherent social history, revealing a capacity to recall some 

memories as a child with his family and at school, memories of violent experiences 

growing up in Richmond, memories of dropping out of high school, of working with his 

father and for a company called Bay Area Tree Care, memories of two serious girlfriends, 

recollections of his brother’s death due to Hepatitis, his own suicide gesture, and one or 

two psychiatric hospitalizations. He even recalled that he had been convicted and 

incarcerated for a DUI at 21 years of age, and then sent to DUI school. How is it possible 

for this man to remember so much of his personal history, including recalling his DUI 

offense, but to have absolutely no recollection of the numerous crimes for which he has 

been charged, and which stretch out over three years?” Dr. Good also observed that 

defendant was able to engage in goal-directed behavior evidenced by his lying to police 

and invoking his Miranda rights when arrested. 

 On the basis of his interview and defendant’s results on six psychological tests, 

Dr. Good concluded defendant was malingering. “Overall, it may be that [defendant] has 

a severe mental illness, but whatever it is, he is now feigning ignorance of the legal 

process and exaggerating his psychotic symptomatology. He is not presenting himself in 

a genuine manner. [¶] Based on these findings, it is my opinion that [defendant] has 

more ability than he projects, and should be considered competent to be adjudicated 

at the present time.” 

Both psychologists testified at the competency trial. On cross-examination, the 

prosecutor asked Dr. Solomon whether there would be “very heavy implications” if an 

incompetent defendant were wrongly found competent and forced to go to trial. Dr. 
4 

Solomon agreed there would be. But, the doctor did not agree with the proposition that 

there were also “potentially serious consequences” if a competent defendant were 

erroneously adjudged incompetent. “I don’t agree with that, no. Because . . . in fact I 

think it’s the other way around. If they are judged incompetent, I think what should 

happen – and I know this doesn’t – what should happen is the person should be, you 

know, placed in some kind of mental health facility where they can be observed for an 

extensive period of time, perhaps try him on medication, and have a much more extensive 

evaluation, and then competence could be established. And that’s, you know, usually 

what happens in that case.” Dr. Solomon did not think the downside of misdiagnosing a 

competent person to be incompetent “is that severe, you know, really. I mean, I think, 

you know, at wors[t] they continue to be evaluated.” Pressed to explain, the doctor said 

there was “very little” downside to a false diagnosis of incompetence. “[I]t could . . . 

delay a court process. That’s unfortunate. But in terms of --- that’s about the only 

downside I see.” 

Dr. Solomon said he was not qualified to say whether there might be other adverse 

consequences of a misdiagnosis. He did not know whether causing a delay in the 

proceedings could be an incentive for a defendant to feign incompetency. He agreed that 

delay might benefit a defendant, but thought that possibility was “very speculative” with 

regard to this case. 

The prosecutor asked Dr. Solomon if he knew what happens if a defendant found 

to be incompetent is not restored to competency after three years. Outside the jury’s 

presence, defense counsel objected that the prosecutor was trying to suggest to the jury 

that defendant could go free after three years if he were found incompetent. The 

prosecutor argued that the question went to Dr. Solomon’s bias. “He said there’s no 

downside for finding someone – there’s very little downside for finding someone 

incompetent who’s not, and so I think that goes to his bias as to create a tendency to err 
5 

on the side of finding incompetency. So I think questioning him as to the consequences 

of what would happen and his familiarity with those, are proper scope.” 

The court agreed that Dr. Solomon’s testimony supported a fair inference of a bias 

toward finding a defendant incompetent “because there’s no downside.” The court 

allowed limited questioning to explore the apparent bias. “I will allow you to ask very 

targeted questions, not open-ended questions, because I don’t want this to be – this case 

to be hijacked into what he thinks, what his opinion is at Napa, and how quickly things 

happen, but if you have very targeted cross-examination questions that go to either his 

bias or lack of understanding of the consequences of the decision he’s making on the one 

hand, or to the defendant’s motive to malinger, you can ask specific questions related to 

those two issues.” 

The prosecutor asked Dr. Solomon whether a defendant might be motivated to 

fake incompetence to delay the criminal proceedings, and elicited his acknowledgment 

that delay might benefit a defendant because witnesses could die or disappear or their 

memories could fade. But, Dr. Solomon replied that “I don’t think we’re talking about 

the facts of this particular case. This is very speculative.” 

The prosecutor then asked Dr. Solomon if he was aware a defendant could be 

placed in a conservatorship or the charges against him could be dropped if he 

successfully feigned incompetency for three years. The doctor said he did not know the 

“letter of the law on that,” but agreed with the prosecutor that this could possibly be an 

incentive to feign incompetence in the “very abstract.” Again, he added that “[i]t just 

seems so unlikely” and “beyond the realm of speculation.” Later, the prosecutor posed a 

final question: “[N]ot going to prison is an incredibly powerful motivation to lie, 

wouldn’t you agree?” Dr. Solomon agreed that it is. 

 Doctor Good testified after Dr. Solomon. He opined that defendant might have a 

mental illness, but that he appeared to be exaggerating his symptoms and was competent 

to stand trial. After brief deliberations, the jury found defendant competent. 
6 

 ii. Analysis 

 Defendant contends the court abused its discretion when it allowed the prosecutor 

to question Dr. Solomon about the consequences should the jury find defendant 

incompetent to stand trial. He argues that these questions were of no or little probative 

value, and were highly prejudicial because they insinuated that defendant could escape 

punishment if he were found incompetent. We will not disturb a trial court’s exercise of 

discretion in balancing probative value against potential prejudice unless it “ ‘exercised 

its discretion in an arbitrary, capricious or patently absurd manner that resulted in a 

manifest miscarriage of justice.’ ” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) 

Here, it did not. 

 The prosecutor’s questions bore directly on Dr. Solomon’s view that, while 

finding an incompetent defendant competent to stand trial carries severe consequences, 

an erroneous finding of incompetence has little downside. Accordingly, the challenged 

questions were highly relevant to exploring the doctor’s apparent bias toward resolving 

questions about competency in favor of finding defendant unfit to stand trial. (See, e.g., 

People v. Zambrano (2007) 41 Cal.4th 1082, 1165, disapproved on another point in 

People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [prosecutor was entitled to expose 

expert witness’s bias through questions exploring his “propensity to advocate for criminal 

defendants even in extreme cases”].) The prosecutor’s questions were also relevant to 

whether Dr. Solomon understood that defendant might have a motive to malinger, a point 

on which he and Dr. Good diverged. Thus, in light of Dr. Solomon’s apparent bias, the 

questions had probative significance. 

Nor were these questions unduly prejudicial. “ ‘Prejudice’ as contemplated by 

section 352 is not so sweeping as to include any evidence the opponent finds 

inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, 

merely because it undermines the opponent's position or shores up that of the proponent. 

The ability to do so is what makes evidence relevant. The code speaks in terms of undue
7 

prejudice. Unless the dangers of undue prejudice, confusion, or time consumption 

‘ “substantially outweigh” ’ the probative value of relevant evidence, a section 352 

objection should fail. [Citation.] ‘ “The ‘prejudice’ referred to in Evidence Code section 

352 applies to evidence which uniquely tends to evoke an emotional bias against the 

defendant as an individual and which has very little effect on the issues. In applying 

section 352, ‘prejudicial’ is not synonymous with ‘damaging.’ ” (Vorse v. Sarasy (1997) 

53 Cal.App.4th 998, 1008.) Here, although the challenged questions were highly relevant 

to the validity of Dr. Solomon’s opinion, the court allowed only limited questions 

targeted to show his bias or his failure to recognize defendant’s motive to malinger. 

Although the questions were quite likely damaging to Dr. Solomon’s credibility, they 

were not unduly prejudicial. 

B. Denial of a Second Competency Evaluation 

 i. Background 

 Four months after the competency verdict, on what was to be the first day of trial, 

defendant moved for a new attorney and then, when the court denied his Faretta1 motion 

as untimely, sought to represent himself. The court commented that defendant was either 

trying to engineer a last-minute delay or, if he had been unaware of his trial date as he 

claimed, he was too impaired to represent himself. Defendant responded to the denial of 

his motions by threatening to hang himself or “slice my vein.” 

 The case was called for jury trial that afternoon. At the time, defendant was being 

evaluated following his suicide threat and an ineffectual suicide attempt. The next 

morning the court stated that defendant was being held in a safety cell as a result of his 

attempts to injure himself. Subpoenas had been served on the jail and on defendant’s 

mental health providers to inquire into defendant’s status. Rather than declare ready for 

                                                            

1 Faretta v. California (1975) 422 U.S. 806.
8 

trial, defense counsel declared a doubt as to defendant’s competence and urged the court 

to suspend the proceedings and appoint an expert to reassess his ability to stand trial. 

 The court reviewed the transcripts of defendant’s Marsden2 and Faretta hearings, 

the jail’s incident reports on defendant’s attempts to injure himself, and his medical 

records from before and after the competence trial. After entertaining arguments from 

both parties, the court denied defendant’s request for a second competence assessment. It 

explained: “[I]n this case we had a hearing, and in looking at the medical records, it’s 

clear that there had been ideations of suicides discussed by the mental health 

professionals prior to his hearing [sic] jury trial where he was found to be competent to 

stand trial. [¶] The issue is whether he’s capable of understanding the nature and purpose 

of the proceedings that he must comprehend his own status and condition in reference to 

the proceedings, and he must be able to assist his attorney in conducting a defense or to 

be able to conduct his own defense in a rational manner. [¶] I don’t see anything that’s 

changed in terms of the evidence before me. There’s been no substantial change or 

evidence of a substantial change. It’s just been his conduct in the last two days since his 

motion for continuance is denied, his motion to have new counsel was denied, his motion 

to represent himself was denied. [¶] I don’t see any evidence of any change. He’s been 

taking the same medications all along. And that’s always a factor, if the medications had 

changed, leading to a substantial change in his condition. I don’t find anything of that 

nature. [¶] Therefore I am . . . going to deny the defense request for another medical 

evaluation or mental evaluation. I’m satisfied that his condition remains the same with 

regard to his ability to be competent to stand trial . . . .” 

 ii. Analysis 

The court is required to suspend criminal proceedings and hold a competency 

hearing if there is substantial evidence a defendant may be incompetent to stand trial. 

                                                            

2

 People v. Marsden (1970) 2 Cal.3d 118. 
9 

(Pen. Code, § 1368; People v. Howard (1992) 1 Cal.4th 1132, 1163; People v. Medina

(1990) 51 Cal.3d 870, 882.) “[E]ven though section 1368 is phrased in terms of whether 

a doubt arises in the mind of the trial judge and is then confirmed by defense counsel . . . 

once the accused has come forward with substantial evidence of incompetence to stand 

trial, due process requires that a full competence hearing be held as a matter of right. 

. . . [¶] ‘Substantial evidence’ has been defined as evidence that raises a reasonable doubt 

concerning the defendant’s competence to stand trial.” (People v. Welch (1999) 

20 Cal.4th 701, 737-738; Howard, supra, at p. 1163.) 

Defendant contests the court’s decision not to hold a second hearing to determine 

whether he remained competent. “When, as here, a competency hearing has already been 

held and the defendant was found to be competent to stand trial, a trial court is not 

required to conduct a second competency hearing unless ‘it “is presented with a 

substantial change of circumstances or with new evidence” ’ that gives rise to a ‘serious 

doubt’ about the validity of the competency finding. [Citation.] More is required than 

just bizarre actions or statements by the defendant to raise a doubt of competency. 

[Citations.] In addition, a reviewing court generally gives great deference to a trial 

court’s decision whether to hold a competency hearing. As we have said: ‘ “An 

appellate court is in no position to appraise a defendant’s conduct in the trial court as 

indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or 

sheer temper.” ’ ” (People v. Marshall (1997) 15 Cal.4th 1, 33, italics added; accord, 

People v. Marks (2003) 31 Cal.4th 197, 220.) We review whether the determination not 

to hold a second competency hearing was supported by substantial evidence. (People v. 

Huggins (2006) 38 Cal.4th 175, 220.) 

 Here, defendant’s contention that the evidence mandated a second competence 

hearing fails for the reasons discussed in People v. Huggins, supra, 38 Cal.4th at 

page 220. There, defense counsel expressed concerns about his client’s competence at 

the start of the penalty phase, several years after the prior competency proceedings. 
10 

(Ibid.) The Supreme Court explained, “Although the fact of the prior competency 

determination did not by itself establish defendant’s competency . . . a second 

competency hearing was required only on a showing of a substantial change of 

circumstances or new evidence casting a serious doubt on the validity of the prior finding 

[citation]. The prior finding was based on a thorough inquiry into defendant’s 

competency, and the evaluations made at that time and the verdict of competency must be 

viewed as a baseline that, absent a preliminary showing of substantially changed 

circumstances, eliminated the need to start the process anew.” (Ibid.) 

 The Supreme Court made this point also in People v. Weaver (2001) 26 Cal.4th 

876, where it wrote: “[D]efendant fails to mention an important fact critically 

undermining his claim: the trial court had already declared a doubt as to defendant’s 

competence at the time of the arraignment, had suspended proceedings, and had 

defendant examined by two psychiatrists. The parties submitted the matter, and the trial 

court found defendant legally competent. ‘Once a defendant has been found competent 

to stand trial, a second competency hearing is required only if the evidence discloses a 

substantial change of circumstances or new evidence is presented casting serious doubt 

on the validity of the prior finding of the defendant’s competence.’ ” (Id. at p. 954.) 

 There was no such evidence here. As support for his request, defendant identifies 

only his suicide threats and attempts to harm himself in jail. But, as the trial court 

observed, this was not a new development. Defendant told Dr. Solomon that a friend 

stopped him from jumping off a freeway overpass about five years earlier, and he had 

been hospitalized for suicidal thoughts “a few times” prior to his arrest. Moreover, 

defendant’s suicide threats and attempts to harm himself did not, without more, indicate 

that he was incapable of understanding the proceedings or assisting in his own defense. 

(See People v. Ramos (2004) 34 Cal.4th 494, 509.) Finally, given Dr. Good’s earlier 

diagnosis of malingering and the suspicious timing of defendant’s suicidal threats and 

behavior immediately after the court denied his Marsden and Faretta motions, the trial 
11 

court could readily credit the prosecutor’s argument that defendant was simply 

“attempting to gain a continuance by any means necessary.” The record supports the 

court’s ruling. 

II. Severance 

Defendant contends the trial court abused its discretion when it denied his motion 

to sever the counts arising from his assault on 16-year-old Doe 3 from those related to his 

other victims. Here too, we disagree. 

 Under Penal Code section 954, “[a]n accusatory pleading may charge . . . two or 

more different offenses of the same class of crimes or offenses, under separate counts, . . . 

provided, that the court in which a case is triable, in the interests of justice and for good 

cause shown, may in its discretion order that the different offenses or counts set forth in 

the accusatory pleading be tried separately or divided into two or more groups and each 

of said groups tried separately.” In this case, the statutory requirements for joinder were 

satisfied because the charges for all of the victims involved kidnapping and sexual 

assault. (See People v. Maury (2003) 30 Cal.4th 342, 395; People v. Bradford (1997) 15 

Cal.4th 1229, 1315.) Therefore, defendant can establish error only upon a showing of 

prejudice so substantial as to require severance when balanced against the state’s strong 

interest in the efficiency of a joint trial. (People v. Vines (2011) 51 Cal.4th 830, 855; 

People v. Arias (1996) 13 Cal.4th 92, 126; see also Frank v. Superior Court (1989) 48 

Cal.3d 632, 639-640 [“[t]rial of the counts together ordinarily avoids the increased 

expenditure of funds and judicial resources which may result if the charges were to be 

tried in two or more separate trials”].) 

“ ‘The determination of prejudice is necessarily dependent on the particular 

circumstances of each individual case, but certain criteria have emerged to provide 

guidance in ruling upon and reviewing a motion to sever trial.’ [Citation.] Refusal to 

sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried 

would not be cross-admissible in separate trials; (2) certain of the charges are unusually 
12 

likely to inflame the jury against the defendant; (3) a ‘weak’ case has been joined with a 

‘strong’ case, or with another ‘weak’ case, so that the ‘spillover’ effect of aggregate 

evidence on several charges might well alter the outcome of some or all of the charges; 

and (4) any one of the charges carries the death penalty or joinder of them turns into a 

capital case.” (People v. Sandoval (1992) 4 Cal.4th 155, 172-173.) 

 But these four criteria are not equally significant. “ ‘[T]he first step in assessing 

whether a combined trial [would have been] prejudicial is to determine whether evidence 

on each of the joined charges would have been admissible . . . in separate trials on the 

others. If so, any inference of prejudice is dispelled.’ ” (People v. Osband (1996) 13 

Cal.4th 622, 667, italics added; see also People v. Mayfield (1997) 14 Cal.4th 668, 721; 

Frank v. Superior Court, supra, 48 Cal.4th at p. 639.) 

 That is the situation here. Indeed, defendant concedes the evidence was at least 

“minimally” cross-admissible under Evidence Code section 1108, 3 which allows the 

prosecution to introduce evidence of prior sex offenses in a criminal action for a present 

sex offense unless it is inadmissible under section 352. His argument, rather, is that if the 

charges were tried separately, evidence of his assault on Doe 3 would have likely been 

excluded under section 352 in an exercise of the court’s discretion because the victim was 

only 16 years old, her family knew and trusted defendant, and, unlike the other victims, 

she had no history of drugs or prostitution. In light of these factors, he asserts, evidence 

of his crimes against Doe 3 would be unduly prejudicial if admitted in a trial of his 

offenses against his other four victims, and, therefore, was not cross-admissible. 

The trial court was unpersuaded. “[T]rying the charges involving the 16 year old 

would be prejudicial against the defendant, but all evidence that’s evidence of a charge is 

                                                            

3

 “(a) In a criminal action in which the defendant is accused of a sexual offense, evidence 

of the defendant’s commission of another sexual offense or offenses is not made 

inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 

352.” (Evid. Code, § 1108.) Unless otherwise noted, further statutory references are to 

the Evidence Code. 
13 

prejudicial. The question is whether the prejudice is the type that is not allowed and 

whether the prejudice is outweighed by—or outweighs the probative value. [¶] In this 

case, I believe the probative value and full measure of all the balance will fall in favor of 

counsel to proceed . . . .” That conclusion was well within its discretion. Doe 3 was 

three months shy of her seventeenth birthday, but she was not much younger than 19-

year-old victim Doe 4, or 22-year-old victim Doe 2. As the prosecution observed, “It is 

not as [though] the defendant raped all adults and then a five year old child, most of his 

victims were young women.” Defendant also argues that Doe 3, the only victim without 

prior involvement in drugs or prostitution, was more credible than his other victims, so 

evidence about his assault on her would have an “improper spillover effect” on the other 

counts. But there was extremely compelling evidence of defendant’s offenses against his 

other victims, including the fact that he was pulled over and arrested in the act of holding 

Doe 4 captive in his truck, and he was linked to the rapes of Does 1, 2, and 5 through 

DNA evidence. In this situation, it defies credulity to posit the jury would not have 

convicted defendant for offenses against those other victims had it not heard Doe 3’s 

testimony about her own ordeal. The court appropriately denied defendant’s severance 

motion. 

III. Consecutive Sentencing 

A. Background 

The jury convicted defendant of three counts of kidnapping for purposes of sexual 

assault, one count of false imprisonment, nine counts of forcible oral copulation, three 

counts of sexual penetration by a foreign object, four counts of forcible rape, two counts 

of forcible sodomy, and three counts of second degree robbery. In addition, the jury 

found true a number of enhancements for weapons, kidnapping, and multiple victims. 

The court sentenced defendant to 521 years to life in prison, including 17 consecutive 

terms of 25 years to life for sexual assaults aggravated pursuant to Penal Code section 

667.61. The court explained its sentencing decision: “Mr. Caldera, I listened to the 
14 

evidence in this matter. This is one of the most horrific cases I’ve heard in my career as a 

judge. The things you’ve done to five separate wom[e]n over a five- to six-year period 

are just abominable. I’ve never sentenced anyone to this much time in prison, but I am 

doing this for you because you should not ever be out on the streets again to harm the 

women of this state and out of this country. [¶] You’re a dangerous person. You stole 

their sense of privacy, their sense of integrity, of being a person who could walk safely 

and do the things they wanted to do in life. And you took that from them. They can 

never get that back. [¶] . . . [¶] Horrific acts. We query the practicality of challenging 

these terms, since even complete vindication of these claims would only reduce 

defendant’s sentence to 396 years to life. But he cannot claim even that Pyrrhic victory. 

The evidence supports the court’s decision to impose consecutive terms for each count, 

so we will not disturb the sentence. 

B. Legal Principles 

Under Penal Code section 667.6, a defendant convicted of multiple sex offenses 

against the same victim on the same occasion must be sentenced to consecutive terms for 

each violation “if the crimes involve separate victims or involve the same victim on 

separate occasions. [¶] 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 or not 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.” (Pen. Code, § 667.6, subds. (d), (e).) 

The Supreme Court analyzed the meaning of “separate occasions” in this context 

in People v. Jones (2001) 25 Cal.4th 98, 104-105. “Under the broad standard established 

by Penal Code section 667.6, subdivision (d), the Courts of Appeal have not required a 
15 

break of any specific duration or any change in physical location. Thus, the Court of 

Appeal herein cited People v. Irvin (1995) 43 Cal.App.4th 1063, 1071 . . . for the 

principle that a finding of ‘separate occasions’ under Penal Code section 667.6 does not 

require a change in location or an obvious break in the perpetrator's behavior: ‘[A] 

forcible violent sexual assault made up of varied types of sex acts committed over time 

against a victim, is not necessarily one sexual encounter.’ Similarly, the Court of Appeal 

in People v. Plaza (1995) 41 Cal.App.4th 377, 385 . . . affirmed the trial court's finding 

that sexual assaults occurred on ‘separate occasions’ although all of the acts took place in 

the victim's apartment, with no break in the defendant's control over the victim. (But see 

People v. Pena (1992) 7 Cal.App.4th 1294, 1316 . . . [defendant's change of positions 

between different sexual acts was insufficient by itself to provide him with a reasonable 

opportunity to reflect upon his actions, ‘especially where the change is accomplished 

within a matter of seconds’]; People v. Corona (1988) 206 Cal.App.3d 13, 18 . . . 

[holding, after the respondent implicitly conceded the point, that the trial court erred in 

imposing consecutive sentences for different sexual acts when there was no cessation of 

sexually assaultive behavior ‘between’ acts].)” 

Our review of the trial court’s finding that a defendant committed offenses on 

separate occasions is deferential. We may reverse the court’s finding “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.) 

C. Analysis 

i. Does 1 and 2

Defendant was convicted of two counts of forcible oral copulation, two counts of 

forcible penetration, and one count of forcible rape of Doe 1, for which he received five 

consecutive terms of 25 years to life. He argues these offenses took place on, at most, 

three, not five, “separate occasions.” He was convicted of two counts of forcible oral 
16 

copulation and one count of forcible sexual penetration of Doe 2 and sentenced to three 

consecutive 25 years to life terms, but similarly asserts his assault on Doe 2 occurred on, 

at most, two “occasions.” Not so. The evidence supports the trial court’s conclusion that 

each of these counts warranted a consecutive term. 

Defendant assaulted Doe 1 and Doe 2 on the same night. Both were working as 

prostitutes when he and another man picked them up. After the four of them engaged in a 

consensual sexual encounter at a motel, defendant pulled out a shotgun and forced both 

women to participate in a series of nonconsensual sexual acts. Doe 1 testified that she 

was forced to orally copulate defendant at least three times. He first made her undress 

and put on Doe 2’s panties. Then he made her orally copulate him, then raped her. Over 

the next half-hour, defendant alternated between raping Doe 1 and then “flip[ping her] 

over” and penetrating her anus with his fingers. He did this “multiple times.” After 

about 30 minutes, defendant forced Doe 2 to orally copulate him while he put his fingers 

in Doe 1’s anus. Next, he forced Doe 1 to orally copulate him again while he put his 

fingers in Doe 2’s vagina. Defendant “switched” back and forth like this between the two 

women more than once. After he stopped this “switch[ing],” defendant demanded money 

from the women, threatened them with his gun, and made a phone call. Then he again 

forced Doe 1 to perform oral sex and, finally, made her get on her knees and raped her 

vaginally from behind. 

Registered nurse Katherine Stidwell performed sexual assault examinations on 

Doe 1 and Doe 2 the next morning. Doe 1 told Stidwell that defendant penetrated her 

vagina with his penis 15 times and with his finger 10 times, penetrated her anus with his 

finger twice, and unsuccessfully attempted to penetrate her anus with his penis. Doe 2 

told Stidwell that defendant forced her to orally copulate him more than six times. 

The trial court expressly found that each of the charged offenses as to Does 1 and 

2 were separate acts, “with the defendant having time to pause and reflect before making 

a decision to commit the next act.” The evidence supports those findings. Defendant 
17 

claims he had no opportunity to reflect between the first time he forced Doe 1 to orally 

copulate him, then raped her, and then repeatedly penetrated her anus with his finger, 

because “there is no evidence that [he] left the bed or did or said anything in between 

those acts.” He contends for the same reason that he had no opportunity to reflect 

between forcing Doe 2 to orally copulate him and then digitally penetrating her while he 

forced Doe 1 to take her place orally copulating him. But such evidence is not 

dispositive; all that is required is a reasonable opportunity to reflect on his actions before 

he resumed his sexual assault. (Pen. Code, § 667.6, subd. (d); People v. Irvin, supra, 43 

Cal.App.4th at pp. 1070-1071 [“a forcible violent sexual assault made up of varied types 

of sex acts committed over time against a victim, is not necessarily one sexual 

encounter”].) The trial court could reasonably find defendant had that opportunity, and 

nonetheless proceeded to commit further assaults on his victims. (See People v. Garza, 

supra, 107 Cal.App.4th at p. 1092.) 

ii. Doe 3 

Defendant was convicted of two counts each of rape and forcible oral copulation 

against Doe 3, for which he was sentenced to four consecutive terms of 25 years to life. 

Again, he contends these assaults constituted only two “separate occasions” of sexually 

assaultive conduct. Again, the trial court could reasonably conclude otherwise. 

Defendant overpowered Doe 3 in a motel room, undressed her, and raped her. 

When Doe 3 then went to the bathroom, defendant followed her and wiped her menstrual 

blood off of his penis. They then returned to the bedroom, where defendant forced Doe 3 

to orally copulate him. There was testimony that defendant took Doe 3 from the bed to 

the bathroom four times, where he would wipe himself off with a towel. Each time they 

returned from the bathroom to the bedroom, he raped her again. He also made her orally 

copulate him four times, alternating between penetrating her mouth and her vagina with 

his penis. The evidence that defendant took the time to go into the bathroom and clean 

himself between each incident of oral copulation followed by rape supports the court’s 
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determination that the counts occurred on separate occasions. The court reasonably 

concluded on the basis of this evidence that each of the charged offenses was committed 

on a “separate occasion” within the meaning of section 667.6, subdivision (d), and so 

correctly imposed consecutive terms on the challenged counts. 

DISPOSITION 

The judgment is affirmed. 

 

 _________________________ 

 Siggins, J. 

We concur: 

_________________________ 

McGuiness, P.J. 

_________________________ 

Pollak, J.