Filed 10/14/21 P. v. Catarino CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

EDGAR SANDOVAL CATARINO,

Defendant and Appellant.

 D078832

 (Super. Ct. No. C1635441)

APPEAL from a judgment of the Superior Court of Santa Clara County, 

Cynthia A. Sevely, Judge. Affirmed and remanded for resentencing.

Ron Boyer, under appointment by the Court of Appeal, for Defendant 

and Appellant David Olvera.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Donna 

M. Provenzano and Melissa A. Meth, Deputy Attorneys General, for Plaintiff 

and Respondent.

A jury convicted Edgar Sandoval Catarino of six counts of forcible lewd 

acts on a child under 14 and one count of attempted forcible lewd act on a 
2

child under 14. The trial court sentenced Catarino to 35 years and six 

months in prison. 

On appeal, Catarino argues the trial court prejudicially erred by 

allowing expert testimony on the statistical prevalence of false allegations of 

sexual abuse by children. He also asserts the court committed various errors 

in sentencing. Specifically, he contends (1) there was insufficient evidence to 

support the court’s finding of separate instances of abuse requiring 

consecutive sentences under Penal Code section 667.6, subdivision (d);1

(2) under the Sixth Amendment, that finding was required to be made by a 

jury, not the trial court; and (3) the court applied the wrong legal standard to 

its finding. Additionally, Catarino argues, and the Attorney General 

concedes, that the court erred by sentencing Catarino’s attempt conviction 

under section 667.6, subdivision (d). We agree with the parties that the court 

erred by sentencing the attempt conviction under section 667.6, 

subdivision (d), but reject each of Catarino’s other appellate contentions. 

Accordingly, we affirm the judgment and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

On November 8, 2017 the Santa Clara County District Attorney 

charged Catarino with eight counts of forcible lewd acts on a child under 14. 

The information alleged that Catarino molested his nine-year old cousin, B. 

Doe, eight separate times between June 8, 2015 and March 9, 2016 in 

violation of section 288, subdivision (b)(1) (counts 1 through 8). The case was 

brought to trial the following year. 

A. The Prosecution’s Case

At trial, the prosecution called Doe, her younger sister, and her parents 

to testify about the molestation. Doe’s mother, Angelica V., explained that 

1 Subsequent undesignated statutory references are to the Penal Code. 
3

her husband is the brother of Catarino’s mother and she is the sister of 

Catarino’s father. The two families were extremely close before the 

molestation and the families lived next door to one another. When Doe was 

in fourth grade, she and her sister would go to the Catarino’s house after

school twice a week to be watched by Catarino’s mother or his girlfriend, 

Laura D., while the girls’ parents worked. In February 2016 of that year, 

when Angelica was about to drop her daughters at the Catarino home, Doe 

told Angelica that she did not want to go because Catarino would do naughty 

things to her. 

After Doe told her mother about the abuse, Angelica and Doe’s father, 

Pedro V., convened a meeting with Catarino and his family. Doe and her 

sister were not included but were being watched in the house by Laura in 

another room. At the meeting, Catarino denied the accusations made by Doe. 

Catarino’s parents also did not believe Doe. Doe’s parents left the meeting in 

anger. When Angelica and Pedro returned an hour later, Catarino was 

asking for Doe’s forgiveness and he and his family were comforting her. 

Thereafter, Doe’s parents contacted the police and Doe was interviewed 

by Sugey Jaimez, a sheriff’s office sergeant trained in child forensic interview 

techniques. The interview was recorded and played for the jury. Doe also 

testified at trial about the molestation. She told the jury that all of the 

incidents occurred in Catarino’s bedroom. In describing the first incident, 

Doe stated that Catarino stood behind her, grabbed her by the waist, and put 

his hands under her clothing. Doe stated he touched her chest and her 

vagina under her clothes. Doe also testified that she could feel Catarino’s 

penis on her buttocks. During her trial testimony and her interview with 

Jaimez, she stated that Catarino moved back and forth “like a worm.” Doe 

stated she was scared and tried to push Catarino away. 
4

After this first incident, there were other times Catarino stood behind 

Doe and moved in a way that she felt his penis. Doe testified that it 

happened more than twice. Doe also told Jaimez that Catarino would rub her 

vagina, which she called “pineapple,” “like a hurricane” and “squish” it. Doe 

said that Catarino usually did not try to take off her underwear, but he would 

“dig in” to her vagina. He touched her vagina over her clothes more than 

once. Doe also testified that in a separate incident Catarino pulled her pants 

partway down her legs. She pulled them back up and he tried to pull them 

down again. In another separate incident, Catarino put his hand under Doe’s 

shirt and touched her bra. He tried to “squish” her breasts. 

During the interview with Jaimez and at trial, Doe stated that the last 

incident of abuse she remembered took place during a birthday party for 

Catarino’s mother. It was late, and Doe went to lie down in Catarino’s 

bedroom. When she woke up, Catarino was in the room. Catarino walked 

toward the bed and bit Doe on her upper chest. It hurt and left a mark. Doe 

testified that Catarino had bit her on the chest on two occasions. Angelica 

testified that she had once noticed a bite mark on Doe’s chest, but at the time

she did not know it was caused by Catarino. 

In each of the different instances of abuse, Doe was scared and she 

tried to fight off Catarino. Catarino told Doe not to tell anyone about his 

actions or he would get her in trouble, and said he would not let her play 

video games on his PlayStation, something nine-year-old Doe cared about. 

Because of Catarino’s threats, Doe was scared to tell her mother. 

Dr. Blake Carmichael testified for the prosecution as an expert in Child 

Sexual Abuse Accommodation Syndrome (CSAAS). Dr. Carmichael was not 

familiar with the facts of this case and did not speak to any of the other 

witnesses. Dr. Carmichael described CSAAS as a group of concepts used to 
5

educate people about sexual abuse, specifically the myths and misconceptions 

that many people hold about how a child should react to abuse perpetrated on 

them. In his testimony, Dr. Carmichael explained that there are five aspects 

to CSAAS: secrecy; helplessness; entrapment or accommodation; delayed, 

conflicted or unconvincing disclosure; and retraction. 

Dr. Carmichael testified that secrecy relates to the dynamic of how 

sexual abuse occurs, typically in private by a person with whom the victim 

has an ongoing relationship. This dynamic often inhibits the child victim 

from reporting the abuse because he or she does not want to ruin the 

relationship (or related family or friend relationships) by causing the 

perpetrator to be in trouble. Dr. Carmichael next explained that helplessness 

describes the vulnerability a victim feels when the abuse is perpetrated by 

someone who should be protecting them. According to Dr. Carmichael, 

helplessness inhibits a victim from reporting. 

Dr. Carmichael explained that entrapment and accommodation involve 

the coping mechanisms children employ to deal with abuse, including 

disassociating during the abuse, becoming fearful of the abuser, or counterintuitively continuing to have loving and caring feelings for the abuser. The 

fourth aspect of CSAAS—delayed, conflicted, or unconvincing disclosure—

relates to the fact that most child victims will not disclose the abuse right 

away, or the disclosure will occur incrementally. Similarly, a child victim’s 

inability to accurately remember details or chronology can create a perceived 

inconsistency in their narratives. Dr. Carmichael explained that because of 

the way memory works, it is more common for a child to omit details of the

abuse than make up events. During this portion of his testimony, 

Dr. Carmichael testified that several published studies of false allegations of 

child sexual abuse showed a range of two to five percent of allegations were 
6

false. Finally, Dr. Carmichael explained the concept of retraction relates to 

the fact that children will sometimes deny earlier, truthful accounts of abuse. 

B. The Defense Case

Catarino testified in his own defense. He stated he would wrestle with 

Doe and her younger sister, but categorically denied abusing Doe. Catarino 

testified he would help Doe play video games, with her sitting on his lap, and 

he told the jury he had on occasion spanked Doe when she misbehaved. He

didn’t recall his penis ever touching her or him touching her chest or vagina, 

but if it occurred it would have been accidental while they were playing. 

Catarino testified that he thought Doe was angry at him for scolding her 

about homework and that she made up the allegations to punish him. 

Laura also took the stand. She testified that she had warned Catarino 

not to wrestle with Doe and her sister in the manner he did because the girls 

were too old for it, and she thought it was inappropriate. She also stated that 

Doe had complained once that Catarino had touched her chest. However, she 

had never seen Catarino act in a sexually inappropriate or violent way 

towards Doe or any other child. She had no recollection of Doe ever being 

angry at Catarino. Laura also testified that Doe was not fearful of Catarino 

and had interacted with him normally at two family gatherings after 

reporting the abuse to her mother. Finally, Laura testified that Doe had 

watched soap operas and other television shows with mature themes, 

including molestation. 

The defense also called Catarino’s father, Catarino’s younger brother, 

Catarino’s aunt (who was also Doe’s aunt), two close friends, and Laura’s 

mother, who all testified they had never seen Catarino acting inappropriately 

towards Doe or other children, and that Catarino was not the type of person 

who would molest a child. One friend testified that after the allegations were 
7

made, she observed Doe interacting with Catarino at a family party and Doe 

hugged Catarino and did not seem scared of him. Catarino’s father also 

testified that Doe did not seem scared of Catarino or to dislike him. 

Catarino’s brother stated that he saw a slight change in Doe’s demeanor after 

she told her mother about the abuse, in that she was more reserved and 

“trying to be normal.”

C. Conviction and Sentencing

The jury found Catarino guilty on counts 1 through 6 of forcible lewd 

act on a child under age 14. On count 7, the jury found Catarino guilty of the 

lesser included offense of attempted forcible lewd act on a child under 14. 

The jury acquitted Catarino on the eighth count. Thereafter, the court 

sentenced Catarino to 35 years and six months in prison, consisting of the 

middle term of eight years on count 1, the lower term of five years on counts 2 

through 6, and the lower term of two years and six months on count 7, with 

the full terms running consecutively pursuant to section 667.6, 

subdivision (d). Catarino timely appealed. 

DISCUSSION

I

Catarino asserts the court prejudicially erred by allowing 

Dr. Carmichael to testify that published studies have shown false allegations 

of child molestation are rare. The Attorney General concedes admitting the 

testimony was error, but argues that it was not prejudicial.

A

Before trial, the prosecutor moved in limine to admit expert testimony 

concerning CSAAS. Catarino sought to limit CSAAS testimony to dispelling 

actual myths or misconceptions about child sexual abuse, and opposed any 

testimony or evidence related to statistics concerning false child sexual abuse 
8

allegations. At the motions in limine hearing, the trial court ruled that 

expert testimony on CSAAS would be allowed but failed to rule on the 

question of statistics of false allegations. 

During Dr. Carmichael’s testimony, Catarino’s counsel objected to his 

statement that “a number of research articles [have] shown somewhere 

between 40 and 60 percent of [victims] don’t tell [about the abuse] within the 

first year” after it occurs. The objection led to a sidebar conversation and 

additional argument about whether Dr. Carmichael would be permitted to 

testify about research showing false allegations of abuse were uncommon. 

Catarino’s counsel asserted that such testimony was impermissible because 

the expert would be substantiating the truthfulness of the testifying victim. 

The prosecutor responded that the testimony was permissible because it was 

not specific to the facts of the case. The court allowed the testimony and 

indicated it would provide a limiting instruction to the jury. 

Dr. Carmichael then testified about three studies concerning the 

prevalence of false allegations of abuse. He stated he was familiar with a 

study from 2006 “of over 9,000 cases of child maltreatment” in which 1,000 of 

the incidents involved sexual abuse. Dr. Carmichael testified that of those 

1,000 cases, none were found to involve false allegations by children, though 

some involved false allegations by parents. Dr. Carmichael then discussed 

two additional studies, one on “the eastern seaboard” and one from the 

Denver social services department, that had shown the rate of false 

allegations of abuse by children was between two and five percent. 

In his rebuttal closing, the prosecutor referred to this testimony, 

stating “I want to talk about Dr. Carmichael briefly just because it was 

brought up just a moment ago, and [Catarino’s counsel] mentioned 

Dr. Carmichael told you false accusations do occur. Sort of. He talked about 
9

a study that had 9,000 cases and it was reported at zero percent. So I guess 

you could say there are false allegations. He did talk about that. It’s a fact 

that they do exist, a percentage. I think the highest number he mentioned 

was five percent.” 

B

Prosecutors often elicit testimony concerning CSAAS in cases involving 

child sexual abuse. Such “expert testimony on the common reactions of child 

molestation victims is not admissible to prove that the complaining witness 

has in fact been sexually abused; it is[, however,] admissible to rehabilitate 

such witness’s credibility when the defendant suggests that the child’s 

conduct after the incident—e.g., a delay in reporting—is inconsistent with his 

or her testimony claiming molestation. [Citations.] ‘Such expert testimony is 

needed to disabuse jurors of commonly held misconceptions about child 

sexual abuse, and to explain the emotional antecedents of abused children’s 

seemingly self-impeaching behavior.’ ” (People v. McAlpin (1991) 53 Cal.3d 

1289, 1300–1301.)

After the trial in this case, two courts of appeal held that expert 

testimony involving statistical evidence of false allegations is inadmissible at 

trial. (People v. Julian (2019) 34 Cal.App.5th 878, 887 (Julian); and People v. 

Wilson (2019) 33 Cal.App.5th 559, 570 (Wilson).) Wilson, which collected 

cases from around the country, observed “the clear weight of authority in our 

sister states, the federal courts, and the military courts finds such evidence 

inadmissible.” (Wilson, at pp. 568‒570.) Such testimony, Wilson concluded, 

has “the effect of telling the jury there was at least a 94 percent chance that 

any given child who claimed to have been sexually abused was telling the 

truth.” (Ibid.) “In so doing, this testimony invade[s] the province of the jury, 

whose responsibility it is to ‘draw the ultimate inferences from the 
10

evidence.’ ” (Ibid.) We agree with this reasoning, and accept the Attorney 

General’s concession that the admission of the testimony was error. (See also 

People v. Collins (1968) 68 Cal.2d 319, 327 [“the prosecution’s introduction 

and use of mathematical probability statistics” constituted a “fundamental 

prejudicial error” because “it distracted the jury from its proper and requisite 

function of weighing the evidence on the issue of guilt” (Collins).)

Thus, the critical questions remaining are the appropriate standard of 

review and whether the error was prejudicial. We conclude that the error is 

not one of federal constitutional dimension, as Catarino contends. Rather, 

the error should be evaluated under the state law standard of People v. 

Watson (1956) 46 Cal.2d 818, 836. “ ‘The admission of evidence results in a 

due process violation only if it makes the trial fundamentally unfair. 

[Citation.] “Only if there are no permissible inferences the jury may draw 

from the evidence can its admission violate due process. Even then, the 

evidence must ‘be of such quality as necessarily prevents a fair trial.’ 

[Citation.] Only under such circumstances can it be inferred that the jury 

must have used the evidence for an improper purpose.” ’ ” (People v. Coneal

(2019) 41 Cal.App.5th 951, 972.) Catarino has not established that 

Dr. Carmichael’s relatively brief testimony on the occurrence of false 

allegations rendered his trial fundamentally unfair. 

Although the testimony supported a finding that Doe was a truthful 

witness, it is not the only inference the jury could have drawn. It is 

conceivable the jury may have inferred that false allegations occur, but are 

not well documented in the research, or that Dr. Carmichael was unaware of 

all research on the topic. The testimony also acknowledged that false 

accusations do occur. Thus, the prejudice standard governing errors of state 

law applies. (Wilson, supra, 33 Cal.App.5th at pp. 571–572.)
11

Further, “[i]n similar situations ... our high court has applied” the 

Watson standard, “under which we reverse only if it is reasonably probable 

the defendant would have reached a more favorable result in the absence of 

the error.” (Wilson, 33 Cal.App.5th at p. 571, citing People v. Bledsoe (1984) 

36 Cal.3d 236, 251–252 [applying Watson standard where evidence of rape 

trauma syndrome erroneously admitted to prove victim was actually raped]; 

Collins, supra, 68 Cal.2d at pp. 331–332 [applying Watson standard where 

“ ‘trial by mathematics’ so distorted the role of the jury”]; see also People v. 

Prieto (2003) 30 Cal.4th 226, 247 [“The erroneous admission of expert 

testimony only warrants reversal if ‘it is reasonably probable that a result 

more favorable to the appealing party would have been reached in the 

absence of the error.’ ”].)

C

Under the Watson standard, we conclude the error was not prejudicial. 

Dr. Carmichael’s testimony on the statistical evidence was limited, consisting 

of just two pages of transcript, and the prosecutor mentioned the evidence 

only briefly in his rebuttal closing argument. Critically, here, both the victim 

and the defendant testified extensively, allowing the jurors to directly assess 

their credibility. As the Attorney General points out, Doe had no motive to 

lie and every motive to keep the abuse secret and preserve the close family 

relationship between her immediate family and Catarino’s family. Doe was 

generally very consistent in her descriptions of the incidents of molestation. 

She also used language appropriate to her young age and gave detailed 

accounts of Catarino’s conduct. 

In contrast, Catarino admitted he might have touched Doe 

inappropriately during their play and his girlfriend Laura stated she had 

seen this occur. Catarino’s explanation that Doe was mistaken about his 
12

contact with her did little to counteract her detailed description of the abuse. 

While Doe was confused by some of the questions asked by Catarino’s counsel 

during cross-examination, she was clear that she understood the difference 

between a truth and a lie. Doe confirmed that the events she described 

occurred and were not false statements. Further, the jury was instructed on 

how to evaluate witness credibility and Dr. Carmichael explained he had not 

evaluated Doe or reviewed any of the evidence in this case. 

This case can also be distinguished from Julian, in which the Court of 

Appeal determined that the trial court’s admission of improper CSAAS 

evidence deprived the defendant of a fair trial. While Julian also involved a 

credibility dispute between a young victim and defendant, the Julian victim’s 

testimony was less consistent than Doe’s. Indeed, the prosecutor conceded in 

closing argument that the victim interviews with the investigator “ ‘were very 

different from her testimony’ and there were ‘some serious inconsistencies.’ ” 

(Julian, supra, 34 Cal.App.5th at p. 888, italics omitted.) 

In addition, the defense counsel in Julian did not object to the evidence 

and instead cross-examined the expert on the statistical evidence, allowing 

the expert to use “that opportunity to repeatedly reassert his claim that 

statistics show children do not lie about being abused.” (Id. at pp. 888–889.) 

Defense “counsel’s questions about multiple studies only opened the door to a 

mountain of prejudicial statistical data that fortified the prosecutor’s claim 

about a statistical certainty that defendants are guilty.” (Julian, supra, 34 

Cal.App.5th at p. 889.) Further, the prosecutor “asked the jury to rely on [the 

expert’s] statistical evidence that ‘children rarely falsify allegations of sexual 

abuse’ ” and “reminded jurors that [the expert] ‘quoted a Canadian study for 

over 700 cases, not a single one where there was a false allegation.’ ” (Ibid., 

italics omitted.) And defense counsel highlighted the “mountain” of 
13

statistical evidence in his closing, directing the jurors’ attention “once again, 

to the statistical study evidence right before they began their deliberations.” 

(Ibid.) The error in Julian, which supported reversal on the grounds of 

ineffective assistance of counsel, was far more egregious than the one here.

On this record, we do not agree with Catarino that it is reasonably 

probable the jury would have returned a more favorable verdict absent the 

error. Accordingly, reversal on this ground is not warranted. 

II

In several interrelated arguments, Catarino next contends the court 

improperly imposed consecutive sentences for the six convictions of forcible 

lewd act on a child under 14. He asserts (1) the Sixth Amendment required 

the finding of separate offenses to be made by a jury and not a judge, 

(2) insufficient evidence supported the trial court’s finding that the offenses 

were committed on separate occasions, and (3) the trial court applied the 

wrong legal standard to find the offenses “separate.” Catarino also argues 

that if we conclude his trial counsel did not preserve these issues for review, 

he was denied the effective assistance of counsel. As we shall explain, we 

reject these arguments and affirm the court’s imposition of consecutive 

sentences on counts 1 through 6.

A

After the jury rendered its verdict, the prosecution filed a sentencing 

memorandum arguing consecutive sentencing was required under section 

667.6, subdivision (d) because each of the charges of which the jury convicted 

Catarino occurred on separate occasions. The memorandum argued 

alternatively that the court should impose consecutive sentences under 

section 667.6, subdivision (c), which allows consecutive sentencing if the acts 

were perpetrated on the same occasion on one victim. Catarino filed a 
14

memorandum in response, arguing there was an insufficient basis to impose 

consecutive sentences on more than four counts because the verdict forms did

not identify which discrete acts constituted the offenses for which he was 

convicted. Catarino conceded Doe had described four separate instances of 

molestation during her testimony, but argued that three of seven sentences 

should be stayed under section 654. 

At the sentencing hearing, the parties repeated the positions stated in 

their briefing. The trial court rejected Catarino’s argument and imposed 

consecutive sentences for all seven convictions. The court found that “the 

victim testified that the defendant one, bit her chest more than one time; two, 

pressed his penis against her more than one time; three, touched the skin of 

her vaginal area, which she referred to as her pineapple; four, touched her 

vaginal area over the clothes more than one time; five, had her on his lap and 

moved like a worm one time; six, tried to take off her pants; and seven, put 

his hand under her shirt over her bra one time.” In response to Catarino’s 

argument that “the information and verdict forms do not provide enough on

their face to determine which [discrete] acts constitute each offense,” the 

court read aloud the jury instruction on unanimity, CALCRIM No. 35012, 

and noted that the jury was presumed to have followed the instruction. The 

2 The instruction stated: “The defendant is charged with LEWD OR 

LASCIVIOUS ACT ON A CHILD BY FORCE, VIOLENCE, DURESS 

MENACE AND FEAR in Counts 1–8 sometime during the period of June 8, 

2015 to March 9, 2016. [¶] The People have presented evidence of more than 

one act to prove that the defendant committed these offenses. You must not 

find the defendant guilty unless: [¶] 1. You all agree that the People have 

proved that the defendant committed at least one of these acts and you all 

agree on which act he committed for each offense; [¶] OR [¶] 2. You all agree 

that the People have proved that the defendant committed all the acts alleged 

to have occurred during this time period and have proved that the defendant 

committed at least the number of offenses charged.”
15

court then stated, “the jury convicted the defendant of seven separate 

incidents pursuant to Penal Code section 667.6, [subdivision] (d).” 

B

“Section 667.6, [subdivision (d)] requires consecutive terms for each 

violation of certain sex crimes (including [§ 288, subd. (a)]), ‘if the crimes ... 

involve the same victim on separate occasions.’ (§ 667.6, subd. (d).)” (People 

v. King (2010) 183 Cal.App.4th 1281, 1324 (King).) Under subdivision (c), the 

statute also authorizes the trial court to impose consecutive terms for 

convictions of the specified sex crimes “if the crimes involve the same victim 

on the same occasion.” (§ 667.6, subd. (c).)

Section 667.6, subdivision (d) provides guidance for determining 

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.” 

(§ 667.6, subd. (d).) “A finding that the defendant committed the sex crimes 

on separate occasions ‘does not require a change in location or an obvious 

break in the perpetrator’s behavior.’ (People v. Jones (2001) 25 Cal.4th 98, 

104.)” (King, supra, 183 Cal.App.4th at p. 1325.)

“Once the trial court has found, under section 667.6, subdivision (d), 

that a defendant committed the sex crimes on separate occasions, we will 

reverse ‘only if no reasonable trier of fact could have decided the defendant 

had a reasonable opportunity for reflection after completing an offense before 
16

resuming his assaultive behavior.’ ” (King, supra, 183 Cal.App.4th at 

p. 1325.)

C 

As an initial matter, Catarino contends that, because no jury made 

factual findings as to whether the offenses took place “on separate occasions,” 

mandatory consecutive sentences are prohibited as a violation of his right to 

a jury trial. “However, the United States and California Supreme Courts 

have held that the decision whether to run individual sentences consecutively 

or concurrently does not implicate the Sixth Amendment right to jury trial. 

(Oregon v. Ice (2009) 555 U.S. 160, 162–165; People v. Black (2007) 41 Cal.4th 

799, 820–823.)” (King, supra, 183 Cal.App.4th at p. 1324.) 

No authority cited by Catarino calls this rule into question. Rather, the 

cases he relies upon, Apprendi v. New Jersey (2000) 530 U.S. 466 and Alleyne 

v. United States (2013) 570 U.S. 99, require a jury to determine factual 

questions that increase the punishment for a particular criminal offense. The

rules announced in these cases do not apply to the court’s determination of 

whether to impose consecutive sentences for convictions of multiple criminal 

offenses. (See Oregon v. Ice (2009) 555 U.S. 160, 168 [The “twin 

considerations—historical practice and respect for state sovereignty—counsel 

against extending Apprendi’s rule to the imposition of sentences for discrete 

crimes. The decision to impose sentences consecutively is not within the jury 

function that ‘extends down centuries into the common law.’ [Citation.] 

Instead, specification of the regime for administering multiple sentences has 

long been considered the prerogative of state legislatures.”].) Accordingly, we 

reject Catarino’s Sixth Amendment claim. 

Alternatively, Catarino argues insufficient evidence supported the 

court’s determination that the crimes perpetrated against Doe occurred on 
17

separate occasions as that term is used in section 667.6, subdivision (d). This 

assertion is belied by the record. As the Attorney General outlines in his 

brief, Doe testified to at least six instances of abuse: (1) Doe testified the first 

time the abuse occurred, Catarino stood behind her so that she felt his penis, 

moved like a worm, and touched her vagina under her clothes; (2) Doe also 

stated Catarino stood behind Doe and pressed his body against her more than 

twice (showing a second and third separate instance that occurred standing); 

(3) Doe also described the instance that Catarino pulled her pants down as 

separate; (4) likewise, Doe described another separate incident in which 

Catarino called her into his room, made her sit on his lap, and grinded 

against her while he held her in place; (5) Doe described as a separate 

incident the final instance of abuse, which occurred the night of her aunt’s 

birthday party; and (6) Doe testified that Catarino bit her chest twice, rubbed 

her vagina over her clothes more than once, and put his hand under her shirt 

and touched her bra. 

This testimony was sufficient to support the trial court’s determination 

that Catarino committed six separate acts in violation of section 288, 

subdivision (a), i.e. that he “had a reasonable opportunity to reflect upon his 

... actions and nevertheless resumed sexually assaultive behavior.” (§ 667.6, 

subd. (d).) (See People v. Garza (2003) 107 Cal.App.4th 1081, 1092 [“[W]e 

may reverse 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.”], italics added.)

Finally, we reject Catarino’s contention that the trial court based its 

determination on an incorrect legal standard. The trial court’s reference to 

the jury’s six separate verdicts and the fact they were rendered after the 

court provided the jury with the unanimity instruction, does not show that 
18

the court improperly relied only on the unanimity instruction in making its 

section 667.6, subdivision (d) findings. Rather, the trial court was provided 

with the applicable law before the sentencing hearing in briefing by both 

parties and in the sentencing report prepared by the probation department. 

Contrary to Catarino’s assertion, the court’s reference to the jury’s separate, 

unanimous verdicts supported its determination of separate instances of 

abuse. The unanimity rule was not in conflict with such findings and 

Catarino has provided no reason to reject the presumption that the court 

knew the governing law. (See People v. Braxton (2004) 34 Cal.4th 798, 814 

[“A trial court is presumed to know the governing law ....”].)

III

Lastly, Catarino asserts the court erred by imposing a consecutive 

sentence on the attempt conviction. The Attorney General concedes the 

error, agreeing that remand for resentencing on count 7 is required. As both 

parties correctly point out, “[i]t is well established that the offenses 

enumerated within section 667.6 do not include attempted sex crimes.” 

(People v. Rodriguez (2012) 207 Cal.App.4th 204, 217.) 

“[W]hen a defendant is convicted of both violent sex offenses and crimes 

to which section 1170.1 applies, the sentences for the violent sex offenses 

must be calculated separately and then added to the terms for the other 

offenses as calculated under section 1170.1.” (People v. Pelayo (1999) 69 

Cal.App.4th 115, 124.) Thus, the matter must be remanded for the trial court 

to resentence Catarino in accordance with sections 1170.1 for count 7 and 

667.6, subdivision (d) for counts 1 through 6. 
19

DISPOSITION

The judgment is affirmed and the matter is remanded for the trial 

court to resentence Catarino in accordance with sections 1170.1 for count 7 

and 667.6, subdivision (d) for counts 1 through 6.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

DO, J.