California, United States of America
The following excerpt is from People v. Vargas, B291761 (Cal. App. 2019):
Defendant argues, the Attorney General concedes, and we agree that the trial court erred in sentencing defendant on one of the two counts of aggravated sexual assault by oral copulation (counts two and five). A mandatory sentence under section 667.6, subdivision (d) is erroneous " '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. King (2010) 183 Cal.App.4th 1281, 1325.) Here, as the Attorney General acknowledges, the record does not demonstrate the required moment or opportunity for reflection between the two tongue thrusts. Accordingly, we agree with the parties that it was error to impose a mandatory consecutive sentence under section 667.6, subdivision (d), on count five in addition the mandatory consecutive sentence imposed on count two.
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