Filed 10/23/17 P. v. McLaughlin CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Jeremy McLaughlin kidnapped, orally copulated, and raped his victim. Sentenced to a determinate term of six years eight months, with a consecutive indeterminate term of 30 years to life, defendant appeals. He argues: (1) the evidence established only one kidnapping even though he was convicted of two counts of kidnapping, (2) the evidence was insufficient to support the second kidnapping conviction, (3) defendant was denied his right to be present when the court reporter read back testimony to the jury, (4) the evidence was insufficient to support the oral copulation and rape convictions, (5) the cumulative effect of errors was prejudicial, (6) consecutive indeterminate terms of 15 years to life for each of the two sexual offenses constituted cruel and unusual punishment, and (7) the court abused its discretion in imposing fully consecutive indeterminate terms for the sexual offenses.

We conclude that the facts support only one kidnapping conviction. We therefore reverse the second kidnapping conviction and strike the determinate term associated with that count. Other than that, we find no prejudicial error and affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND

Victim Jane Doe dated defendant, off and on, for over one year during which time Doe broke up with her previous boyfriend but defendant remained with his wife. After Doe and defendant broke up, they remained friends and regularly engaged in sexual relations. Doe also helped defendant by babysitting his children while he worked.

During the evening on January 4, 2010, Doe went to defendant’s apartment to babysit his children. When she arrived, the children were not there. Defendant asked Doe if she wanted to have sex, but she declined. Defendant seemed upset.

Doe went with defendant to help him with a large item in the garage. Once they got into the garage, defendant pulled out two switchblades, holding one in front of Doe’s face and the other behind her back. He said he was in control. He put duct tape around Doe’s face and head, covering everything except her nose and eyes. And he zip-tied her hands behind her back. Defendant produced a large duffel bag, locked Doe inside the duffel bag, and left the garage, leaving Doe on the floor of the garage in the duffel bag. Approximately 10 minutes later, defendant moved the duffel bag containing Doe into a van.

About two hours later, defendant returned to the garage, let Doe out of the bag, and removed the tape and cut the zip ties. But he did not let Doe leave; instead, he forced her to sleep with him in the back of his van in the garage. He still had a switchblade, which he put on the bed.

The next morning, defendant orally copulated and raped Doe in the van in the garage.

Stilled armed, defendant took Doe back to his apartment, where they changed clothes. Defendant then drove Doe to Foresthill as defendant explained that they were going to live in an underground bunker he had built in the forest.

They arrived at a partially finished cinder block building built in a hole, and defendant put Doe to work filling cinder blocks with dirt. In the evening, defendant took Doe in the car away from the bunker, saying they needed to get supplies and get her belongings from her home.

They stopped at the Taco Bell drive-through in Auburn. When defendant leaned out of the car to get their order, Doe bolted from the car and ran into the Taco Bell, where she asked for and received help.

Additional facts are recounted in the Discussion.

The district attorney charged defendant by information with kidnapping for the purpose of committing rape and oral copulation (count one; Pen. Code, § 209, subd. (b)(1)); assault with a deadly weapon (count two; Pen. Code, § 245, subd. (a)(1)); rape (count three; Pen. Code, § 261, subd. (a)(2)), using a deadly weapon (Pen. Code, former § 667.61, subd. (e)(4)) and binding the victim (Pen. Code, former § 667.61, subd. (e)(6)); oral copulation (count four; Pen. Code, § 288a, subd. (c)(2)), using a deadly weapon (Pen. Code, former § 667.61, subd. (e)(4)) and binding the victim (Pen. Code, former § 667.61, subd. (e)(6)); and kidnapping (count five; Pen. Code, § 207, subd. (a)).

Defendant pleaded not guilty and not guilty by reason of insanity. And two doctors appointed to examine defendant opined that he was legally insane when he committed the crimes.

A jury found defendant not guilty of kidnapping for the purpose of committing rape and oral copulation but guilty of the lesser included offense of kidnapping. (Count one.) And the jury found defendant guilty of assault with a deadly weapon, rape, oral copulation, and kidnapping, with a determination that defendant used a deadly weapon in the rape and oral copulation. (Counts two through five.) The jury did not find that defendant bound the victim during the rape and oral copulation.

The same jury sat for the trial on defendant’s sanity plea but was unable to reach a verdict, deadlocking at a vote of 11 to 1 favoring a verdict that defendant was insane when he committed the crimes.

After the mistrial on the insanity plea, defendant elected to represent himself and withdrew his insanity plea.

The trial court sentenced defendant to the middle determinate term of five years for the first kidnapping conviction (count one) and a consecutive one year eight months (one-third the middle term) for the second kidnapping conviction (count five). The court sentenced defendant to a consecutive indeterminate term of 15 years to life for the rape conviction (count three) and a fully consecutive indeterminate term of 15 years to life for the oral copulation conviction (count four). Finally, the court stayed sentencing for assault with a deadly weapon (count two). In total, the court imposed a determinate term of six years eight months, followed by an indeterminate term of 30 years to life.

DISCUSSION

I

Sufficiency of Evidence for Two Kidnapping Convictions

Defendant argues there was only one kidnapping, and therefore substantial evidence does not support the second kidnapping count. The Attorney General agrees, as do we, because defendant abducted the victim starting in the garage and she was never free until she escaped at Taco Bell—making one continuous kidnapping.

Before trial, defendant was charged with one count of kidnapping for the purpose of rape and oral copulation. (Count one; Pen. Code, § 209, subd. (b)(1).) During trial, the court granted the prosecution’s motion to amend the information by alleging a second kidnapping count—simple kidnapping. (Count five; Pen. Code, § 207.) The prosecutor’s reasoning, as related by the trial court, was that the count alleging kidnapping for the purpose of rape and oral copulation applied to taking the victim to the garage and the count alleging simple kidnapping applied to taking the victim to Foresthill. The jury acquitted defendant of kidnapping for the purpose of rape and oral copulation, but convicted him of the lesser included crime of simple kidnapping. The jury also convicted defendant on the additional simple kidnapping count.

In reviewing a claim that a conviction lacks substantial evidence, we “ ‘ “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ’ ” (People v. Prince (2007) 40 Cal.4th 1179, 1251.)

“ ‘[T]he forcible detention of the victim is an implied element of the crime of kidnapping and, therefore, as long as the detention continues, the crime continues.’ [Citation.]” (People v. Thomas (1994) 26 Cal.App.4th 1328, 1335 (Thomas).) Thus, where there is “a single abduction, followed by a continuous period of detention,” a single act of kidnapping continues until the victim has been “released from that detention and the danger it presented.” (Ibid. [reversing second kidnapping conviction]; see also People v. Jackson (1998) 66 Cal.App.4th 182, 189-190.)

In Thomas, the defendant kidnapped the victim in a mall parking structure. He forced her into her car and demanded money and her ATM card. He then began to drive to the victim’s apartment so that she could retrieve her ATM card, but stopped, parked, and repeatedly raped the victim. The defendant then drove to the apartment, where the victim called the police. (Thomas, supra, 26 Cal.App.4th at pp. 1331-1332.) The defendant was convicted of, among other crimes, two counts of kidnapping with intent to commit robbery. (Id. at p. 1331.) The prosecution’s theory was that the first kidnapping ended when the defendant stopped the car and raped the victim, and a second kidnapping occurred when the defendant drove the victim from the site of the sexual offenses to her apartment, intending to rob her. (Id. at p. 1334.) The Court of Appeal reversed, holding that there was “a single abduction, followed by a continuous period of detention.” (Id. at p. 1335.) “That [the defendant] may have changed his approach or focus as to the robbery, uttered a variety of threats to the victim, and engaged in other crimes after the initial abduction did not transform the offense into two kidnappings.” (Ibid.)

The facts of this case are similar to the facts in Thomas. Defendant, here, detained Doe when they were in the garage. From that time, she remained in his detention until she escaped at Taco Bell. While there were times when she could have decided to try to escape, there was no time when she actually escaped or was free to go. The fact that defendant detained her in the garage, where he committed sexual offenses against her, then took her against her will to Foresthill did not convert one kidnapping into two kidnappings. We therefore agree with defendant and the Attorney General that we must reverse the second conviction for kidnapping (count 5) on which defendant was sentenced to a consecutive determinate term of one year eight months (one-third the middle term).

II

Sufficiency of Evidence of Kidnapping

Defendant’s second contention is moot because we reverse one of the kidnapping convictions. He contends that the first kidnapping conviction must be reversed because the movement of Doe within the garage was not significant enough to support a kidnapping conviction. However, he concedes that reversal of one of the kidnapping convictions eliminates his concerns about the sufficiency of the evidence. He is correct because the movement of Doe supporting the now-solitary kidnapping conviction includes taking her to Foresthill, which is inarguably sufficient movement to support a kidnapping conviction. Accordingly, as defendant concedes, we need not consider this contention further.

III

Defendant’s Absence During Readback of Testimony

Defendant contends the reading back of testimony to a jury is a critical stage in a criminal prosecution at which he has a federal constitutional right to be present. He asserts the trial court violated this constitutional right by not allowing him to be present for the jury readback. We conclude, as defendant concedes, that the California Supreme Court has held that jury readback is not a critical stage in a criminal prosecution, and the United States Supreme Court has not held otherwise.

Immediately after the jury retired to deliberate, the trial court asked: “Counsel, do you stipulate that if the jurors want read back or have any questions that I may send in the answer or send in the court reporter with read-back without us meeting here in open court?” Counsel so stipulated. Later, the jury requested a readback of Doe’s testimony concerning the sexual offenses. The court notified counsel that the readback would take place the following morning, and no one objected. The following morning, the reporter did the readback in the jury room.

“[T]he right to personal presence at all critical stages of the trial” is a “fundamental right[] of each criminal defendant.” (Rushen v. Spain (1983) 464 U.S. 114, 117 [78 L.Ed.2d 267, 272], fn. omitted.) However, the California Supreme Court has specifically rejected the notion that jury readback is a critical stage of the prosecution. (People v. Cox (2003) 30 Cal.4th 916, 963, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Ayala (2000) 23 Cal.4th 225, 288; People v. Horton (1995) 11 Cal.4th 1068, 1120-1121; see also People v. McCoy (2005) 133 Cal.App.4th 974, 982-983.) The California Supreme Court’s decisions are binding on us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Nevertheless, defendant argues that the jury readback outside his presence, and without his personal waiver, violated his right to be present at all critical stages of the prosecution. In support, he cites precedent of the Ninth Circuit of the United States Court of Appeals. (See Turner v. Marshall (9th Cir. 1995) 63 F.3d 807, 815, overruled on other grounds in Tolbert v. Page (9th Cir. 1999) 182 F.3d 677, 685.) But the Ninth Circuit recognizes that the United States Supreme Court has never held that jury readback is a critical stage of the prosecution. (La Crosse v. Kernan (9th Cir. 2001) 244 F.3d 702, 708.)

In any event, we reject defendant’s contention based on the California Supreme Court precedent.

IV

Sufficiency of Evidence of Rape and Oral Copulation

Defendant contends the evidence was insufficient to support the convictions for rape and oral copulation because, specifically, the evidence established, contrary to the jury’s verdicts, that defendant entertained a reasonable and good faith belief that Doe consented to the sexual acts. We conclude that the evidence was sufficient to sustain the jury’s verdicts.

A. Legal Principles

Consent is a defense to both the rape allegation and the oral copulation allegation in this case. (Pen. Code, §§ 261, subd. (a)(2); 288a, subd. (c)(2)(A).) At trial, defendant relied on what is sometimes termed “the reasonable belief in consent defense,” or the “Mayberry defense” after People v. Mayberry (1975) 15 Cal.3d 143. This defense differs from actual consent in that it “ ‘permits the jury to conclude that both the victim and the accused are telling the truth. The jury will first consider the victim’s state of mind and decide whether she consented to the alleged acts. If she did not consent, the jury will view the events from the defendant’s perspective to determine whether the manner in which the victim expressed her lack of consent was so equivocal as to cause the accused to assume that she consented where in fact she did not.’ ” (People v. Rhoades (1987) 193 Cal.App.3d 1362, 1367.) “The reasonable belief defense derived from Mayberry is founded upon evidence showing the defendant acted under a mistake of fact sufficient to harmonize his assertion of consent with the victim’s story that consent was lacking. [Citations.]” (Id. at p. 1369.)

The trial court instructed the jury with CALCRIM Nos. 1000 and 1015 that defendant is not guilty of rape or oral copulation if he “actually and reasonably believed that the woman consented to the [act].” Ordinarily, this involves a determination of credibility and a question of fact—namely, the defendant’s mental state. (See, e.g., People v. Coddington (2000) 23 Cal.4th 529, 583, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) However, even if the jury concludes the defendant honestly believed that the victim consented, the jury must determine whether that belief was reasonable under the circumstances. “[R]egardless of how strongly a defendant may subjectively believe a person has consented to sexual intercourse, that belief must be formed under circumstances society will tolerate as reasonable” (People v. Williams (1992) 4 Cal.4th 354, 361 (Williams).)

B. Facts

Defendant, who was married to someone else, and Doe had a preexisting relationship. They had been dating, but Doe broke up with defendant in September 2009, causing defendant to break down and cry. Even after that, they maintained what Doe referred to as a “friends with benefits” relationship, meaning they still engaged in sexual activities together. At first, they had sex about once a week, but it decreased after that because Doe was uncomfortable with the nature of the relationship.

In December 2009, defendant invited Doe for a Christmas meal, but Doe declined. After trying to negotiate with Doe to get her to accept the invitation, defendant eventually got angry. However, Doe assisted defendant late in December by babysitting his children while he was at work. Once or twice during that time, Doe and defendant had sex when he returned home from work.

On January 4, 2010, Doe went to defendant’s apartment to babysit defendant’s children, but she found that the children were not there when she arrived. Defendant asked Doe if she wanted to have sex, but she declined. Defendant seemed upset. Defendant asked Doe to go with him from his apartment to his garage unit located a few hundred yards away to help carry a large item. She went with him.

Inside the garage, defendant closed the door and pulled out two opened switchblades, holding one in front of Doe’s face and the other behind her back. He told her that he was in control and was sick of what she was doing to him after all he had given her. He said he would hurt her if she caused any problems. She was terrified.

Defendant pulled a roll of duct tape from his car and instructed her to put tape around her head and cover her mouth. Doe pleaded with him, but he said she had pushed him too far. She began taping herself, but he became frustrated and took over, winding the tape around several times to cover all but her nose and eyes. She had trouble breathing. Defendant bound Doe’s hands tightly behind her back with zip ties, hurting her.

Defendant pulled a duffel bag out of his car and told Doe to get inside the bag. She reluctantly complied. Defendant zipped up the bag and put three or four padlocks on the bag to lock the bag. Defendant put the bag, with Doe inside, on the concrete floor of the garage and dragged the bag up against a wall. He moved some plywood around, and one of the pieces hit Doe in the face.

After approximately 10 minutes, defendant placed Doe, still in the bag, in the back of his van, on the floor. Defendant used duct tape around the outside of the bag to restrict Doe further. He also patted the bag, saying, “I love you, sweetie,” which Doe found very creepy. He told her to try to fall asleep. Defendant left the garage. Still bound and taped up inside the bag, Doe had difficulty breathing and felt like she might die.

After about two hours, defendant returned to the garage. He opened the bag far enough for Doe’s head to be outside of it. Eventually, defendant took the tape off Doe’s face and told Doe that he was taking Doe to live in an underground bunker he had built in the forest. She said she did not want to go, but he replied that she had to. Defendant cut the zip ties and allowed her to move out of the bag to the bed in the back of the van, but he told Doe that they had to stay the night in the van. Doe tried to act as if she loved him because she was afraid he would put her back in the bag.

Defendant and Doe spent the night in the van. Doe wanted to escape, but defendant placed one of the switchblades next to him on the bed and he told her not to try anything “stupid.” Defendant tried to cuddle with Doe, but Doe shrugged him off and went to sleep.

When Doe woke up the next morning, defendant was undoing the drawstring on her pants. He took off her pants and underwear and began performing oral sex on her. While defendant was removing her pants, Doe removed her sweatshirt, under which she was not wearing anything. Doe testified that they commonly engaged in oral sex when they were dating, but she did not want him to do it because she felt like his prisoner. She had her head turned to the side and did not make any noise. After about 10 minutes she felt some kind of painful cramp, so she pushed him off. Defendant took off his pants, got on top of her, and put his penis in her vagina. Again, Doe did nothing to indicate she was enjoying the experience. After about 10 minutes, defendant said, “Sweetie, what’s wrong?” She indicated to him that she was not enjoying it. He got off her and put his pants on, mumbling that it was typical of her to use him.

Eventually, Doe and defendant left the garage and walked back to the apartment. Defendant was holding Doe’s arm and had a pocket knife in his pocket. Doe told defendant that what happened in the van felt like rape. He answered that it was not rape and pointed out that she took off her sweatshirt. He was angry that she would suggest that it was rape. Later, in a pretext call, defendant said to Doe that he stopped because she said it felt like rape and that, “in all fairness, you were all for it at first.”

Also in the pretext call, Doe indicated that defendant had a switchblade next to him in the van while he engaged in sexual activities. He said, “No, I moved it, so it was out of the way.” And she responded that it was still right next to him.

C. Analysis

We will assume for the purpose of argument, without finding, that defendant honestly believed that Doe consented to the oral copulation.

After summarizing the evidence relevant to whether defendant reasonably believed that Doe consented to the oral copulation and intercourse, defendant argues: “In the context of the sexual relationship that [defendant] and Ms. Doe had pursued with one another during the several months after she broke up with him, it was reasonable for [defendant] to believe she consented to have sex in the van on January 5th. This is true in spite of the fact that she had declined to have sex earlier that evening, and had endured several hours of maltreatment before it occurred. As explained above, [defendant] and Ms. Doe had a history of engaging in sexual acts even when their relationship was rocky. Given that history, it was reasonable for [defendant] to believe Ms. Doe consented to have sex absent a clear indication from her that she did not. In fact, Ms. Doe conceded that he immediately stopped the act of intercourse that morning and got dressed when she told him she was not enjoying it.”

This is an argument that defendant could and did make to the jury. But on appeal he is arguing that the evidence was insufficient to sustain the conviction. In other words, he is arguing that there was no substantial evidence that defendant’s belief that Doe consented to oral copulation and intercourse was unreasonable. To the contrary, the evidence of unreasonableness was substantial.

“The Mayberry defense has two components, one subjective, and one objective. The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented . . . . In order to satisfy this component, a defendant must adduce evidence of the victim’s equivocal conduct on the basis of which he erroneously believed there was consent.” (Williams, supra, 4 Cal.4th at pp. 360-361, fn. omitted.) Evidence of the defendant’s state of mind may be circumstantial. (People v. Thomas (2011) 52 Cal.4th 336, 355.)

“In addition, the defendant must satisfy the objective component, which asks whether the defendant’s mistake regarding consent was reasonable under the circumstances. Thus, regardless of how strongly a defendant may subjectively believe a person has consented . . . , that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction. [Citation.]” (Williams, supra, 4 Cal.4th at p. 361.)

In this case, defendant’s argument fails because his belief Doe consented was not “formed under circumstances society will tolerate as reasonable.” (Williams, supra, 4 Cal.4th at p. 361.) Defendant taped Doe’s face, bound her wrists, and shoved her into a bag for two hours. She had difficulty breathing and feared for her life. Defendant brandished a weapon, which Doe knew he had with him during the entire episode, and he threatened to use it. He told her he was in control. She declined his advances before going to the garage, and she shrugged him off in the van. However, he forced her to sleep by his side, and he warned her not to do anything “stupid.” Then he began his sexual attack when she was asleep. She was his prisoner, and he took advantage of that situation to orally copulate her and have intercourse with her. The prior relationship and Doe’s self-preservationist instinct not to resist under these circumstances do not establish that defendant’s belief in consent was reasonable. Instead, his belief was morally reprehensible and indefensible. The jury got it right.

V

Cumulative Error

Defendant contends that the errors, considered cumulatively, “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643 [40 L.Ed.2d 431, 437].) To the contrary, other than the improper conviction on the second kidnapping count, which we reverse, there was no error. Therefore, there is no cumulative prejudice.

VI

Cruel and Unusual Punishment

Defendant contends the consecutive indeterminate terms of 15 years to life imposed for the rape (Pen. Code, § 261, subd. (a)(2)) and oral copulation (Pen. Code, § 288a, subd. (c)(2)) violate the federal and state constitutional proscriptions on cruel and unusual punishment because the punishment is disproportionate to the crimes. The contention is without merit.

A. Legal Principles

A punishment violates the Eighth Amendment of the United States Constitution if it is “ ‘grossly disproportionate to the severity of the crime.’ ” (Ewing v. California (2003) 538 U.S. 11, 21 [155 L.Ed.2d 108, 117].) A punishment may amount to cruel or unusual punishment under article I, section 17 of the California Constitution if “it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) We construe our state constitutional provision separately from its counterpart in the federal Constitution. (People v. Carmony (2005) 127 Cal.App.4th 1066, 1085.)

To assess proportionality under the state proscription of cruel or unusual punishment, we (1) examine the nature of the offense and the offender, (2) compare the sentence with punishments for more serious offenses in the same jurisdiction, and (3) compare the sentence with punishments for the same offense in other jurisdictions. (In re Lynch, supra, 8 Cal.3d at pp. 425-427.) The assessment is nearly identical under the federal proscription of cruel and unusual punishment, in which we analyze “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” (Solem v. Helm (1983) 463 U.S. 277, 292 [77 L.Ed.2d 637, 650].)

“In examining ‘the nature of the offense and the offender,’ we must consider not only the offense as defined by the Legislature but also ‘the facts of the crime in question’ (including its motive, its manner of commission, the extent of the defendant’s involvement, and the consequences of his acts); we must also consider the defendant’s individual culpability in light of his age, prior criminality, personal characteristics, and state of mind. [Citations.]” (People v. Crooks (1997) 55 Cal.App.4th 797, 806.)

B. Procedural and Factual Background

Because defendant used a deadly weapon when committing the sexual offenses, the sentencing provisions found in Penal Code section 667.61, subdivision (e)(3) (which was subdivision (e)(4) at the time of defendant’s crimes (Stats. 2006, ch. 337, § 33)) applied, providing for an indeterminate term of 15 years to life for each of the two sexual offenses. The trial court imposed those two terms consecutive to the determinate term for kidnapping and fully consecutive to each other. (Pen. Code, § 667.6, subd. (d).)

C. Analysis

Defendant focuses on the mitigating circumstances relating to him personally in making his argument that the 15-year-to-life consecutive sentences for rape and oral copulation were cruel and unusual. He cites the probation report, which states that he has no prior criminal record, he was fully employed, and he was honorably discharged from the Navy after service in Iraq. He also cites evidence from the trial on his sanity, which ended in a hung jury. The doctors at that trial opined that he was legally insane when he committed the crimes. They found evidence of major depressive disorder and posttraumatic stress disorder. We conclude that, even considering these allegedly mitigating circumstances, defendant’s crimes against Doe were of a nature demanding the harsh punishment imposed.

“ ‘Our Supreme Court has emphasized “the considerable burden a defendant must overcome in challenging a penalty as cruel or unusual. The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment. While these intrinsically legislative functions are circumscribed by the constitutional limits of article I, section 17 [of the California Constitution], the validity of enactments will not be questioned ‘unless their unconstitutionality clearly, positively, and unmistakably appears.’ ” [Citation.]’ [Citation.]” (People v. Sullivan (2007) 151 Cal.App.4th 524, 569.)

Here, defendant raped and orally copulated Doe while in possession of a deadly weapon. The California Legislature has determined that such conduct merits harsh punishment—an indeterminate term of 15 years to life for each crime. Defendant exhibited the weapon early in his crimes against Doe. In fact, at the beginning, he had two switchblades, holding one in front of Doe’s face and the other behind her back, both menacing and fear-inducing acts, telling her he was in control. When he and Doe were in the van, he placed one of the switchblades on the bed next to him and told Doe not to try anything “stupid.” With the switchblade within reach, he began his assault on Doe while she was asleep. As we noted before, any belief on his part that the rape and oral copulation were consensual was reprehensible under the circumstances he placed Doe in.

Defendant attempts to analogize his case to People v. Dillon (1983) 34 Cal.3d 441. In that case, the defendant was a 17-year-old high school student who shot and killed a man during an attempted robbery at a marijuana farm. (Id. at pp. 451-452.) A jury convicted him of first degree felony murder. (Id. at p. 450.) The high court there found that the sentence of 25 years to life violated the proscription of the California Constitution against cruel and unusual punishment. (Id. at p. 489.) The court stressed the defendant’s age, lack of criminal record, immaturity, and the fact that the attempted robbery was the product of “youthful bravado.” (Id. at pp. 482, 488.) In particular, the court focused on the fact that the shooting occurred when the defendant and one of his companions were surprised by the victim, who was guarding the plants and appeared suddenly through some bushes behind them aiming a shotgun at them. (Id. at pp. 482-483.) The court concluded that the defendant feared for his life, panicked, and fired the shots because of a situation from which he could not extricate himself. (Id. at p. 488.)

This case does not compare well to Dillon. While defendant had no prior criminal record, he was 28 years old when he committed these offenses, old enough to understand the gravity of what he was doing. There was no element of reacting to an unanticipated situation. Instead, defendant planned the crimes carefully and committed them over a long period of time. Defendant asserts that we must consider that psychologists in his inchoate insanity trial opined that he was suffering from some psychological difficulties when he committed the crimes. But he was unsuccessful in convincing a jury that he was insane when he committed the crimes. The facts, as we have recounted them above, show the actions of a mature individual who carried out a meticulous and cruel plan to victimize his former girlfriend over a long period of time, including the two sexual offenses committed in the van, while using a deadly weapon. As the Legislature has determined, these crimes should be punished harshly.

Therefore, considering the nature of the sexual offenses, committed with a deadly weapon, and the nature of the offender who was a mature man and someone the victim should have been able to trust, the motive, manner of commission, extent of the defendant’s involvement, and consequences of his crimes justify the two consecutive 15-year-to-life terms for rape and oral copulation while armed with a deadly weapon. (People v. Crooks, supra, 55 Cal.App.4th at p. 806.)

Defendant’s arguments on the cruel and unusual punishment issue are without merit under both federal and state standards.

VII

Consecutive Sentencing

Defendant also contends that the trial court abused its discretion by imposing fully consecutive indeterminate terms for the two sexual offenses. To the contrary, imposition of consecutive sentencing was well within the discretion given to the trial court.

The trial court must impose a “full, separate, and consecutive term” for rape and oral copulation “if the crimes . . . involve[d] the same victim on separate occasions.” (Pen. Code, § 667.6, subd. (d).) That statute supplies the standard for the trial court to apply: “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.” (Ibid.) A momentary pause between crimes may be sufficient for a defendant to reasonably reflect on his actions and then resume the assault. (People v. King (2010) 183 Cal.App.4th 1281, 1325 [defendant had reasonable opportunity to reflect when he saw lights of car driving by and momentarily paused to look around uneasily before resuming his sexual assault].)

We may reverse a finding that the defendant committed offenses on separate occasions under Penal Code section 667.6, subdivision (d) “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.)

Here, the trial court stated it had discretion to impose consecutive or concurrent sentencing, and it imposed consecutive sentencing because the rape and the oral copulation, in the court’s words, were “clearly two separate acts.” The court added: “I can make it concurrent if I thought that it was appropriate. And I considered my discretion to make that concurrent, but I determined that the facts and the circumstances warrant that that sentence run consecutive.” Still later, after argument by defendant, the court said: “The factors determining consecutive [terms] were that they were separate offenses or separate intents separated by time.”

Defendant argues that the trial court abused its discretion because the oral copulation and rape did not involve separate intents and were not separated in time. To the contrary, the facts supported the trial court’s determination.

Defendant, armed with a switchblade, orally copulated Doe until she pushed him off. At that point, defendant removed his pants, got on top of Doe, and raped her. Having been pushed off and with his pants still on, defendant “had a reasonable opportunity to reflect upon his . . . actions” before resuming the sexually assaultive behavior. (Pen. Code, § 667.6, subd. (d).) Therefore, under the statutory standard, a fully consecutive term was appropriate.

In making his contention that imposing fully consecutive terms was an abuse of discretion, defendant fails even to mention the statutory standard in Penal Code section 667.6, subdivision (d), quoted above. Instead, he argues that we should apply a Supreme Court case interpreting the “single occasion” rule as it relates to a part of Penal Code section 667.61 now repealed. (People v. Jones (2001) 25 Cal.4th 98, interpreting Pen. Code, § 667.61, former subd. (g).) In that case, which involved interpretation of the term “single occasion,” rather than “separate occasions,” the Supreme Court declined to apply the statutory definition of the latter phrase found in Penal Code section 667.6, subdivision (d), because both the wording and the circumstances of application were different. (Id. at pp. 105-107.) Accordingly, the opinion in that case, interpreting a different term used in a different statute, is not persuasive in this case. That statutory standard prevails.

DISPOSITION

The conviction in count five for kidnapping is reversed, and the determinate term imposed for that count is struck, thus reducing the determinate term imposed to a total of five years. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to send a copy to the Department of Corrections and Rehabilitation.

NICHOLSON , Acting P. J.

We concur:

ROBIE , J.

MURRAY , J.