Assault and the ability to reflect – one count or multiple counts?

Jay Leiderman
By: Jay Leiderman
November 14 2016

The case of People v. Irvin, 43 Cal. App. 4th 1063 is apposite.  In that case the sentencing judge said even more to distinguish that time interval necessary to reflect and that was rejected as insufficient in Irvin.  The established case law mandates a reversal of the consecutive counts in this case:

In this case [Irvin], in sentencing the defendant, the court stated in pertinent part:

“The reason for the consecutive sentences, that is those that are going to be run consecutive, would be that these are crimes which fall within the dictates of 667.6. In particular, the offenses of 289 and 288a, that code section allows for a fully consecutive sentence. The jury having found that there were separate counts of each particular offense committed, it then is incumbent upon me to determine whether or not the crimes against the victim were committed on separate occasions.  I have to consider whether in the commission of any of these offenses the defendant had a reasonable opportunity to reflect upon his actions, upon such reflection, then resume the sexually assaultive behavior that he engaged in.

reflect
Rodin’s The Thinker, reflecting

“I am making the determination that, based upon the facts of this case, again after hearing the prelim and after hearing the jury trial, that there was opportunity for a reflection on behalf of the defendant. This went over a duration of time these various acts were committed, then there was a brief interval. As Miss Frazier indicated, he would stop, have a brief conversation, catch his breath, go back and commit other acts. There was some moving around within the house when these acts were committed. In other words, at  [*1070]  one point in time several of the acts were in one room, they went on into another room when the acts continued there.

a reasonable opportunity to reflect upon his actions

“Accordingly, I find that under those dictates that a consecutive sentence would be in order.”

This statement by the court does not provide a sufficient analysis of the facts to allow this court to determine why it concluded all  acts must have occurred on “separate occasions” within the meaning of subdivision (d).

People v. Irvin, 43 Cal. App. 4th 1063, 1069-1070.

In People v. Pena (1992) 7 Cal.App.4th 1294, review denied, “Ms. B. was unlocking the door of her home when appellant approached her from behind carrying a cup. He said something about “water” and pushed her into her home and onto a rollaway bed in her living room where he raped her. Subsequently, appellant got off of her, twisted her by the legs violently, and orally copulated her.”  7 Cal.App.4th at 1299.  This was insufficient to trigger full term consecutive sentences under subdivision (d) because: The holding in [the cases they rely upon] strongly suggests a change in positions, alone, is insufficient to provide a perpetrator with a reasonable opportunity to reflect upon his actions, especially where the change is accomplished within a matter of seconds.”  7 Cal.App.4th at 1316.

Accordingly, the counts that were sentenced consecutively where the petitioner did nothing more than change positions, coupled with the trial court’s failure to adequately state reasons for the imposition for the full term consecutive sentencing was error mandating that this court issue its writ of habeas corpus.

9 thoughts on “Assault and the ability to reflect – one count or multiple counts?

  1. All that is gold does not glitter,
    Not all those who wander are lost;
    The old that is strong does not wither,
    Deep roots are not reached by the frost.
    From the ashes a fire shall be woken,
    A light from the shadows shall spring;
    Renewed shall be blade that was broken,
    The crownless again shall be king

  2. 10 Oct 2013: update.

    I’m seeing a lot of people coming here to read this. For some reason that I can’t determine, this article has become more popular.

    If you want to learn more about Sue Basko, “Lawyer for Music and Film”, you can do so from these websites:
    Sue Basko claims that parents of Autistic kids are riding the “gravy train”. – Liz Ditz, “I Speak of Dreams” blog.
    Autism Story triggers a shitstorm – “Def Sheppard” blog
    How not to make a fool of yourself on the Internet – “Harpocrates Speaks” blog
    Update – “Def Sheppard” blog
    And just in case you ARE Sue Basko, I have a couple of websites you should also be concerned about.
    How a famous singer and movie star removed unwanted information from the Internet.
    How a CEO got customers to remove unwanted comments from the Internet.
    What bloggers are NOT ALLOWED to say about you.

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  5. Sue Basko was really the lawyer for Adam Lanza support group but got angry when it went public!!!!

    Remove ‘Adam Lanza is a Hero’ Page
    December 20, 2012 ·
    57 minutes ago
    Sue Basko
    WOULD YOU BE SO KIND AS TO POST ON YOUR PAGE that I am NOT the lawyer for the Adam Lanza Hero pages. Also there is a woman, Tamara Watts, who posted that I was the lawyer and also posted a link to one of my blogs – will you please remove this?
    I posted so many times saying I was NOT the lawyer that now I am banned by FB from posting ANY comments! on any pages! for a few days, I guess.
    YOU CAN POST THIS: I am a victim of the person who made the page. He posted my photo and name to harass and defame me. He has also seriously threatened to kill me. I am not sure exactly who he is, but I do have info from which his identity should be ascertainable. The FBI in New Haven CT and also in Chicago IL are working on it. PHone or emails calls to the FBI in either location WILL help get them on the ball. The person who posted the pages is, in my opinion, probably already a killer and is VERY dangerous. My life has been credibly and graphically threatened. Everyone should be very CAREFUL because I think we are dealing with an actual killer. Thank you — Sue

  6. Why would a 12-year girl want to die? Why would a 12-year girl want to die? What would make a 12-year-old girl end her life? Why would a 12-year-old girl want to say goodbye? Now I lay here with an empty bottle of pills by my side. It was just too much to hide. My little brother found me on my bathroom floor. He went screaming out the door. The ambulance came and I heard voices fading away. I can still make out what they say. Why would a 12-year girl want to die? What would make a 12-year-old girl end her life? Why would a 12-year-old girl want to say goodbye? Now I lay in a hospital bed. He can’t hurt you anymore the nurse said. Thank god the gun box was locked. Now theirs a knock. The cops came in and said my sister talked. They said after what my father did he will never walk. Why would a 12-year girl want to die? What would make a 12-year-old girl end her life? Why would a 12-year-old girl want to say goodbye? He came in my room at night. Something’s a child just cant fight. Tired of living with this dirty feeling. Tired of all together feeling. Why Daddy Why? Why would you make me cry, lie, and all-together die? Why would a 12-year girl want to die? What would make a 12-year-old girl end her life? Why would a 12-year-old girl want to say goodbye? Mom didn’t know. She said it wasn’t my fault and beyond my control. They said there were more. They just were scared to come forward before. Now I’m on the stand facing a child molester. The lawyer asks my father. Why would a 12-year girl want to die? What would make a 12-year-old girl end her life? Why would a 12-year-old girl want to say goodbye? What did you do that was so bad that your daughter wanted to die?

    The National Center for Missing & Exploited Children
    http://www.missingkids.com/

  7. Susan Marie Basko✡ (also known as Batshit Baskocase Sue, Solange Soleil and Suehappy Basketcase for short) is a known belligerent attorney at lol who has been involved in and lost over 9,000 cases in Internet Court. She is also an IRL lawyer with a license to practice law in California and Illinois (note: NOT in New York). She claims to be Catholic but her actions are closer aligned with Scientology than Catholicism. Sue Basko is roughly equivalent (but superior to) what might happen if Mike Sandy and Daniel Brandt mated.
    Whether you’re a potential target of swatting and need to be reminded to never allow the police inside, need someone to harass the family members of those internet terrorists known as the Rustle League, or are just being bullied by The Man, Sue Basko is the only Internet Lawyer you will ever want to call.

    Well, Basko was this completely spaztic fucktard who we were all lol’oing at when this aaronsocio scrub got arrested. I came up with the idea to email her saying that we are aaronsocio’s lawyer and that her services are no longer needed. She flipped out and eventualy ginger brooks told her that it was us so she made like 50 blog posts about us one in particular saying that a transgendering man was trying to steal her jewgold which spiraled into epic fucking lulz. After that she came after f0rsaken got got her dawks dropped including ssn and continued to make blogposts as we harassed her and I made sock accounts to trick her and get into her timeline by making her believe that I was someone working against the Rustle League. As of now, she just subtweets us saying how antisemitic we are and how we are going to hell for masturbating and being criminals online
    Yeah, and now she’s going on about some shit about making a video with this fucking autist who sounds like the guy who sucks dicks for cheeseburgers in cartoons.„

    —Shm00p’s take on the Rustle League/Basko saga.

    Basko invokes Godwin’s Law, because making fun of Sue Basko is totally the equivalent of killing 6 million Jews.

    During the Occupy Wall Street protest, our favorite undisputed queen of the legal realm spent a lot of time weeding out FBI plants among the people who were actually there to protest, even though, according to her, her own brother Gabriel is an FBI agent. It’s really too intricate to lay out in this article without making the more ADHD-addled readers get bored and search for the Offended page, so all of Sue’s deathless prose concerning her anti-COINTELPRO work.

    IRL Harrassment Service

    For those with especially persistent cyberbully problems, Sue will go the extra mile and turn to extrajudicial means, as any good lawyer would. However, what separates Sue from the rest of the pack, is that in addition to e-mailing the cyberbully’s parents, she has been known to sub-contract out to IRL witches and have hexes placed on specific targets. In the cases that have gone public, the hexes have been performed by no less a figure than The Second Coming of Jennifer Emick herself, Kamonra. To provide an analogy that veteran EDiots may understand, Sue plays Daniel Brandt to Kamonra’s Amorrow in this dynamic duo of Internet justice.

    Work with convicted felons

    Another of Basko’s henchmen is a relative nobody and convicted felon named Joseph A Camp. In 2009, Joseph and a classmate decided to RAT boxes on their University of Central Missouri’s network so that they could add funds to their college accounts, change grades, and steal/sell databases. Naturally, since they were skiddie fucktards who had only been on HackForums for 3 weeks, and thus didn’t know the first thing about hiding behind 7 proxies, they were immediately fucked in the ass in the back of the partyvan, then shipped off to prison for more nonconsensual buttsex.

    Occupy Peace

    Bright side of life
    Occupy Peace is a crappy blog where Sue Basko offers advice on how to organize a peaceful protest or occupation in the United States. She frequently derails her own blog with unfunny off-topic posts because she lacks self-control and doesn’t respect her readers who don’t care about personal drama. She desperately hints to journalists that she wants media coverage, not so she can help others exercise their freedom of speech, but instead to cry about people saying mean things to her.

    “If any journalists wish to cover this story, I have vast amounts of evidence of all I am writing about, including thousands of screen shots, pictures, recordings, videos, and more. I can also provide the names and other info on many of the perpetrators.„

    —Sue Basko, a desperate plea for attention.

    Sue Basko has issues with self-confidence and writes delightful walls of text detailing what a wonderful “bright side of life” type of person she is, making it clear that violence and pornography are immoral. The amount of effort she puts into making herself look good only proves that she is extremely self-centered and very insecure about her image. Susan should seek the assistance of a trained professional and become a survivor of her shortcomings.

    Professional victim
    After Sue Basko manages to talk about something other than herself, she begins communicating with her claws and fangs, revealing a deep hatred for Encyclopedia Dramatica, Rustle League and Doxbin. At this point her writings read like a liberal’s wet dream of white middle-class Americans. That’s correct, those who contribute to Encyclopedia Dramatica don’t understand satire and are definitely racist.
    Susan insists that she’s been attacked over the last couple years despite no prior dealings with these sites or trolls. What she will never acknowledge is that she goes out of her way to draw attention to herself by writing off-topic rants on her blog and tweeting like a crybaby on a daily basis. The only way Sue Basko maintains what little sanity she has left is to convince herself that she is a victim, because without that crutch, she would be admitted to the nearest psychiatric ward.

    “They hold a type of malicious racism and antisemitism that I thought had long ago disappeared from society. I am continually shocked to see their displays of the most vicious, repugnant forms of racial hate, of the sort I associate with the KKK or with the days of Nazi Germany.„

    —Sue Basko, oh that’s original.

    Expert advice
    Susan worries that nobody takes her seriously and to compensate for that she repeatedly mentions that in two states she is a licensed attorney. After doing extensive research, our e-lawyer has reached the conclusion that subjects of articles on Encyclopedia Dramatica tend of the “smart, nice, good people.” Susan also warns that contributing to Encyclopedia Dramatica or linking to an article is a crime.
    Being a computer expert, Sue Basko has determined that people who visit Encyclopedia Dramatica will immediately have malware installed onto their computer. She goes on to speculate that said malware may be used to take control of webcams, log key presses or install a botnet.
    Enemies of the Lulz can finally rejoice, Sue Basko discovered Encyclopedia Dramatica’s offended page and offers EDiots some free legal advice. The images there are not only shocking and horrific, but also illegal! She is probably referring to the picture of Limecat.
    The purpose of Encyclopedia Dramatica isn’t to document internet drama, but to harass, coerce and extort its victims. According to Sue Basko anyways, and she isn’t going to stand by and watch as people’s lives, especially hers, are destroyed by the hate wiki. She’s made it clear she knows the identities of various contributors, but is withholding this information pending a DOJ and FBI investigation. Hopefully justice will indeed be served, because Susan has informed us that the harm done to her by Encyclopedia Dramatica can never be undone. Sue Basko is also a medical expert and has determined her health has also been damaged beyond repair, all because some jackass on the internet said something mean about her.

    Sue Basko paints a very polarizing picture of herself as a humanitarian. While she crafts the image of herself as a hero for anyone who feels they’re a victim of stalking, copyright violation, or harassment, she takes a very questionable stance toward supportive parents of children with serious mental diseases.


    Many parents today want a diagnosis of autism spectrum for their child, not only because there is a great deal of funding allocated for services for those children, as the news article explains, but also because this qualifies the child or family to collect a good SSI payment each month.

    Basically, Sue believes that parents are actually going out to get autism diagnosis for their kids just so they can reap the government SSI benefits that are paid to these mentally disabled children. Are all these kids pretending to be aspies just so their parents can make an easy living, Sue?
    Once she was called out for her atrocious insensitivity and hypocrisy, she proceeded to delete her comment, use her personal Twitter account to defame the woman who called her out on the comment, and insist that the entire thing was made up. Unfortunately for Sue, the woman had taken a screenshot of the disgusting comment before she could remove it.

    Sue was also called out for this by another person on her Facebook page, and she decided she would attempt to defame the person (who was legitimate and had a genuine concern) by calling them a bully with a fake name attempting to troll her. Sue ended up deleting this comment as well, but not before it was also saved in a screenshot.

    So aside from losing her image as a good person with compassion for fellow humans, she is now exposing herself as a paranoid drama queen who thinks anyone who opposes her diluted views on life are bullies, fakes, or trolls, and need to be promptly reported to the FBI.

    Copyright thief

    Sue specializes in copyright claims, and has extensive first hand experience in stealing the intellectual property of others. Basko Law™ will work hard to prevent others from stealing your hard work, utilizing the knowledge she has gained from countless years of making minor edits to other people’s work and claiming it as her own. The cover photo of her former Twitter account is a perfect example of her work in action.

    Sue Basko: Tree Whisperer

    Did you know that Sue is an accomplished artist herself? She’s the mastermind behind the chart-topping smash hit “You Know The Trees.” The song is an epic tale of meeting a well-traveled man who talks to trees and shares their glorious insight with the listener. It would be a shame if we spoiled this masterpiece for you any further, so prepare yourself to experience the greatest song ever made, sang by Basko herself.

    If you’re like most people and can’t understand what the hell Sue is saying in this psychedelic drug-inspired song, FEAR NOT. The lyrics have been transcribed so you too can swallow a bag of magic mushrooms and sing along. Don’t forget to have a chat with some trees afterward!
    Sex Life

    It has also long been suspected that Sue is a serial masochist and only acts out online in an attempt to gain sexual gratification from being demeaned by thousands of random, anonymous strangers. As a result, experts theorize that Sue has developed a myriad of sexual fetishes and fantasies that would gain her immediate social ostracization if she were to ever allow these to be made known to the general public. Some of these theories include:
    Since the estimated age of 14, Sue has had continuous fantasies of being sexually assaulted. This is most likely a result of Sue’s need to develop an interest in human sexual relations while at the same time coping with the crippling depression associated with her low self-esteem.
    Sue Basko often does a poor job of cleaning her anus after defecation as the constant potential of being anally raped encourages her to maintain a dirty anal cavity with the intent of giving “shitdick” to whomever may find themselves inside of her.
    Sue has been known to hang around various “glory holes” located in the Chicago area.
    Sue has lost countless marbles, wooden pencil erasers, and other such objects in her body during masturbation.
    Sue Basko often sneaks into public men’s rooms so that she may rub her body against the unwashed toilet seats to gain sexual gratification.
    Sue has created and distributed several recordings of her engaging in bestiality. These revolving films are too immoral to be linked here, but know that they have been forwarded to American authorities.
    Sue Basko has volunteered at homeless shelters where she mixed her own pubic hair into the meals served to unknowing homeless men.
    Sue Basko has been known to use “bath salts” as an aphrodisiac.
    Unfortunately for Sue, even the most vile of perverts find her too repugnant to even consider fornicating with.
    Copypasta

    What the fuck did you just fucking say about me, you little bitch? I’ll have you know I graduated Magna cum Laude and earned my Juris Doctor at Southern Illinois University School of Law, and I’ve been involved in numerous COINTELPRO operations on Occupy and Anonymous, and I have written over 300 cease and desist letters. I am trained in internet lawfare and I’m the top lawyer of the entire Internet. You are nothing to me but just another FBI informant. I will sue your balls to the wall with fabricated evidence the likes of which has never been seen before on Twitter, mark my fucking words. You think you can get away with saying my name over the Internet? Think again, fucker. As we speak I am contacting my secret network of autistic script kiddies across the USA and your chat logs are being reported to the FBI right now so you better prepare for the defamation lawsuit, troll. The defamation lawsuit that wipes out the pathetic little website you call Encyclopedia Dramatica. You’re fucking sued, kid. I can be anywhere, anytime, and I can sue you in over seven hundred ways, and that’s just with this Twitter handle. Not only am I extensively trained in media law, but I have access to the entire archive of Twitter and I will use it to its full extent to wipe your miserable ass off the face of the Internet, you little shit. If only you could have known what unholy retribution your little “clever” comment was about to bring down upon you, maybe you would have locked your Twitter account. But you couldn’t, you didn’t, and now you’re paying the price, you goddamn idiot. I will shit fury all over you and you will drown in it. You’re fucking Basko’d, kiddo.

  8. My Heart in Prison

    The ugly prison was dark and dank.
    Solitary cells lined up on each side.
    I paced up and down the corridor Saw each prisoner his face hide.
    I knew them all, for I put them there, Uncle John who stole half my earnings,
    My teacher who failed me just to spite me,
    My neighbour reported me with warnings.
    A writer who jealously always blocked me,
    My lawyer whom I caught on me spying
    A woman who sent me many insulting messages,
    Even my cheating wife was there crying.
    Where is this prison you might well ask?
    Why it’s locked up within my heavy heart.
    And the worst of it all, there’s no way out,
    What could I do to erase all and my life restart?
    Only one way to rid the heaviness of my heart.
    To learn the true way to forgive all sins,
    Truly forget all useless wishes of revenge
    Then perhaps with the Lord’s help a new life begins.
    Prisoners’ Rights | American Civil Liberties Union
    https://www.aclu.org/issues/prisoners-rights

    Partnership for Drug-Free Kids – Where Families Find Answers
    http://www.drugfree.org/

    ********************************************************************************
    Words I don’t have nothing really to post right now However, I will read your poems first, In hopes inspiration follows and falls into place Please do not think I’m here to drop a bomb It’s just a fair warning on how, I’m here “To Rock Your World” Allow me kindly to introduce myself, I’m as Sweet as they come I’m not the enemy, but a poet friend In time you will see, and hunger my name I’m not new to any poetry world In time you will notice I am not your average girl I will play fair, If you do I’ll be true to you, if you are true I’m not here to judge what I can’t see However, I will reply and enjoy the imagery This Destroyer is not like a lawyer However, mess with me or my sis I’ll chew you out like the D.E.A. I’ll mess with your mind A brain storm cleaning you from bottom to top I am the POET DESTROYER Admiring those who love the world of wordplay Today, I will end my WORDS With the quote I’ve always wanted to say “I am no poet!”

    Law Poetry | There’s poetry in the law. Kind of.
    http://www.lawpoetry.com/

    Multidisciplinary Association for Psychedelic Studies: MAPS http://www.maps.org/

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