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.
“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.