Full Opinion

Filed 11/4/26 P. v. Tep CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D088687 Plaintiff and Respondent, (Super. Ct. No. v. FWV23002488) KUMPHAK TEP, Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Bernardino County, Michael A. Dauber, Judge. Affirmed. Matthew Aaron Lopas, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Collette C. Cavalier, Kathryn Kirschbaum and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted Kumphak Tep of multiple sex crimes against Jane Doe, including, as relevant here, sodomy by use of force on a victim under the age of 14 (Pen. Code, § 286, subd. (c)(2)(B); count 5) and forcible oral copulation of a victim under the age of 14 (§ 287(c)(2)(B); count 7). The court sentenced Tep to a cumulative prison term of 34 years plus 60 years to life, including full, consecutive sentences for counts 5 and 7 under section 667.6(d). Tep argues the court erred in sentencing him under section 667.6(d) because insufficient evidence supports the trial court’s finding that the offenses underlying counts 5 and 7 were committed against the same victim on separate occasions. Resolving this matter by memorandum opinion (see generally People v. Garcia (2002) 97 Cal.App.4th 847), we disagree and affirm. I. A. Tep, Jane’s stepfather, began to sexually abuse her when she was eight, forcing her to orally copulate him at least weekly. After Jane turned 11, while she was in the shower, Tep would force her to orally copulate him while he touched her vagina and breasts. Once in 2023, when Jane was 13, Tep told Jane to bend over the living room couch. She did, and Tep “forc[ed] his penis in [her] butt.” It hurt, so Jane told him to stop. He then told her to turn around, get on her knees, and “suck[] his penis,” which she did. At trial, Tep denied having sexual contact with Jane. B. At the sentencing hearing, the prosecutor argued counts 5 and 7 occurred on separate occasions, while defense counsel argued the offenses were a continuous act on a single occasion. The trial court concluded the offenses occurred on separate occasions such that Tep must be separately sentenced to full, consecutive terms for the 2 two offenses. In so concluding, it reasoned: “[T]his is really . . . one of the key points . . . he did stop . . . and this gave him an opportunity to reflect. But he did, in this [c]ourt’s view, did reflect. He reflected that he wanted to do a different sexual act. And so keeping that in mind, he told . . . the victim to turn around to . . . get on her knees and suck his penis. That is a change in the activity. It is an adjustment of her body, a repositioning of the victim, and . . . that is an opportunity to reflect. The subsequent action shows that he did [reflect] as he gave her directions.” Accordingly, the court consecutively sentenced Tep to the upper term of 13 years in prison for count 5 and 12 years for count 7. II. Tep contends the trial court erred in sentencing him to full, consecutive sentences on counts 5 and 7 because the two acts occurred on the same occasion, making section 667.6(d) inapplicable. We disagree. Under section 667.6(d)(1), a “full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e)”—and both offenses underlying counts 5 and 7 appear in subdivision (e)—“if the crimes involve separate victims or involve the same victim on separate occasions.” “Under th[is] broad standard . . . , the Courts of Appeal have not required a break of any specific duration or any change in physical location.” (People v. Jones (2001) 25 Cal.4th 98, 104.) “Once a trial judge has found under section 667.6, subdivision (d), that a defendant committed offenses on separate occasions, we 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.” (People v. Garza (2003) 107 Cal.App.4th 1081, 1092.) 3 Here, substantial evidence in the form of Jane’s testimony supports the trial court’s conclusion that section 667.6(d) applies. (See People v. Cortes (1999) 71 Cal.App.4th 62, 71, 73-74 [holding testimony of one witness—even victim of crime—can be substantial evidence].) Jane’s testimony indicates there was time between the acts of sodomy and oral copulation during which Tep gave her affirmative instructions and she had to change her position. This gave Tep an opportunity to reflect and decide to go forward with a separate sex act rather than stop his assault altogether. Tep argues that by the time the conduct giving rise to counts 5 and 7 occurred, each encounter had incorporated multiple sex acts such that “changing positions and changing sex acts was not something new and contemplative.” We are unpersuaded by this logic. Tep also argues the time between the incidents was “very short,” but this is not determinative, as demonstrated by People v. King (2010) 183 Cal.App.4th 1281. There, “under the ruse [of] performing a lawful search,” the defendant—a police officer—penetrated the victim’s vagina with the fingers of one hand. (Id. at p. 1325.) He paused and looked around uneasily when he saw headlights passing by, then inserted the fingers of his other hand into the victim’s vagina. (Ibid.) The court of appeal affirmed the trial court’s conclusion that the officer had sufficient opportunity to reflect between these events such that consecutive sentencing was required. (Ibid.) So too here. We are unswayed by Tep’s attempts to distinguish the facts here from those in King or his invocation of other authorities arriving at a different conclusion. Under the applicable deferential standard of review, we cannot conclude that no reasonable trier of fact would find, as the trial court did here, that the “change” in sexual act to adjust and reposition Jane 4 allowed Tep a reasonable opportunity to reflect. Accordingly, the court did not err in sentencing him under section 667.6(d). III. We affirm. CASTILLO, J. WE CONCUR: BUCHANAN, Acting P. J. BERMÚDEZ, J. 5