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Name: People v. Saphao
Case #: A103716
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 02/10/2005
Subsequent History: Rev. Granted: 6/8/05 (S132399)

The determination of whether consecutive 25-life terms are to be imposed under the one-strike law should be made by applying the “separate occasion” test under section 667.6. The defendant was convicted of various offenses including rape and penetration with a foreign object, and was sentenced to consecutive 25-life terms under the one strike law. On appeal he argued that the separate terms violated the “single occasion” limitation under Penal Code section 667.61 as clarified in People v. Jones (2001) 25 Cal.4th 98. The Court of Appeal disagreed and held that Jones permitted separate terms under the facts of the case. However, the court concluded that the decision of whether those terms should be served concurrently or consecutively was governed by the “separate occasion” test of section 667.6 rather than the more narrow test described under section 667.61. Furthermore, under Blakely v. Washington (2004) 124 S.Ct. 2531, the determination of whether an offense falls under the provisions of 667.61 must be made by the jury rather than by the judge, but the error in this case was harmless beyond a reasonable doubt. Finally, while the overwhelming weight of appellate authority holds that Blakely does not apply to a decision regarding consecutive terms, any error would have been harmless in this case.