P. v. Heller
Filed 11/14/13 P. v. Heller CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
LEROY ALLEN HELLER,
Defendant and Appellant.
C067514
(Super. Ct. No. 09F07792)
A jury convicted defendant Leroy
Allen Heller of sexual penetration of a child 10 years of age or younger
(counts one and two), committing a lewd and lascivious act on a child under 14
years of age (counts three through ten), and using a minor to pose for pornography
(counts eleven through thirty-two). The
trial court sentenced defendant to a determinate term of 98 years eight months in
prison and an indeterminate term of 60 years to life in prison.
Defendant now contends (1) the trial
court abused its discretion in allowing the grandmother to identify defendant’s
fingers in a photograph; (2) a detective should not have been permitted to
testify that he thought the mother was lying during an investigative interview;
(3) the trial court improperly excluded defendant’s out-of-court statement explaining
why he left Sacramento, because the statement was admissible under the
state-of-mind exception to the hearsay rule; (4) there was insufficient
evidence to support instructing the jury with CALCRIM No. 372 [defendant’s
flight]; (5) the count six conviction for lewd and lascivious conduct involving
a green sex toy must be reversed because there was insufficient evidence of
more than one act with the green sex toy; (6) the count eight conviction
for lewd and lascivious conduct involving a red object must be reversed because
there was insufficient evidence of more than one act with the red object; (7) some
of the convictions for using a minor to pose for pornography must be reversed
because certain pairs of photographs do not depict different poses; (8) some of
the sentences for using a minor to pose for pornography must be stayed pursuant
to Penal Code section 654
name="_ftnref1" title="">[1] because the photographs do not depict
different poses; (9) additional sentences must be stayed pursuant to section
654 because they are based on the same conduct; and (10) insufficient evidence
supports the count thirty-one conviction for using a minor to pose for
pornography, because that charge was based on a blurry image of an arm.
We conclude (1) the trial court did
not abuse its discretion in allowing the grandmother to identify defendant’s
fingers in a photograph, because the predicates for admission were present; (2)
defendant forfeited his challenge to the detective’s testimony because defendant
did not object to the testimony in the trial court; (3) defendant did not preserve
his claim of error based on the state-of-mind exception to the hearsay rule because
he did not assert the exception at trial; (4) substantial evidence supported
instructing the jury with CALCRIM No. 372; (5) substantial evidence supports the
count six conviction involving the green sex toy; (6) we will reverse the count
eight conviction involving the red object, however, because there is
insufficient evidence to support that conviction; (7) substantial evidence
supports the convictions for using a minor to pose for pornography, and the
People were not required to prove there was a different pose in each photograph;
(8) it was not error to decline to stay the sentences imposed for using a minor
to pose for pornography, because there is substantial evidence that the crimes were
independent of one another; (9) the sentences imposed on count six [lewd and
lascivious acts] and on counts eleven, twenty-seven and thirty-one [using a
minor to pose for pornography] must be stayed pursuant to section 654; and (10)
substantial evidence supports the count thirty-one conviction for using a minor
to pose for pornography.
BACKGROUND
The minor lived with her mother, her
half-sister, and her mother’s boyfriend (defendant) from 2006 through 2008. Defendant cared for the minor when the mother
was not home.
Child Protective Services (CPS) removed
the minor from the mother’s home in December 2008 because of
defendant, and the minor began living with her grandmother. One day later, defendant went into hiding with
the half-sister. Defendant testified
that he left because he was worried CPS might also take the half-sister. He initially stayed with his family in
Marysville, but the mother subsequently helped him travel with the half-sister
to South
Dakota,
where the mother’s son lived. Defendant
and the half-sister stayed in South Dakota from March through August 2009.
Meanwhile, Pamela Aragon and Amber Bragg
lived with the mother during the summer of 2009. Aragon and Bragg, along with a man named Michael
Silence, stole some belongings from the mother’s apartment. During the theft, Bragg found a SanDisk brand
camera memory card taped to the bottom of a computer keyboard. The memory card contained photographs showing
the vaginal area of a child. Bragg and
Aragon recognized the minor as the child in some of the photographs.
Silence and Aragon brought the memory card to the minor’s grandmother. The grandmother viewed the photographs on the
memory card, recognized the minor in some of them, and contacted the police.
Detective Vincent Recce of the
Sacramento County Sheriff’s Department’s high tech crimes task force testified
about People’s exhibit 16, which is a report showing each photograph recovered
from the memory card, along with information associated with each photograph, such
as image numbers and the date and time of each photograph. Twenty-two photographs were taken during a 29-minute
session on September 1, 2008.
Law enforcement also recovered two
deleted photographs from the camera memory card. One photograph was taken on June 10, 2008,
and shows what appears to be a green sex toy pressed against a girl’s labia. The other deleted image was taken in July
2007 (around the same time defendant, the minor and the half-sister visited
Georgia), and depicts the mother’s granddaughter at a lake property in Georgia.
Deputy Cory Newman interviewed the
minor in July 2009 in response to a CPS report concerning child
molestation. The minor told Deputy
Newman that defendant made her watch “nasty movies†and take her clothes off. She also reported that she had seen defendant
put his fingers and penis inside her mother, and defendant did the same thing
to the minor when her mother was not home.
The minor said when they watched nasty movies, defendant tried to put
his penis inside her but his penis was too big and her hole was too small. She said defendant also put a green
mechanical penis inside her but could not get it in. According to the minor, defendant sometimes
touched her through her clothes and rubbed her vagina, and sometimes inserted his
fingers in her vagina, but defendant never took photographs of her without her
clothes on. She related that defendant
told her not to tell her mother about what he was doing because the mother would
“freak out†and defendant did not want to go to jail. The minor said she never told her mother because
she did not want her mother and defendant to fight and did not want her mother to
“freak out.â€
A specialist at the special assault forensic
evaluation (SAFE) facility interviewed the minor in August 2009. A recording of the interview was played at
defendant’s trial. The minor initially
denied that anyone touched her tee tee, a term she used for male and female
genitalia, but subsequently disclosed that defendant touched her tee tee. She said defendant touched her vagina 27 or
29 times, touched her vagina with “mechanicals†62 times, and took pictures of
her vagina 10 times.
The minor reported the following
during the interview: Defendant began
touching her vagina when she was eight years old. The minor was nine years old when defendant
last touched her. Defendant made her watch
pornographic movies, took off her clothes and his clothes, and touched her vagina
while she was on his bed. Defendant used
his hand to touch her vagina on the outside.
He also used a big green mechanical thing to wiggle the outside of her vagina,
then used a small red mechanical penis on the outside of her vagina. She saw defendant’s penis and it looked like
the mechanical thing. On another
occasion, defendant’s penis touched the outside of her vagina. Defendant also showed her pictures of naked
ladies on the television.
name="_ftnref2" title="">[2] The
minor never told anyone what happened with defendant because it was a
secret. Defendant said he did not want the
mother to “freak out†and he might get in trouble.
The mother learned in August 2009 that
the minor had accused defendant of molesting her, but the mother still helped
defendant hide from law enforcement officials.
Defendant found out that the minor accused him of molesting her in late
August or early September 2009. He left
South Dakota in August 2009 and moved to Georgia. Defendant was arrested in Georgia in October
2009.
Although she was reluctant to talk
about what happened to her because she was embarrassed and because defendant
told her not to talk about those things, the minor testified at trial that
defendant touched her vagina more than once and showed her his penis. In addition, she said the statement in her
diary that defendant “had sex on†her was true.
The mother admitted owning the green
and silver sex toys depicted in the photographs presented by the prosecution. Defendant knew where the mother kept her sex
toys.
Defendant admitted he took nude
photographs of the mother with sex toys, but he denied taking any nude
photographs of the minor. He said if he
had taken the photographs of the minor he would not have left the camera memory
card in his apartment where someone could find it. He denied that he ever touched the minor’s vagina
with his penis, put his fingers inside the minor’s vagina, rubbed the minor’s vagina
through her clothes, intentionally showed the minor his penis, or had the minor
watch pornography with him. He said he
never directed the minor to use any kind of mechanical device on her vagina. But defendant admitted the brown recliner shown
in a photograph from the camera card was a recliner in his living room when he
lived with the minor. Defendant agreed
that the person touching the minor in the photograph was in his apartment
because the photograph showed the minor sitting on defendant’s recliner.
Robin Morse testified as a character
witness for defendant. According to
Morse, the mother asked for help to fabricate molestation charges against
defendant so that the mother could obtain custody of the half-sister. The mother admitted telling Morse that in
order to get her children, the mother had to get rid of defendant. But the mother denied asking Morse to help
her frame defendant for child
molestation.
A jury convicted defendant of sexual
penetration of a child who is 10 years of age or younger (§ 288.7, subd. (b) --
counts one and two), committing a lewd and lascivious act on a child under 14
years of age (§ 288, subd. (a) -- counts three through ten), and using a minor
to pose for the purpose of creating pornography (§ 311.4, subd. (c) -- counts eleven
through thirty-two). The trial court
sentenced defendant to a determinate term of 98 years eight months in prison
and an indeterminate term of 60 years to life in prison.
DISCUSSION
I
Defendant contends the trial court
abused its discretion in allowing the grandmother to identify defendant’s
fingers in a photograph.
Image 565
opening of a girl. The photograph is the
basis of the prosecution’s case on count nine [lewd and lascivious act] and
count thirty-one [using a minor to pose for pornography]. Prior to trial, defendant moved in limine to
exclude the grandmother’s prior statement to law enforcement that, after
looking at image 565, she recognized the fingers in the photograph as belonging
to defendant. Defendant argued in limine
that the grandmother’s opinion lacked foundation, was speculative and was unduly
prejudicial. The trial court denied the
motion in limine, saying whether the grandmother could identify defendant’s
fingers was an issue relating to the grandmother’s credibility.
Defendant renewed his objection to the
grandmother’s testimony during trial on the grounds that it lacked foundation, amounted
to speculation, and should be excluded under Evidence Code section 352.
trial court allowed the grandmother to identify the fingers in image 565 as
belonging to defendant. The grandmother described
her prior contacts with defendant and said that she had noted defendant’s
well-manicured fingernails during those contacts because “[i]t [was] something
that you noticed, you know, especially in a man.â€
Defendant now claims the
grandmother’s testimony did not assist the jury, arguing that well-manicured fingernails
are an insufficient foundation for the grandmother’s lay opinion that the fingers
in image 565 belonged to him.
Nonexpert testimony about the
identity of a person depicted in a photograph is admissible if (1) the
identification is rationally based on personal knowledge of the defendant’s
appearance at or before the time the photograph was taken, and (2) the
testimony aids the trier of fact in determining the identity of the person
shown in the photograph. (Evid. Code, § 800;
People v. Mixon (1982) 129 Cal.App.3d
118, 127-128.) “Where the photo is
unclear, or the defendant’s appearance has changed between the time the crime
occurred and the time of trial, or where for any reason the . . . photo
is not conclusive on the identity issue, the opinion testimony of those persons
having knowledge based upon their own perceptions [citation] of defendant’s
appearance at or before the time the crime occurred is admissible on the issue
of identity, and such evidence does not usurp or improperly invade the province
of the trier of fact. [Citations.]†(People
v. Ingle (1986) 178 Cal.App.3d 505, 513; see also People v. Perry (1976) 60 Cal.App.3d 608, 613-615.) The trial court’s admission of lay opinion
testimony will not be disturbed on appeal absent a clear abuse of
discretion. (People v. Mixon, supra, 129 Cal.App.3d at p. 127.)
The grandmother’s personal knowledge
of the appearance of defendant’s fingers in 2008 and her examination of image
565 provide adequate foundation for her identification. Image 565 was taken in September 2008. The grandmother had regular contact with
defendant throughout 2008. She took note
of the appearance of defendant’s fingernails during her contacts with him.
The identity of the person whose
fingers are depicted in image 565 is not self-evident. As defense counsel pointed out in his closing
remarks to the jury, the fingers shown in image 565 bear no scars or
tattoos. Additionally, as defense
counsel also pointed out, the skin color of the fingers in image 565 was darker
than defendant’s skin color at trial. Under
the circumstances, the grandmother’s testimony could help the jury identify the
person whose fingers are shown in image 565.
(People v. Ingle, supra, 178
Cal.App.3d at p. 513; People v. Mixon,
supra, 129 Cal.App.3d at pp. 125, 131-132.)
The trial court did not abuse its
discretion in admitting the grandmother’s testimony because the predicates for
admitting that lay identification opinion testimony were present.
II
Defendant next claims the trial
court erred in permitting Detective Linke to testify that the mother was
untruthful during an investigative interview.
Detective Linke testified that he terminated
an investigative interview with the mother because he did not think she was
being truthful about defendant’s location.
Detective Linke had information about defendant’s whereabouts. He believed, based on information he had
received, that the mother knew where defendant was hiding. He asked her about defendant’s location and,
according to Detective Linke, she did not answer his question truthfully. According to defendant, the net effect of
Detective Linke’s statement was “to offer an unqualified opinion on [the
mother’s] credibility,†thereby denying defendant a fair trial.
Defendant’s failure to object at
trial to the specific testimony he now challenges forfeits his appellate claim. (Evid. Code, § 353; People v. Williams (2008) 43 Cal.4th 584, 620.) Defendant objected on relevance and Evidence
Code section 352 grounds when Detective Linke testified that he made the decision
to terminate the mother’s interview. But
there was no objection when Detective Linke was asked why he terminated the
interview. In response to that question,
Detective Linke said he thought the mother was untruthful. The portions of the record defendant cites in
his reply brief do not show an objection to Detective Linke’s statement that he
thought the mother was untruthful.
Even if the claim was not forfeited,
however, any error in admitting Detective Linke’s testimony was harmless. The mother admitted lying to Detective Linke
about defendant’s location. In addition,
defendant attacked the mother’s credibility.
Defendant argued that the mother took the pornographic photographs of the
minor and planned to use the photographs to fabricate molestation charges against
defendant. Defendant repeatedly told the
jury there was no reason for Morse to lie about the mother’s plan to frame
defendant, implying that the mother lied when she denied asking Morse for help
in fabricating charges against defendant.
In addition, the trial court
instructed the jury that the jury alone determines the credibility of witnesses
and the jury may reject the opinion of a witness. It is not reasonably likely the jury
understood that it need not independently assess the mother’s credibility. We presume the jury followed the trial
court’s instructions. (
879.) Defendant does not demonstrate
that reversal is required based on Detective Linke’s testimony.
III
Defendant further contends the trial
court improperly excluded defendant’s out-of-court statement explaining why he
left Sacramento, because the statement was admissible under the state-of-mind
exception to the hearsay rule.
Defendant claims he made an
out-of-court statement to Michael Silence that defendant left California
because he did not want CPS to take the half-sister. Defendant wanted Silence to testify regarding
defendant’s out-of-court statement, arguing the statement was relevant because
the prosecution was attempting to use defendant’s flight as evidence of
consciousness of guilt. Defendant said the
out-of-court statement was offered for the nonhearsay purpose of corroborating his
anticipated trial testimony that he fled California to prevent CPS from taking the
half-sister because of the domestic violence, and not because defendant knew he
had molested the minor. The trial court
sustained the prosecution’s objection that the proposed testimony was hearsay.
Defendant now claims his statement
to Silence was admissible under Evidence Code section 1250, an exception to the
hearsay rule for evidence of a person’s then existing state of mind. Evidence of a statement of the declarant’s
then existing state of mind, including a statement of intent, plan or motive,
is admissible when (1) the evidence is offered to prove the declarant’s state
of mind at that time or at any other time when it is itself an issue in the
action; or (2) the evidence is offered to prove or explain acts or conduct of
the declarant. (Evid. Code, §§ 1250,
subd. (a), 1252.) The state-of-mind
hearsay exception requires a showing that the statement was made under
circumstances which indicate its trustworthiness. (Ibid.)
Once again, however, defendant failed
to preserve his claim of error because he did not assert the state-of-mind exception,
or any hearsay exception, at trial. (
724.) Consequently, the prosecution did
not have an opportunity to respond to the contention that the state-of-mind
hearsay exception applied to defendant’s statement, and the trial court had no
opportunity to decide this fact-intensive claim. (People
v. Edwards (1991) 54 Cal.3d 787, 819-820 [determination of whether Evidence
Code section 1250 applies requires examination of peculiar facts of the
individual case].) Nor did defendant establish
a nonhearsay purpose for admitting his statement to Silence.
In any event, defendant does not
show how the record at the time of the trial court’s ruling supports admission
of his hearsay statement under the state-of-mind exception. As the proponent of the statement, defendant
bears the burden of producing evidence sufficient to establish the necessary
foundation for its admission. (
1178.) We do not assume error in the
absence of a record affirmatively supporting such a finding. (Ibid.)
Defendant claims he is entitled to
present a nonincriminating reason for his departure. But the jury heard from defendant, the mother
and the grandmother that CPS removed the minor from the mother’s home because
of domestic violence issues. Detective
Linke and the mother said at the time defendant fled Sacramento, child
molestation allegations against defendant had not been disclosed. Defendant told the jury that he fled because
he was concerned CPS would take the half-sister. Defendant said he did not learn about the
minor’s accusation against him until about five months after he left California. The jury heard ample evidence of an
explanation for defendant’s departure that did not point toward a consciousness
of guilt. The trial court did not abuse
its discretion by excluding defendant’s statement to Silence. (People
v. Smith (2003) 30 Cal.4th 581, 628-629 [in a case where the defendant
sought to admit an audio recording of his jailhouse conversation with his wife
to show remorse, the Supreme Court found no abuse of discretion in excluding
the evidence in part because the defendant had ample opportunity to present
other evidence of remorse].)
IV
Defendant also claims there was
insufficient evidence to support instructing the jury with CALCRIM No. 372
[defendant’s flight]. The trial court
instructed the jury pursuant to CALCRIM No. 372 as follows: “If the defendant
fled or tried to flee immediately after the crime was committed or after he was
accused of committing the crime, that conduct may show that he was aware of his
guilt. [¶] If you conclude that the defendant fled or
tried to flee, it is up to you to decide the meaning and importance of that
conduct. [¶] However, evidence that the defendant fled or
tried to flee cannot prove guilt by itself.â€
In defendant’s view, the evidence showed that he left California to
prevent CPS from taking the half-sister and to defuse his volatile relationship
with the mother, not to flee prosecution for child molestation.
“ ‘A flight instruction is
proper whenever evidence of the circumstances of [a] defendant's departure from
the crime scene . . . logically permits an inference that his
movement was motivated by guilty knowledge.’
[Citation.]†(
472, 522; see also People v. Visciotti
(1992) 2 Cal.4th 1, 60-61.) Here, while the
jury could attribute an innocent explanation for defendant’s flight, it could
also reasonably infer that defendant fled in order to avoid arrest for his
unlawful conduct with the minor, and that his leaving showed consciousness of
guilt.
Substantial evidence supports the
finding that defendant molested the minor and took sexually explicit
photographs of her. Defendant left his
apartment and went into hiding the day after CPS took the minor out of the
mother’s home. Defendant learned in late
August or early September 2009 that the minor accused him of molesting her, and
he continued to hide. In fact, he moved
from South Dakota to Georgia in August 2009.
On this record, there was no instructional error.
V
Defendant argues his count six
conviction for lewd and lascivious conduct involving a green sex toy must be
reversed because there was insufficient evidence of more than one act with the
green sex toy.
Counts five and six both alleged
lewd and lascivious conduct involving the green sex toy. Count five was based on the “first time†defendant
used the green sex toy to touch the victim’s vagina, and count six was based on
the “last time†defendant used the green sex toy to touch the victim’s
vagina. Defendant says the evidence does
not support convictions for separate acts involving a green sex toy.
“ ‘In reviewing a challenge to
the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we “examine the whole record in the
light most favorable to the judgment to determine whether it discloses
substantial evidence -- evidence that is reasonable, credible and of solid
value -- such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.â€
[Citations.] We presume in
support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence. [Citation.] . . . We do not reweigh evidence or reevaluate a
witness’s credibility. [Citation.]’ †(People
v. Nelson (2011) 51 Cal.4th 198, 210.)
Section 288, subdivision (a)
provides that “any person who willfully and lewdly commits any lewd or
lascivious act . . . upon or with the body, or any part or member
thereof, of a child who is under the age of 14 years, with the intent of
arousing, appealing to, or gratifying the lust, passions, or sexual desires of
that person or the child, is guilty of a felony . . . .†Section 288 is violated by any touching
committed with the intent to sexually arouse either the defendant or the
child. (People v. Martinez (1995) 11 Cal.4th 434, 443, 452.) Causing a child to touch the child’s own
person is sufficient to establish a touching under section 288, subdivision
(a). (People v. Mickle (1991) 54 Cal.3d 140, 176; People v. Austin (1980) 111 Cal.App.3d 110, 114-116.)
One of the deleted photographs on
the camera memory card taken from defendant’s apartment shows what appears to
be a child’s hand pressing a green sex toy against a girl’s labia. That photograph was taken on June 10, 2008,
when the minor was eight years old. The
minor reported that defendant began touching her vagina when she was eight
years old. The mother said the green sex
toy in the photograph belonged to her. This
evidence supports the finding that defendant caused the minor to touch herself with
a green sex toy for the purpose of sexual arousal when she was eight.
The minor also said defendant used a
green sex toy to wiggle the outside of her vagina when she was nine years old. That was the last time defendant touched her
in a sexual manner. The minor’s statement
supports the finding that defendant used a green sex toy to touch her vagina
for sexual arousal on a second occasion.
Accordingly, there was substantial
evidence from which the jury could fairly find two lewd and lascivious acts
involving a green sex toy.
VI
Defendant also asserts the count
eight conviction for lewd and lascivious conduct involving a red object must be
reversed because there was insufficient evidence of more than one act with the
red object. Counts seven and eight both
alleged lewd and lascivious conduct involving the red object. Count seven was based on the “first timeâ€
defendant used the red object to touch the victim’s vagina, and count eight was
based on the “last time†defendant used the red object to touch the victim’s vagina. Defendant says the evidence does not support
convictions for separate acts involving a red object. We agree.
The minor reported that when she was
nine years old, defendant used a small red mechanical object to touch the
outside of her vagina. There is no other
evidence regarding the use of a red object to touch her. Although the minor told the SAFE interviewer
that defendant touched her vagina with “mechanicals†62 times, the minor did
not say defendant used a red object to touch her vagina on more than one
occasion. On this record, there is no substantial
evidence that defendant used a red object more than once to touch the minor’s vagina. The conviction on count eight must be
reversed and the sentence on that count must be vacated.
VII
Defendant further argues that some
of his convictions for using a minor to pose for pornography must be reversed
because certain pairs of photographs do not depict different poses.
twelve, thirteen, eighteen, nineteen, twenty, twenty-two, twenty-three, twenty-seven and twenty-nine
charged defendant with a violation of section 311.4, subdivision (c). That section says a person who knowingly uses
a minor to engage in “posing or modeling†for any image involving sexual
conduct is guilty of a felony. Defendant
identifies certain pairs of photographs
posing or modeling separate from the charged act immediately preceding it.†We conclude section 311.4, subdivision (c)
does not impose a requirement that each photograph involve a substantially
different pose.
In People v. Shields (2011) 199 Cal.App.4th 323 (Shields), a defendant was convicted of three counts of violating
section 311.4, subdivision (c) based on photographs he took of a seven-year-old
girl. (Id. at pp. 325, 328-329.)
The defendant took the photographs on the same occasion but created
three different images involving penetration of the girl’s vagina, masturbation,
and nudity. (Id. at pp. 326, 328.) The
defendant argued on appeal that the production of multiple photographs
involving the same victim on the same occasion involved only one section 311.4,
subdivision (c) violation. (
(c) authorized a conviction for each photograph. (Shields,
supra, 199 Cal.App.4th at p. 331.)
The court added that interpreting section 311.4, subdivision (c) to
authorize multiple convictions for multiple photographs advances the
legislative purpose of section 311.4. (
332.) “When a person creates multiple
photographs of child pornography, the person adds to the market more than the
person who creates one photograph of child pornography. Each additional photograph further exploits
the minor victim, and the Legislature clearly intended to prevent that
exploitation by criminalizing its creation. The Legislature's attempt to end the
exploitation of children by criminalizing the creation of each item of child
pornography can be contrasted to the possession of child pornography.†(Ibid.)
Based on our examination of the
photographs in this case, we conclude defendant committed separate violations
of section 311.4. No photograph
challenged by defendant is a copy of another challenged photograph; each
photograph is different.
The pairs of photographs challenged
by defendant support separate convictions.
VIII
Defendant also contends some of the
sentences for using a minor to pose for pornography must be stayed pursuant to
Penal Code section 654 because the photographs do not depict different
poses.
The trial court imposed consecutive
sentences on the convictions for counts twelve, thirteen, eighteen, nineteen,
twenty, twenty-two, twenty-three, twenty-seven and twenty-nine [using a minor
to pose for pornography], finding that the crimes in those counts were
independent of one another, having occurred at different times and separate
places. None of the imposed sentences were
stayed.
Defendant claims section 654
requires those sentences to be stayed because the evidence does not demonstrate
separate acts punishable under section 311.4, subdivision (c). We rejected the premise of defendant’s claim
in the preceding section. But defendant
also argues that section 654 bars multiple punishments on those counts because the
act upon which each count is based did not involve a separate intent and
objective, and the predicate photographs were taken close in time, with no
opportunity for defendant to reflect on his conduct.
Section 654, subdivision (a)
provides: “An act or omission that is
punishable in different ways by different provisions of law shall be punished
under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more
than one provision.†Although the
statute refers to “an act or omission,†it is well settled that section 654
applies to a course of conduct which constitutes an indivisible transaction. (People
v. Perez (1979) 23 Cal.3d 545, 551 (Perez).) “Whether a course of conduct is indivisible
depends upon the intent and objective of the actor. [Citation.]
If all the offenses were incident to one objective, the defendant may be
punished for any one of such offenses but not for more than one. [Citation.]â€
(Ibid.) “On the other hand, if the evidence discloses
that a defendant entertained multiple criminal objectives which were
independent of and not merely incidental to each other, he may be punished for
the independent violations committed in pursuit of each objective even though
the violations were parts of an otherwise indivisible course of conduct.†(Ibid.,
fn. omitted.)
A defendant's intent and objective
are factual questions for the trial court.
(People v. Coleman (1989)
48 Cal.3d 112, 162.) We review the trial
court's express and implicit factual findings in imposing multiple punishment
for substantial evidence. (
We view the record in the light most favorable to the trial court’s
findings and presume the existence of every fact the trial court could
reasonably deduce from the evidence. (
1139, 1143.)
Substantial evidence supports the
trial court’s finding that the challenged crimes are independent of one
another. Each violation of section
311.4, subdivision (c) was complete -- i.e., defendant used the minor to pose for
a pornographic photograph -- before the next section 311.4, subdivision (c) violation
occurred. The photographs also show a
difference in setting, attire, pose, focus, or use of props. Defendant was not punished for committing a
single act.
In his reply brief, defendant cites
398 (Hertzig) and
Cal.App.4th 622 (Manfredi) for the
proposition that separate clicks of the camera do not, without more, establish
separate intents and objectives.
However, Hertzig and
possession of child pornography, a crime distinguishable from production of child
pornography. (People v. Haraszewski (2012) 203 Cal.App.4th 924, 945;
Cal.App.4th at p. 332.) And
Defendant further argues that he
could not have entertained a separate intent and objective as to each
photograph because the photographs were taken in rapid succession. But even if a defendant commits multiple acts
with the same objective, “a course of conduct divisible in time, although
directed to one objective, may give rise to multiple violations and
punishment.†(People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11;
also People v. Harrison (1989) 48
Cal.3d 321, 325-326, 335-338; People v.
Trotter (1992) 7 Cal.App.4th 363, 366-368; People v. Clair (2011) 197 Cal.App.4th 949, 959-962.)
Here, the challenged convictions are
based on separate and distinct acts by defendant. Although the interval between the taking of each
photograph is short, the trial court implicitly concluded that defendant had an
opportunity to reflect between the taking of each photograph but nevertheless elected
to repeat his crime. (
at p. 368.) This is especially true
where there is a change in the setting of the photographs, in the minor’s attire,
in the focus of the photograph, or in the employment of different props.
The trial court was not required to
stay the challenged sentences pursuant to section 654.
IX
Defendant next claims additional
sentences must be stayed pursuant to section 654 because they are based on the
same conduct.
A
Defendant says multiple sentences
were improperly imposed on counts two, five and six based on the same act. Count two is based on the act depicted in a
photograph showing a green sex toy penetrating the minor’s labia. That act occurred on June 10, 2008, when
the minor was eight years old.
Counts five and six allege that
defendant used a green sex toy to touch the minor on two occasions. As we have explained, the record contains
substantial evidence of two occasions of touching involving a green sex toy. But one of those acts is depicted in the
photograph taken on June 10, 2008. Thus,
the sentence imposed on count six must be stayed pursuant to section 654,
because defendant cannot be punished twice for the act with the green sex toy he
committed on June 10, 2008. (
823, 826.)
The Attorney General contends there
was evidence of multiple acts with a green sex toy, citing the minor’s statement
to the SAFE interviewer that defendant touched her vagina with “mechanicals†62
times. But the mother testified that she
owned various sex toys, including the green one shown in the June 10, 2008
photograph, a couple of silver ones, a red one, “black beads†and one she kept
in a velvet bag. And the minor did not say
defendant used the green sex toy on more than two occasions.
B
Defendant also claims the sentence on
count eleven [using a minor to pose for pornography] constitutes double
punishment for the same act alleged in count two [sexual penetration] and in
counts five and six [lewd and lascivious conduct]. The penetration of the minor’s vaginal
opening by a green sex toy, depicted in the June 10, 2008 photograph, is the
conduct supporting the count eleven conviction.
Because the same act of sexual penetration is the predicate for count two,
the sentence imposed on count eleven must be stayed. (§ 654.)
C
Defendant next urges that counts one,
twenty-six and twenty-seven are based on the same act. Count one alleged that defendant committed an
act of sexual penetration using a silver sex toy on September 1, 2008. Counts twenty-six and twenty-seven alleged
that defendant used a minor to pose for pornography based on image 559 and image
560, which depicted the penetration of the minor’s vaginal opening with a
silver sex toy on September 1, 2008. The
prosecution told the jury that count one was based on a photograph of the minor
with the silver sex toy penetrating her vagina.
Because the act of sexual penetration that forms the basis for count one
also establishes the conduct for the convictions on counts twenty-six or
twenty-seven, the sentence imposed on count twenty-seven must be stayed. (§ 654.)
D
The same analysis compels the
conclusion that the sentence imposed on count thirty-one [using a minor to pose
for pornography] must be stayed pursuant to section 654.
conviction on count nine [lewd or lascivious conduct] was based on image 565,
which was also the basis for the conviction on count thirty-one.
We will direct the trial court to stay
the sentences imposed on counts six, eleven, twenty-seven and thirty-one.
X
Defendant claims there is
insufficient evidence to support the count thirty-one conviction for using a
minor to pose for pornography, because that charge was based on a blurry image
of an arm. The Attorney General agrees
with defendant, but we conclude reversal is not required.
The count thirty-one conviction was based
on image 565, the top photograph shown on page 12 of People’s exhibit 16. The image depicts two fingers spreading the
vaginal opening of a girl. The
grandmother identified defendant’s fingers in the photograph.
Although count thirty-eight was
based on image 564, a blurry image of what appears to be a tattooed arm, that
count was dismissed when the People filed a first amended information.
Defendant’s contention lacks merit.
DISPOSITION
The judgment is modified to reverse
defendant’s count eight conviction for lewd and lascivious conduct, to vacate
the sentence imposed on that count, and to stay the sentences imposed on the count
six conviction for lewd and lascivious conduct and the counts eleven,
twenty-seven, and thirty-one convictions for using a minor to pose for
pornography. The judgment is otherwise affirmed. The trial court is directed to prepare an
amended abstract of judgment reflecting the judgment as modified, and to forward
a certified copy of the amended abstract of judgment to the
MAURO , J.
We concur:
NICHOLSON , Acting P. J.
HULL , J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Penal Code.
name="_ftn2" title="">[2] The mother admitted there was pornography on
her home computer, which was in her bedroom.
