P. v. Heller
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[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.
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