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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                 C067514

         v.                                                                      (Super. Ct. No. 09F07792)

LEROY ALLEN HELLER,

                   Defendant and Appellant.




         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.




                                                             1
       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 6541 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




1 Undesignated statutory references are to the Penal Code.


                                             2
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 domestic violence between the mother and 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

                                             3
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

                                             4
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.”
       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.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




2 The mother admitted there was pornography on her home computer, which was in her
bedroom.

                                             5
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.



                                             6
          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 5653 shows two fingers spreading the vaginal 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




3 Defendant incorrectly identifies the pertinent photograph as image 566.


                                                7
under Evidence Code section 352.4 The 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.”
       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.)




4 We do not address defendant’s Evidence Code section 352 contention because he does
not support it with argument on appeal. (People v. Jones (1998) 17 Cal.4th 279, 304.)

                                              8
       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.



                                             9
       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. (People v.
Homick (2012) 55 Cal.4th 816, 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.

                                             10
       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. (People v.
Morrison (2004) 34 Cal.4th 698, 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.

                                              11
       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. (People v.
Ramos (1997) 15 Cal.4th 1133, 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

                                            12
that conduct. [¶] However, evidence that the defendant fled or tried to flee cannot prove
guilt by itself.” 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.]” (People v. Abilez (2007)
41 Cal.4th 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.



                                                 13
       “ ‘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.” [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



                                               14
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 time” 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.5 Counts twelve, thirteen, eighteen, nineteen, twenty, twenty-two,



5 We do not address a claim relating to count twenty-four in sections VII and VIII of
defendant’s opening brief because the claim is not supported by argument. (People v.

                                              15
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 photographs6 and contends they do not depict “an act
of 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. (Id. at pp. 330-331.) But the court in Shields held that the plain language of
section 311.4, subdivision (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. (Shields, supra, 199 Cal.App.4th at p. 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


Jones, supra, 17 Cal.4th at p. 304.) Defendant may have inadvertently included count
twenty-four in the headings to sections VII and VIII of the opening brief; the headings to
those sections in defendant’s reply brief do not reference count twenty-four.
6 Images 544 and 545; 550 and 551; 551 and 552; 552 and 553; 554 and 555; 555 and
556; 559 and 560; 562 and 563; and 543 and 544.

                                            16
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.7
                                           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.



7 We express no opinion about the application of section 311.4, subdivision (c) to other
forms of media, such as a motion picture or video of a single session involving child
pornography, as such facts are not presented here.

                                            17
       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.]” (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.
(Ibid.) 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. (People v. Jones (2002) 103 Cal.App.4th 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.



                                             18
       In his reply brief, defendant cites People v. Hertzig (2007) 156 Cal.App.4th 398
(Hertzig) and People v. Manfredi (2008) 169 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 Manfredi involve convictions for
possession of child pornography, a crime distinguishable from production of child
pornography. (People v. Haraszewski (2012) 203 Cal.App.4th 924, 945; People v.
Shields, supra, 199 Cal.App.4th at p. 332.) And Hertzig and Manfredi do not discuss the
application of section 654.
       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; Perez,
supra, 23 Cal.3d at p. 553; see 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. (People v. Trotter,
supra, 7 Cal.App.4th 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.




                                             19
                                            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. (People v. Siko (1988) 45 Cal.3d
820, 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

                                            20
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
654.8 The 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



8 The parties misidentify the count based on image 565 (two fingers spreading the
vaginal opening of a girl) as count thirty-two. Counts nine and thirty-one are the counts
predicated on image 565.

                                            21
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 Department of Corrections and
Rehabilitation.


                                                              MAURO                     , J.


We concur:


              NICHOLSON              , Acting P. J.


              HULL                   , J.


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