Filed 3/28/14 P. v. Threlkeld CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048937

                   v.                                                  (Super. Ct. No. RIF150044)

JOSHUA DAVID THRELKELD,                                                OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Riverside Superior Court, Edward Daniel
Webster, Judge (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.). Affirmed as modified with directions.

                   Richard de la Sota, under appointment by the Court of Appeal, for
Defendant and Appellant.
              Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant

Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley
and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
                                  *           *          *
              A jury convicted Joshua David Threlkeld of 80 crimes, including
kidnapping a child under the age of 14 (Pen. Code, § 207, subd. (b); all statutory citations
are to the Penal Code unless noted), committing lewd acts on a child under age 14 (§ 288,
subd. (a)), committing lewd acts on a child age 14 or 15 by a person 10 years older
(§ 288, subd. (c)(1)), distributing lewd material material to a minor (§ 288.2, subd. (b)),
contacting or communicating with a minor with the intent to commit a specified sex
offense (§ 288.3, subd. (a)), arranging a meeting with a minor intending to engage in
lewd behavior (§ 288.4, subds. (a), (b)), and employing a minor to pose for sexual
photographs (§ 311.4). The jury also found various sentencing enhancement allegations
to be true (§ 667.8 [kidnapping victim under the age of 14 to commit sexual offense];
§ 667.61, subd. (a), (d)(2) [25 years to life term where movement of the kidnapped victim
substantially increased the victim’s risk of harm]; former § 667.61, subd. (b), (e)(5) [15
years to life term where defendant has been convicted of committing an offense specified
in subdivision (c) against more than one victim]; § 675, subd. (a) [one-year enhancement
where defendant committed specified sexual offense with a minor for money or other
consideration].)
              Threlkeld challenges the sufficiency of the evidence to establish one-year
prison enhancements for committing several of the lewd act crimes (counts 9, 13, 20, 24,
& 28) for “money or other consideration” (§ 675). He also claims the trial court violated
section 654 by failing to stay punishment on multiple counts. We invited supplemental
briefs addressing whether sufficient evidence supported Threlkeld’s conviction for a
violation of section 288.2 as charged in count 72 of the second amended information.


                                              2
We agree in part with Threlkeld’s argument concerning section 654. The Attorney
General concedes there is no evidence to support count 72. We therefore modify the
judgment accordingly.
                                             I
                         FACTS AND PROCEDURAL BACKGROUND
              In 2009, Matthew Weinstein, an investigator with the Riverside County
District Attorney’s office assigned to the Sexual Predator Internet Decoy Enforcement
unit investigated a purported online modeling agency called Model 508 Studios.
Weinstein ultimately discovered that Threlkeld, using female pseudonyms (e.g., Sara
Miller), contacted numerous girls between the ages of 12 and 17 online and persuaded
them to send him nude photographs of themselves. He advised the girls these were “art”
photos, there was “no age limit,” and they did not need to tell their parents. Sometimes
he sent the girls nude images and suggested they submit photographs with similar poses.
He arranged meetings for photo shoots with some of the girls, and committed lewd acts
with them, including sexual intercourse with one of the 13-year-old girls. He led the girls
to believe he would pay them for the photos and sexual activity. Threlkeld admitted to
the police he was “addict[ed]” to underage girls.
              In March 2012, a jury convicted Threlkeld of 80 violations involving 41
girls. In April 2012, the trial court sentenced Threlkeld to 41 consecutive terms, either
determinate or indeterminate depending on the violation, and imposed concurrent terms
for most of the other counts. The aggregate sentence was a determinate term of 29 years
and 8 months in prison, and a consecutive indeterminate term of 70 years to life.
              The parties’ briefs relate the facts of each count in detail. We provide
factual and procedural details as germane to Threlkeld’s specific claims below.




                                             3
                                             II
                                       DISCUSSION
A.   Substantial Evidence Supports the Section 675, subdivision (a) Enhancements on
Counts 9, 13, 20, 24, and 28
              Threlkeld contends there is insufficient evidence to support the findings he
violated section 288, subdivisions (a) (counts 9 & 13), and (c)(1) (counts 20, 24, & 28)
for “money or other consideration” within the meaning of section 675, subdivision (a),
because the victims of these counts testified Threlkeld reneged on his promise to pay
them for the lewd acts. We disagree.
              We “review the whole record in the light most favorable to the judgment
. . . to determine whether it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557,
576; Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)
              Threlkeld concedes there was sufficient evidence he promised money to the
victims of counts 9, 13, 20, 24, and 28. These girls testified they expected Threlkeld
would pay them when they agreed to engage in the behavior (touching themselves in
posing for photographs) that gave rise to the lewd acts. For example, Threlkeld told 13-
year-old Desiree (count 9) she would receive $300 to $500 for each lewd photograph.
Threlkeld reneged, however, when Desiree met with him for a photo shoot. Michelle
(count 13) testified Threlkeld took her and her friend Laura, to a house in Hemet or San
Jacinto and took provocative photographs of them partially dressed in various outfits. He
offered to pay Laura and Michelle approximately $200 if they agreed to pose for nude
photographs, but promised to pay more if they had sex with him. At the end of the
photograph session, Threlkeld did not pay Michelle, and paid Laura only $50 for the prior
test photographs, explaining he ran out of money. In November 2007, Threlkeld
contacted 13-year-old Shayla (count 20) through MySpace and promised to pay her if she
                                             4
sent him nude photographs of herself. Shayla complied and e-mailed the photos to
Threlkeld, but he never paid her. Threlkeld contacted 12-year-old Jamie (count 24) in
June 2008 through MySpace and promised to pay her if she sent him nude photographs of
herself, but she never received any money after complying with his request. In May
2008, Threlkeld contacted 13-year-old Maria (count 28) through MySpace and asked her
if she wanted to make $100 a month modeling. She sent him several sets of lewd photos,
but never received payment.
              Section 675 provides “(a) Any person suffering a felony conviction for a
violation of . . . subdivision (a) or paragraph (1) of subdivision (c) of Section 288, . . .
where the offense was committed with a minor for money or other consideration, is
punishable by an additional term of imprisonment in the state prison of one year.”
Threlkeld interprets the phrase “where the offense was committed with a minor for
money or other consideration” to mean the victim actually must receive something of
value and a mere “expectation” of receiving “money or other consideration” does not
satisfy section 675, subdivision (a). The Attorney General responds “each of these young
girls committed the acts with expectation of future payment from appellant, which meets
the definition of ‘consideration.’” We agree with the Attorney General.
              The parties cite no case law defining the phrase “money or other
consideration” as contained in section 675, subdivision (a). Civil Code section 1605
defines consideration as, “Any benefit conferred, or agreed to be conferred, upon the
promisor, by any other person, to which the promisor is not lawfully entitled, or any
prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the
time of consent lawfully bound to suffer, as an inducement to the promisor, is a good
consideration for a promise.” In other words, consideration is the result of a bargain.
(Passante v. McWilliam (1997) 53 Cal.App.4th 1240, 1247.) Although a promise offered
without expectation of payment is an unenforceable promise to make a gift, an act


                                               5
performed in exchange for a promise of future payment constitutes the legal
consideration necessary to create a contract. (Ibid.)
              We must construe section 675 to effectuate the intent of the Legislature,
“with a view to promoting rather than defeating the general purpose of the statute, and
avoid an interpretation that would lead to absurd consequences.” (People v. Jenkins
(1995) 10 Cal.4th 234, 246.) The Legislature intended to punish defendants who commit
lewd or lascivious acts with minors for “money or other consideration” with an additional
year in state prison. As interpreted by Threlkeld, section 675, subdivision (a), would
allow defendants who induced minors to commit lewd acts with the promise of payment
to escape an enhanced penalty by reneging on that promise. We doubt the Legislature
intended the enhancement should apply only to those defendants who kept their end of an
illicit bargain, and allow defendants like Threlkeld to avoid the enhancement. In any
event, the plain words of the statute do not require the defendant to fulfill his promise.
Rather, the enhancement applies when a defendant induces a victim to commit a lewd act
“for money or other consideration.” That is precisely what happened here. Substantial
evidence therefore supports the section 675 findings on counts 9, 13, 20, 24, and 28.1
B.   Section 654 Required the Court to Stay Punishment on Certain Counts
              Threlkeld also argues the trial court violated section 654 by imposing
concurrent terms for the crimes charged in counts 6-8, 9-10, 12, 13-14, 16, 17, 19, 21-23,
25-27, 29-31, 55, 57, 59, 64-65, 67, 69-70, 72-73, 75-76, and 78-79. For the reasons
expressed below, we agree in part.



       1
              Threlkeld cites the appearance of the phrase “money or other
consideration” in section 647, which prohibits solicitation or agreement to engage in
prostitution. He states “the act of prostitution itself requires the performance of a sexual
act for money or some other form of compensation. (Citation.)” He does not adequately
explain how this supports his argument section 675, subdivision (a), requires the actual
receipt of money as opposed to a promise of payment.
                                              6
              Section 654 provides: “(a) 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.” Section 654 applies where a
single act violates more than one statute. (Neal v. State of California (1960) 55 Cal.2d
11, 20 (Neal).) Section 654 also bars multiple punishments where a course of conduct
violating more than one statute constitutes an indivisible transaction. (People v. Saffle
(1992) 4 Cal.App.4th 434, 438.) Whether a course of conduct is a divisible transaction
depends on the intent and objective of the actor. (See People v. McFarland (1962) 58
Cal.2d 748, 762 [defendant who enters a building with the intent to commit theft and
thereafter steals property can be punished only for the greater of the two offenses
committed because defendant’s single objective was to steal property]; People v. Latimer
(1993) 5 Cal.4th 1203, 1215 (Latimer) [judicially created “‘indivisible course of
conduct’” rule allows separate punishment only if the defendant acted with a separate
criminal objective or intent with respect to each “act or omission”].) Where all the acts
and offenses are “merely incidental to, or were the means of accomplishing or facilitating
one objective, [the] defendant may be found to have harbored a single intent and
therefore may be punished only once.” (People v. Harrison (1989) 48 Cal.3d 321, 335;
Neal, supra, 55 Cal.2d at p. 19.) The purpose of section 654 is to ensure that a
defendant’s punishment is commensurate with culpability and that punishment is not
imposed more than once for what is essentially one criminal act. (See Latimer, supra,
5 Cal.4th at p. 1211.) We uphold the trial court’s express or implied findings under
section 654 if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th
622, 730.)
              As noted above, the jury convicted Threlkeld of 80 statutory violations
arising out of his conduct with 41 girls. Threlkeld contacted the girls online (§ 288.3),
and persuaded them take nude pictures of themselves and send them to him (§ 288,
                                             7
subds. (a), (c); § 311.4). He sent some of them harmful pornographic material (§ 288.2),
arranged and attempted to arrange meetings with these girls (§ 288.4), took pornographic
photos of some of the girls, and committed other lewd acts with them. The prosecutor
argued to the jury Threlkeld’s main goal was to get together with one of these little girls
and perform sexual acts on her or have sex with her.” He was also “trying to get naked
pictures to fulfill his own lusts and passions.” The court remarked at sentencing:
“[T]here was a pattern and . . . common goal here, which is the initial contact and more
substantial contact along the way, in order to get the victim more comfortable with . . .
more revealing acts – sexual acts to finally culmination and actual sexual contact. I think
that behavior is called grooming behavior.”
              Where the jury convicted Threlkeld of committing more than one crime per
victim, the trial court sentenced him for the crime carrying the most severe punishment.
The court sentenced him to 41 consecutive terms, either determinate or indeterminate
depending on the charge, one term per victim. The court imposed concurrent terms for
the other offenses, except kidnapping as charged in count 1 (V.), which the court stayed
under section 654.
              Threlkeld contends the court erred when it imposed multiple separate terms
for each victim. He contends the acts constituting violations of sections 288, 288.2,
288.3, 288.4, and 311.4, as specified below, were incidental to or were the means of
accomplishing or facilitating other offenses.2 We agree in part.
Counts 6-8 (Vennessa) and 9-10, 12 (Desiree)
              V. (born June 1995) and Desiree (born May 1994) attended middle school
together in Riverside County. In 2007, when she was 13 years old, Desiree set up a


       2
               Threlkeld acknowledges the imposition of concurrent sentences makes no
practical difference to his sentence. Nevertheless, trial courts must stay concurrent
sentences if section 654 prohibits multiple punishment. (People v. Jones (2012) 54
Cal.4th 350, 353.)
                                              8
MySpace account listing her age as 16. In 2008, Threlkeld, under the pseudonym “Sara,”
contacted Desiree through MySpace and asked if she would be interested in modeling for
nude photos that would pay from $300 to $500 a photo. When Desiree responded
positively, Threlkeld directed Desiree to take photos of herself and send them
electronically, but Desiree declined because her mother might find out. Threlkeld told
her to add “Josh” (Threlkeld) to her MySpace account. She and Threlkeld communicated
about modeling through MySpace and on the telephone. She informed him she was 14
and expressed concern she was too young to model, but he assured her age was not an
issue.
              Sometime around Thanksgiving 2008, Desiree and Threlkeld arranged to
meet after school. Desiree asked V. to accompany her, explaining to V. the kind of
modeling and money involved. V. wanted to help her mother out financially so she filled
out a modeling application listing her age as 13 and e-mailed it to Model 508 Studios.
              Threlkeld picked the girls up at their school and drove them to a house in
Orange County “to take pictures.” At the house, he directed the girls to pose, telling
them “the more naked” they got, the more he would pay. He offered to pay Desiree for
photographs of her having sex with him, but she declined. Desiree posed wearing pants
with suspenders and without a bra. He took photos of both girls in lingerie, and V.
topless, but with her hands covering her chest at Threlkeld’s suggestion. V. wore fishnet
stockings without underwear or a top. He took photos of the girls together on a bed with
their legs over each other and with Desiree’s leg over V.’s stomach and V.’s hand on
Desiree’s thigh. After this session, Threlkeld took the girls home.
              Sometime later, Threlkeld persuaded V. to let him take more pictures of her
by promising to pay her. He picked her up in Riverside and drove to a house in Palm
Springs. He directed her to put on a yellow dress and asked her to “do like some nasty,
like opening [her] legs,” but she refused. He told her his “camera died,” but there was
“another option” for her to be paid. V. complied with his suggestion they shower
                                             9
together. He digitally penetrated V.’s vagina, orally copulated her, had her orally
copulate him, and inserted his penis into her vagina, ejaculating on her side. Afterwards,
he gave V. $120 and took her home.
              Concerning V., the jury convicted Threlkeld of one count of kidnapping
(count 1), four counts of lewd acts with a child (§ 288, subd. (a); counts 2-5), and one
count each of contacting a minor to commit a sex offense (§ 288.3, subd. (a); count 6),
arranging a meeting with a minor with lewd intent (§ 288.4; count 7), and employing a
minor to pose for sexual photographs (§ 311.4, subd. (c)). The court sentenced Threlkeld
to 25 years to life for the lewd acts charged in counts 2-4, an enhanced sentence because
he kidnapped a child under the age of 14. The court also imposed a concurrent sentence
of 15 years to life term for a separate lewd act (count 5), a concurrent three year term for
contacting a minor to engage in lewd acts (count 6), a concurrent three year term for
arranging a meeting with a minor to commit lewd acts (count 7), and a concurrent three
year term for employing a minor to pose for sexual photographs (count 8). The court
imposed and stayed (§ 654) a concurrent eight-year term for kidnapping (count 1).
              Concerning Desiree, the jury convicted Threlkeld of one count of
committing a lewd act (§ 288, subd. (a); count 9) and one count each of contacting a
minor to commit a sex offense (§ 288.3, subd. (a); count 10), arranging a meeting with a
minor with lewd intent (§ 288.4; count 11), and employing a minor to pose for sexual
photographs (§ 311.4, subd. (c); count 12). The court imposed a three year consecutive
term on count 11, selected this as the principal determinate term, and imposed concurrent
terms for the other violations.
              Threlkeld contacted Desiree and V. (§ 288.3), and arranged to meet them
(§ 288.4) to further his ultimate objective of committing lewd acts with these young girls.
In other words, these acts and offenses were incidental to and the means of
accomplishing or facilitating Threlkeld’s objective to commit lewd acts against the girls
(§ 288) and create child pornography (§ 311.4). Consequently, they formed part of a
                                             10
course of conduct constituting an indivisible transaction and therefore imposing a
concurrent sentence for these offenses violated section 654.
              The trial court, however, reasonably could conclude Threlkeld’s intent and
objective in employing the girls to pose for sexual photographs (§ 311.4, subd. (c)) was
separate and distinct from his intent to commit lewd acts against the girls. Substantial
evidence supported the court’s implicit finding Threlkeld took these lewd photos to use
later for personal viewing or to disseminate to others. As noted in the legislative history
to section 311.4, “Pedophiles often use child pornography as a ‘teaching tool’ in their
molestations. Pornographic material depicting children involved in sexual activities is
frequently utilized to sexually stimulate the molester, desensitize children and educate
them to the desire of the molester, blackmail children into silence, and facilitate the
molestation of additional children.” (Assem. Com on Public Safety, Analysis of Assem.
Bill No. 295 (1995-19696 Reg. Sess.) as amended Aug. 23, 1996, p. 4.) Here, evidence
showed Threlkeld may have used these lewd photos on his Web site to recruit other
young girls as models. Separate punishment for lewd acts and violations of section 311.4
did not violate section 654.
Counts 13-14, 16 (Michelle) and Laura (Counts 17 & 19)
              In 2008, Michelle (born April 1994) met Laura (born May 1993), who told
Michelle about Model 508 Studios. On July 2, 2008, when Michelle was 14 years old,
she took several nude photographs of herself with her mobile phone and e-mailed the
photos to Model508@gmail.com. A few weeks later, Threlkeld arranged to pick the girls
up at Michelle’s house in Corona and drove them to a house in Hemet or San Jacinto. He
directed the girls to take their clothes off and took nude photos of them separately and
together. In some of the photos he had them pose while kissing and embracing each
other. During the photo shoot, Threlkeld touched the girls on their arms and legs to
achieve the poses he wanted. He offered to pay them a “couple hundred dollars” if they
posed nude, but promised to pay more if they had sex with him. Laura initially agreed to
                                             11
have sex, but Michelle talked her out of it. Michelle expected to be paid for posing for
the photos, but Threlkeld only gave Laura $50 and claimed he did not have any more
money.
              Concerning Michelle, the jury convicted Threlkeld of one count of
committing a lewd act (§ 288, subd. (a); count 13), one count each of contacting a minor
to commit a sex offense (§ 288.3, subd. (a); count 14), arranging to meet a minor with
lewd intent (§ 288.4; count 15), and employing a minor for sexual photographs (§ 311.4,
subd. (d); count 16). The court sentenced Threlkeld to a one-year term (one-third the
middle base term of three years) for the section 288.4 violation (count 15) consecutive to
count 11, and imposed concurrent terms for the other offenses. As explained above,
separate punishment for the lewd acts (count 13), contacting a minor to commit lewd acts
(count 14), and arranging a meeting with lewd intent (count 15) violated section 654.
Here, the court imposed punishment on count 15, which was the provision that provided
the longest potential term of imprisonment. Punishment on counts 13 and 14 therefore
must be stayed, but separate punishment for employing or using a minor to create child
pornography (§ 311.4, subd. (c); count 16) was permissible.
              Concerning Laura, the jury convicted Threlkeld of one count of committing
a lewd act (§ 288, subd. (a); count 17), one count each of contacting a minor to commit a
sex offense (§ 288.3, subd. (a); count 18) and employing a minor to pose for sexual
photographs (§ 311.4, subd. (c); count 19). The court sentenced Threlkeld to a one-year
consecutive term for arranging a meeting with a minor with lewd intent (count 18), and
imposed concurrent terms for the other counts. Separate punishment for the lewd act
(count 17) and contacting a minor (count 18) violated section 654. The court imposed
punishment on count 18, which was the provision that provided the longest potential term
of imprisonment. Punishment on count 17 must be stayed. As explained above, the trial
court could impose separate punishment for the section 311.4 violation (count 19).
Counts 21-23 (Shayla)
                                            12
              Threlkeld contacted Shayla (born August 1994), who lived in Iowa, through
MySpace in November 2007 and asked her to pose nude and send him the photos
electronically. On November 17, 2007, Shayla took nude photos of herself and sent
them to Model508@gmail.com. Threlkeld sent her numerous photographs of naked
women and told her to strike similar poses in her photos. Shayla expected, but did not
receive payment.
              The jury convicted Threlkeld of committing a lewd act (§288, subd. (a);
count 20), and found he committed a lewd act against more than one person within the
meaning of section 667.61, subdivision (e)(5). It also convicted him of one count each of
contacting a minor to engage in lewd behavior (§ 288.3, subd. (a); count 21); employing
or using a minor to create child pornography (§ 311.4, subd. (c); count 22), and
distributing lewd material to a minor (§ 288.2, subd. (b); count 23). The court sentenced
Threlkeld to a consecutive 15-years-to-life term for the enhanced violation of section 288
(count 20), and imposed concurrent terms for each of the other counts.
              As discussed above, separate punishment for violating section 288.3 (count
21) violated section 654 and must be stayed, but separate punishment was permissible for
using a minor to create child pornography (count 22). Concerning Threlkeld’s conviction
for violating section 288.2, subdivision (b) (count 23), although Threlkeld’s act in
sending the photos to Shayla was part of a course of conduct leading her to take lewd
photos of herself, the distribution of harmful matter to a minor is analogous to sending
child pornography to third persons, each act of which warrants separate punishment.
(See People v. Clair (2011) 197 Cal.App.4th 949, 961.)




Counts 25-27 (Jamie)
              In June 2008, Jamie (born July 1995) lived in Palm Springs. Threlkeld
contacted her through MySpace and asked her to take pictures of herself so that they
                                            13
could meet later in Palm Springs. She took and sent photos of herself wearing clothing.
Threlkeld sent her photos of nude females and told her to photograph herself in similar
poses. She complied and sent nude photographs of herself to Model 508 on June 18 and
June 19, 2008. Jamie believed she would be paid for the photos if she actually met the
person asking for the photos and modeled for more photographs. Jamie did not receive
any payment.
               The jury convicted Threlkeld for committing a lewd act (§ 288, subd. (a);
count 24), and found he committed a lewd act offense against more than one person
within the meaning of section 667.61, subdivision (e)(5). It also convicted him of one
count each of contacting a minor to engage in lewd behavior (§ 288.3, subd. (a); count
25), employing or using a minor to create child pornography (§ 311.4, subd. (c); count
26), and contacting a minor with lewd intent (§ 288.2, subd. (b); count 27). The court
imposed a consecutive 15-years-to-life term on count 24, and imposed concurrent terms
for the remaining counts.
               For the reasons expressed above, separate punishment for violating section
288.3 (count 25) violated section 654 and must be stayed, but separate punishment was
permissible for violating sections 311.4 (count 26) and 288.2 (count 27).
Counts 29-31 (Maria E.)
               In May 2008, Maria (born March 1995) lived in San Bernardino County.
When Threlkeld contacted her through MySpace and asked if she wanted to model, she
filled out a modeling application listing her address and true age. Later, Threlkeld told
her he wanted to see her in nude photos and sent some sample photos. Maria took a
number of nude photographs of herself, including some she was asked to “redo,” and sent
them to Model 508 in e-mails dated May 17 and May 20, 2008.
               The jury convicted Threlkeld of a lewd act (§ 288, subd. (a); count 28), and
found true an enhancement allegation pursuant to section 667.61, subdivision (e)(5). The
jury also convicted him of one count each of contacting a minor to engage in lewd
                                             14
behavior (§ 288.3, subd. (a); count 29), using a minor to create child pornography
(§ 311.4, subd. (c); count 30), and distributing lewd material to a minor (§ 288.2, subd.
(b); count 31). The court imposed a consecutive term of 15 years to life on count 28, and
imposed concurrent terms for each of the other counts.
              For the reasons expressed above, separate punishment for violating section
288.3 (count 29) violated section 654, but separate punishment was permissible for
violating section 311.4 (count 30) and section 288.2 (count 31).
Counts 55, 57 (Diana)
              In 2008 and 2009, Diana (born May 1994) lived in Ontario, California.
Threlkeld sent messages through MySpace asking her to take and send photographs of
herself. On May 22, 2008, Diana took photos and sent them to Threlkeld. On the same
day, Threlkeld sent an e-mail to Diana with some photographs entitled “poses.” On
January 14, 2009, Diana took photographs of herself wearing a bra and panties, and one
showing a close-up of her vagina. She sent additional photographs of herself on February
11, 2009. Diana thought she was dealing with a modeling agency and expected to be
paid thousands of dollars for the photos she took, but she did not receive anything.
              The jury convicted Threlkeld of one count each of contacting a minor to
engage in lewd behavior (§ 288.3, subd. (a); count 55), using a minor to create child
pornography (§ 311.4, subd. (c); count 56), and distributing lewd material to a minor
(§ 288.2, subd. (b); count 57). The trial court imposed a consecutive term of eight
months for the violation of section 311.4 (count 56) and imposed concurrent terms for the
remaining counts.
              For this category of victim, where the contact or communication (§ 288.3)
did not lead to a meeting or photo shoot where lewd acts occurred, the contact was the
means Threlkeld used to employ the girl to create child pornography (§ 311.4). Separate
terms for violating section 288.3 (count 55) and section 311.4 (count 56) violated section


                                            15
654. A separate term for sending harmful matter (§ 288.2) to Diana (count 57) was
permissible.
Count 59 (Stephanie)
               In January 2009, Stephanie (born August 1992) lived in Anaheim and had a
MySpace account. On January 2, Stephanie received a request to model from Threlkeld
and sent him a photo of her face. In response to another request, she sent a photo of
herself nude from the waist up but “covering up [her] breast.” On January 6, Threlkeld
e-mailed Stephanie pictures of “naked girls” to show her how to pose for her pictures.
Stephanie decided not send any more photos.
               The jury convicted Threlkeld of contacting a minor to engage in lewd
behavior (§ 288.3, subd. (a); count 59) and distributing lewd material to a minor (§ 288.2,
subd. (b); count 60). The court imposed a consecutive term of eight months for the
violation of section 288.2 (count 60) and a concurrent term for the section 288.3
violation.
               For this category of victim, the act of contacting or communicating with
intent to commit a lewd offense (§ 288.3) was separate and divisible from the act of
sending the girl harmful matter (§ 288.2). Separate terms for violating these sections did
not run afoul of section 654.
Counts 64-65 (Shawna)
               In 2009, Shawna (born April 1992) lived in Fullerton and had a MySpace
account. On January 3, 2009, at Threlkeld’s request, she sent him nude photographs of
herself, and other photos with her posing in bra and panties. The same day, she received
an e-mail from Threlkeld titled “poses” with photos of naked girls and a request for her to
pose in that fashion. Threlkeld proposed to take photos of her in Palm Springs or another
place, but she did not agree to meet him.
               The jury convicted Threlkeld of contacting a minor to engage in lewd
behavior (§ 288.3, subd. (a); count 63), using a minor to create child pornography
                                            16
(§ 311.4, subd. (c); count 64), and distributing lewd material to a minor (§ 288.2,
subd. (b); count 65). The court imposed a one-year consecutive term for violating section
288.3 (count 63) and imposed concurrent terms for the other violations. Separate terms
for violating section 288.3 (count 63) and section 311.4 (count 64) violated section 654,
but a separate term for sending harmful matter (§ 288.2; count 65) was permissible.
Counts 67, 69 (Megan)
              In 2007, Megan (born July 1993) lived in Georgia. In December 2007,
Threlkeld contacted her on her MySpace page about modeling, and at his request she
took and sent nude photos of herself on December 18, December 26, and December 30,
2007. Threlkeld sent her photos of naked women and told her she should try to pose like
the women in the photos.
              The jury convicted Threlkeld of contacting a minor to engage in lewd
behavior (§ 288.3, subd. (a); count 67), using a minor to create child pornography
(§ 311.4, subd. (c); count 68), and distributing lewd material to a minor (§ 288.2, subd.
(b); count 69). The court imposed a consecutive term of eight months for the section
311.4 violation (count 68) and concurrent terms for the remaining counts. Separate terms
for section 288.3 (count 67) and section 311.4 (count 68) violated section 654, but a
separate term for sending harmful matter to Megan (§ 288.2; count 69) was permissible.
Counts 70, 72 (Pamela)
              In 2007, Pamela (born November 1991) lived in Florida. On September 17,
2007, Pamela responded to Threlkeld’s request on her MySpace page and e-mailed nude
photos of herself. Threlkeld told her he would pay for the photos, but she never received
payment.
              The jury convicted Threlkeld of contacting a minor to engage in lewd
behavior (§ 288.3, subd. (a); count 70), using a minor to create child pornography
(§ 311.4, subd. (c); count 71), and distributing lewd material to a minor (§ 288.2, subd.
(b); count 72). The court imposed a consecutive term of eight months for the section
                                            17
311.4 violation (count 71) and concurrent terms for the remaining counts. Separate terms
for section 288.3 (count 70) and section 311.4 (count 71) violated section 654. As
explained below in Part C, the Attorney General concedes count 72 must be reversed
because there is no evidence Threlkeld sent Pamela any harmful matter (§ 288.2; count
72).
Counts 73, 75 (Jessica)
              In 2007, Jessica (born November 1990) lived in Virginia. In September
2007, Threlkeld contacted her though MySpace, asked for nude photographs of her, and
promised to pay her $300. Jessica sent Threlkeld a number of nude photographs of
herself in September 2007. At some point, Threlkeld e-mailed photos of “naked girls . . .
in provocative poses” and asked Jessica to take similar photos of herself.
              The jury convicted Threlkeld of contacting a minor to engage in lewd
behavior (§ 288.3, subd. (a); count 73), using a minor to create child pornography
(§ 311.4, subd. (c); count 74), distributing lewd material to a minor (§ 288.2, subd. (b);
count 75). The court imposed a consecutive term of eight months for the section 311.4
violation (count 74) and concurrent terms for the remaining counts. Separate terms for
section 288.3 (count 73) and section 311.4 (count 74) violated section 654, but a separate
term for sending harmful matter (§ 288.2; count 75) was permissible.
Counts 76, 78 (Natalie)
              In 2008, Natalie (born October 1992) lived in Oregon. In January 2008,
she sent Threlkeld nude photographs. Threlkeld sent her nude photos of other women in
poses for her to imitate. She expected payment for the photos, but never received
anything for her photos.
              The jury convicted Threlkeld of contacting a minor to engage in lewd
behavior (§ 288.3, subd. (a); count 76), using a minor to create child pornography
(§ 311.4, subd. (c); count 77), and distributing lewd material to a minor (§ 288.2, subd.
(b); count 78). The court imposed a consecutive term of eight months for the section
                                             18
311.4 violation (count 77) and concurrent terms for the remaining counts. Separate terms
for section 288.3 (count 76) and section 311.4 (count 77) violated section 654, but a
separate term for sending harmful matter to Natalie (§ 288.2; count 75) was permissible.
Count 79 (Allison)
              In 2008, Allison (born February 1992) lived in Glendora. In January 2008,
Threlkeld contacted her through MySpace asking if she was interested in modeling. On
January 19, after a fight with her parents left her feeling rebellious, she took and sent
Threlkeld nude photographs of herself. He promised to pay her for the photos, but she
never received payment.
              The jury convicted Threlkeld of contacting a minor to engage in lewd
behavior (§ 288.3, subd. (a); count 79) and using a minor to create child pornography
(§ 311.4, subd. (c); count 80). The court imposed a consecutive term of eight months for
the section 311.4 violation (count 80) and a concurrent term for the section 288.3
violation. Separate terms for section 288.3 (count 79) and section 311.4 (count 80)
violated section 654.3




3
               The Attorney General cites only one case addressing the section 654 issues.
In People v. Brents (2012) 53 Cal.4th 599, the defendant assaulted the victim, and on a
later occasion murdered her. The court concluded section 654 did not bar punishment for
both offenses because the assault was a separate incident and the trial court could have
found the defendant had not formed the intent to kill the victim at the time of the assault.
Here, the trial court found, and the record supports, Threlkeld’s preliminary acts against
the girls were directed at grooming them to commit lewd acts to satisfy his lustful urges,
and to obtain child pornography. Threlkeld’s acts in contacting and arranging meetings
with the girls were the means to accomplishing his prurient ends, and section 654
prohibits multiple punishment. Nothing in Brent persuades us otherwise.
                                             19
C.   No Substantial Evidence Supports the Conviction for Violation of Section 288.2 as
Charged in Count 72
              We invited supplemental briefs inviting the parties to address whether
sufficient evidence supported Threlkeld’s conviction for violation of section 288.2 as
charged in count 72 of the second amended information. As noted above, Pamela (born
November 1991) testified she communicated with Threlkeld over MySpace and sent
pornographic photographs of herself to him in 2007. The Attorney General concedes
there is no evidence in the record Threlkeld sent harmful material to Pamela.
Accordingly, count 72 must be reversed.
                                             III
                                        DISPOSITION
              The judgment is modified (§ 1260) to reverse count 72, and the trial court is
directed to dismiss that charge. The judgment is further modified to stay punishment
(§ 654) on counts 6, 7, 9, 10, 13, 14, 17, 21, 25, 29, 55, 64, 67, 70, 73, and 76. The trial
court is directed to prepare an amended abstract of judgment and to serve a copy on
Threlkeld and the California Department of Corrections and Rehabilitation. The
judgment is affirmed in all other aspects.




                                                   ARONSON, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.


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