Superior Court of the County of Sonoma, No. SCR543165, Gary A. Medvigy, Judge.
The opinion of the court was delivered by: Jones, P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted appellant George Anton Clair of 46 felony counts, including committing lewd and lascivious acts with his daughter, Jane Doe, a child under 14 years (Pen. Code, § 288, subd. (a) (Counts 2-6)),*fn2 felony child endangerment (§ 273a, subd. (a) (Count 9)) and distribution of child pornography (§ 311.2, subd. (c) (Counts 27-45)). The trial court sentenced appellant to state prison.
Appellant raises three claims on appeal. First, he contends there was insufficient evidence he endangered Doe under circumstances or conditions "likely to cause great bodily harm or death" pursuant to section 273a, subdivision (a) (Count 9). Next, appellant claims the court should have stayed execution of sentence pursuant to section 654 on three convictions for committing a lewd and lascivious act on Doe in violation of section 288, subdivision (a) (Counts 2-6). Finally, he claims the court was required by section 654 to stay execution of sentence on four convictions for distributing child pornography in violation of section 311.2, subdivision (c) (Counts 28, 30, 40, & 42) because "[t]he transmission of multiple emails in rapid succession to a single recipient constitutes an indivisible course of conduct with the single purpose of distributing the prohibited material to one individual."
We affirm. In the published portion of this opinion, we reject appellant's challenge to the sufficiency of the evidence to support the section 273a, subdivision (a) conviction (Count 9). We also conclude section 654 does not require the court to stay execution of sentence on Counts 28, 30, 40, and 42 because appellant distributed different images of child pornography at different times and with different objectives. In the unpublished portion, we reject appellant's claim that the court should have stayed execution of sentence on some of his section 288, subdivision (a) convictions (Counts 2-6) pursuant to section 654.
FACTUAL AND PROCEDURAL BACKGROUND
In an amended information filed on October 20, 2009, the prosecution charged appellant with 46 felony counts: oral copulation of a child under 10 years (§ 288.7, subd. (b) (Count 1)); lewd and lascivious conduct on a child under 14 years (§ 288, subd. (a) (Counts 2-6)); sexual penetration of a child under 15 years (§ 289, subd. (j) (Counts 7-8)); felony child endangerment (§ 273a, subd. (a) (Count 9)); inducing a child to pose or model sexual conduct (§ 311.4, subd. (c) (Counts 10-25)); unlawful possession of child pornography (§ 311.11, subd. (a) (Count 26)); distribution of child pornography (§ 311.2, subd. (c) (Counts 27-45)); and conspiracy to obstruct justice (§ 182, subd. (a)(5) (Count 46)).
We begin with an overview of the facts. We will provide additional factual and procedural details as germane to appellant's specific claims.
Appellant's daughter, Doe, was born in 1999. From 2003 to 2008, appellant worked as a tow truck driver in Cotati, California. He lived with Doe in a trailer on the tow yard. In 2008, Cotati Police Officer Christopher Diaz discovered child pornography sent from several different America On-Line, Inc. (AOL) screen names associated with appellant's AOL account. Diaz searched appellant's trailer and found a digital camera, a memory card, two computer towers, and an external hard drive.
Diaz downloaded photographs from the camera. Many of the photographs -- which appeared to have been taken in appellant's trailer -- showed Doe posing or touching herself in a sexual manner. In some photographs, Doe was wearing a black nightgown; in others, appellant was wearing his underwear. On the memory card, Diaz found images of naked boys. A detective from the Vallejo Police Department examined the external hard drive found in the trailer and discovered 448 images of child pornography dated between September 2006 and April 2008. Some of the images were of Doe. The detective found 212 images of child pornography on one of the computer towers, some of which showed Doe orally copulating a man wearing an orange jumpsuit. Other photographs showed Doe penetrating herself with dildos. In addition, the detective found numerous emails sent from screen names associated with appellant's AOL account; the emails attached images of child pornography. Diaz later found an orange jumpsuit in appellant's trailer.
At the time of trial in 2009, Doe was 10 years old but had the developmental capabilities of a four or five-year-old. She testified she lived with appellant in a trailer, that he was a tow truck driver, and that he sometimes wore orange clothing. Appellant took pictures of Doe without clothes and pictures of her wearing a black nightgown. He also took pictures of her "peep" -- the word Doe used to describe male and female genitalia -- and used his hands to pull her head down and put her mouth on his "peep." Doe saw appellant ejaculate. She said it was "scary" to see appellant's "peep," and that it made her feel "not happy" when he put his "peep" in her mouth. She also stated appellant was "mean" to her and that she felt like she was keeping a "bad secret." Marlene Hansel, who volunteered in Doe's special needs classroom, testified Doe was happy and "very friendly" in 2005; in 2006, however, Doe became "less affectionate" and "very distant."
Appellant denied taking photographs of Doe or emailing child pornography. Appellant claimed his friend, John Christiansen, took the photographs and that Christiansen knew his computer and internet passwords. Appellant also denied forcing Doe to orally copulate him or to use sex toys on herself and testified Doe lied when she claimed he forced her to orally copulate him.
On October 30, 2009, the jury convicted appellant of 46 felony counts. In December 2009, the court sentenced appellant to an aggregate term of 59 years to life in state prison. The court stayed execution of sentence on appellant's convictions for felony child endangerment (§ 273a, subd. (a) (Count 9)) and unlawful possession of child pornography (§ 311.11, subd. (a) (Count 26)). The court imposed consecutive sentences on appellant's ...