Opinion
Once again we grapple with the constraints on punishment for serial sex acts. In
People
v.
Reeder
(1984)
Defendant Robert Hammon waived his right to trial by jury and was convicted by the court of 11 counts of lewd conduct with a child under 14 years old (Pen. Code, § 288, subd. (a) [all further undesignated section references are to this code]), with allegations of substantial sexual conduct with a victim under the age of 11 years (§ 1203.066, subd. (a)(8)) sustained as tо counts 4, 5, 7, 8, 9, and 11. 1 After a court-ordered temporary placement in a diagnostic facility (§ 1203.03), the court sentenced the defendant to state prison for the upper term of eight years on count 3, with consecutive sentences of one-third of the middle term of six years (§ 1170.1, subd. (a)) imposed on each of the remaining ten counts for a total of twenty eight years. On appeal defendant raises an ill-framed argument that the photographs by which he was convicted were constitutionally required to be further corroborated, claims the proscription against double punishment in section 654 has been violated, and asserts the trial court did not give sufficient reasons for imposing consecutive sentences. Only a variation of the double punishment *1089 argument has merit and is the one we consider in the published portion of this opinion. As we shall explain, defendant was convicted of 11 sexual offenses when only 7 had been committed. Thus the conviction as well as the punishment for the four duplicate crimes must fall. But defendant was properly convicted and punished for the remaining seven offenses and we shall affirm the judgment as to those crimes.
Facts
On May 14,1984, Sergeant Robert Humphrey of the Sexual Abuse Bureau of the Sacramento County Sheriff’s office went to the defendant’s apartment for the purpose of executing a search warrant. 2 Among the materials seized were three rolls of negative strips of film. The negatives depicted an adult male and a female infant, both naked. When questioned about the negatives, defendant admitted to being the adult in the picture and said the infant was the daughter of a friend. He also stated the photographs had been takеn seven or eight years previously and he had no idea where or how the officer might contact the infant or her mother. The officer also found during the search a 35-millimeter camera, two cable releases (which permit the shutter of a camera to be tripped from some distance away), and an automatic winder (which, when attached to a camera, permits photographs to be taken in rapid sequence without advancing the film by hand). Because the officer did not have any evidence that the acts depicted in the negatives occurred within his jurisdiction or that the statute of limitations was still running, he did not arrest the defendant at this time. The defendant was eventually arrested in November 1984, again admitting to being the adult in thg negatives and once again claiming the events took place years earlier. As the result of a newspaper article about defendant’s arrest, Leonora L., one of defendant’s former lovers and the mother of a female toddler, went to the police station because the article mentioned the existence of the negatives with an unidentified female infant. To her horror, she recognized the infant in the pictures as her daughter.
At trial, Sergeant Humphrey testified the 111 photographs introduced into evidence were in fact accurate depictions of the 3 seized rolls of negatives and had been in the continuous chain of custody of the police and the district attorney’s office. Defendant did not challenge their introduction into evidence. Leonora undertook the gruesome task of examining the entire stack of photographs in order to testify she either recognizеd her daughter or did not see anything about the infant in any photograph which would be inconsistent with her daughter. She also testified that her daughter was bom in July 1981; that defendant babysat for her daughter ^nd an older sibling *1090 five to ten times at his apartment when she was having troubles with her older children, with the longest time span involved lasting approximately two and one-half days; and that defendant no longer babysat for her after she moved in July 1982. 3 She was unable to recognize any background details in the photographs because she had never been to defendant’s apartment and was, in fact, unaware of where he actually lived at that time.
Mary C. was another of defendant’s former lovers. She testified she knew him from 1979-1983, had been to apartments he lived in behind the Sunrise Mall and near the mall on Bonham Circle, and believed the photographs were dissimilar in terms of wаll texture (particularly People’s exhibit 1) from either of these residences. After the fall of 1981, she did not know where defendant lived. She did recognize the furnishings and the sheets visible in the photographs as belonging to defendant. Another witness, Marie B., testified defendant had moved into an apartment over the garage of the house where she was living on Empress Street in the North Sacramento area; she was able to fix the time as approximately two months before she bought a car in March 1982. She recognized the headboard in the photographs as being defendant’s because she cleaned up the apartment for him after he moved in the summer of 1982 to a trailer with panelled walls. She also testified she recalled defendant several times bringing her an infant, mentioning it was the child of a woman under “a lot of stress,” and asking her as а favor to watch the infant while he was at work. She remembered the name of the infant as being the same as the victim’s. She further testified that defendant kept the infant in his own apartment overnight on one occasion. Defendant did not testify in his own behalf. Further facts will be developed in the course of the discussion as becomes necessary.
Discussion
>1 *
II
We turn now to defendant’s contention that he received double punishment for his crimes in violation of section 654. He claims, in essence, that he committed only four discrete offenses against the infant victim, with *1091 different photographs of the same offenses impermissibly forming the basis for the additional seven convictions.
As we have recounted, defendant was charged with 11 counts of lewd conduct with a child under the age of 14 years in violation of section 288, subdivision (a).
5
That section provides that “[а]ny person who shall wilfully and lewdly commit any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or such child, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years.” Under its terms, an accused can violate this section either by committing some other Penal Code offense, such as rape (§ 261), unlawful sexual intercourse (§ 261.5), sodomy (§ 286), or oral copulation (§ 288a), or by committing some other undefined lewd act upon the child.
(People
v.
Gordon
(1985)
Defendant confuses crimes with transactions. The facts of this case implicate more than just an analysis of impermissible multiple punishment for separate crimes; they tender issues about the improper splitting of a single offense into multiple crimes as well. Thus, we are also concerned with whether some of defendant’s repeated acts constituted one violation or several. This concern was recognized by defendant’s trial counsel (who moved both for dismissal of some counts as duplicative and for acquittal on those counts at the close of the prosecutor’s case, neither time successfully) even though the prosecution, the trial court and appellate counsel have all viewed the problem as solely one arising under section 654. This may be because “the cases fail to adequately distinguish between the concept of a single act or omission in the context of multiple prosecution and conviction as opposed to multiple punishment____’’
(People
v.
Gardner
(1979)
Section 654 provides, in relevant part: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one----” While the language of the statute itself speaks of a single “act,” it has been interpreted as also applying to a series of acts constituting an indivisible transaction.
(People
v.
Beamon
(1973)
The test for determining whether a transaction is divisible is “to ascertain the defendant’s objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in the pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.”
(Beamon, supra,
This test based upon the intent and objective of the defendant, the high court has conceded, “has generated a number of refinements in the area where the test is applicable____The net effect of our holding in [the
Neal\
case was that where multiple acts of violence occur against multiple victims, the course of conduct is divisible. On the other hand, where a course of conduct involves only crimes against property interests of multiple victims, common sense requires, in the absеnce of other circumstances, a determination of the indivisibility of the course of conduct and the applicability of section 654.”
(Beamon, supra,
The Attorney General insists this lattermost statement in
Perez
is the sole test to be applied in determining the divisibility of any sex offenses. Such
*1095
is not the case, however. The “means/facilitated/incidental” test is only of use where the transaction involves different offenses. In that case, it is sensible to ask if one offense played a subsidiary role in the commission of the second crime. If the first crime was the means of, facilitated the commission of, or was merely incidental to the second crime, the proscription against multiple punishment of section 654 bars punishment for both offenses. Thus, in
People
v.
Greer
(1947)
On the other hand, the “means/faeilitated/incidental” test is of no value when the identical crime is sequentially repeated in the same transaction. This is because it adds nothing to the analysis of the problem: one oral copulation, for example, does not play a subsidiary role in the repeated commission of that crime. The first crime cannot sensibly be described as a means of committing the second one, or as facilitating its commission or as being incidental to it. A test which would never apply is no test at all. Identical offenses committed in the same transaction are individually punishable, not on the “means/facilitated/incidental” test propounded by the Attorney General, but because they are discrete and separate crimes which cannot be
*1096
amalgamated under the sweeping objective of sexual gratification. “To accept such a broad, overriding intent and objective to preclude punishment for otherwise clearly separate offenses would violate the statute’s purpose to insure that a defendant’s punishment will be commensurate with his culpability.”
(Perez, supra,
The more difficult question, for which we find no clear guidance, is the mаnner in which repeated instances of the same type of sexual conduct may be divided. It is readily evident that the same criminal conduct, when separated by a different sexual offense, constitutes discrete crimes which demonstrate separate intents by a defendant to achieve different gratifications. In that instance, three crimes are committed and each may be separately punished and we have so held in
People
v.
Reeder, supra,
152 Cal.App.3d at pages 916-917. Indeed, that rotation of offenses was the very sequence of crimes in
Perez.
The same is true when the same crime is repeated in one criminal transaction but against different victims. (See, e.g.,
People
v.
Calhoun
(1983)
But how does one determine whether repeated but identical acts against the same victim during one transaction without the intervention of a different crime constitute one offense or several? As the Court of Appeal noted in the context of instructions in
People
v.
McIntyre
(1981)
We begin with the definition of a crime. A crime is “an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, [specified] punishments----” (§ 15.) The criminal “act” therefore includes all the elements of a crime and thus, like an act for рurposes of double punishment, may involve more than a single act in the ordinary sense. For example, the crime of larceny entails not only the act of taking property but also of asporting it. (See
People
v.
Brady
(1987)
Occasionally, the time lapse between the identical acts is sufficiently long that the court may declare that separate crimes have been committed as a matter of law. (See, e.g.,
People
v.
Craft
(1986)
To define a sexual offense along the lines of each individual penetration or contact would lead to absurd results.1
11
A defendant who is able by superior
*1098
gymnastic abilities to maintain his initial penetration for an hour despite the struggles of his victim would be guilty of only one crime, whereas the less physically overpowering defendant who might wind up frequently disengaging and reinserting over a period of a few minutes would be guilty of a multitude of crimes. Simply because, under its technical definition, a crime has begun, does not mean that it has also simultaneously ended. As is the case with one crime of battery for many strikings, there is but one sex offense for many penetrations unless that crime has otherwise been completed. The mere repetition of the same act in one episode should not give rise to multiple convictions. (Cf.
People
v.
Gardner
(1979)
We are not left entirely without guidance in determining when one sexual offense is completed and another begun. If the defendant achieves a sexual climax and then pauses, this rejuvenating interlude provides a clear delineаtion between offenses. Such a bright-line dividing point is not always present, however, and the mere absence of a climax does not itself indicate indivisibility. (Re
eder, supra,
In summary, we hold that identical sexual acts constitute separate and discrete crimes when they are separated (1) by the commission of a different sexual offense, (2) by sexual climax, (3) by an appreciable passage of time, or (4) by a reasonable opportunity for reflection. 13
Having determined the test for multiple sex offenses, we turn once again to the proscription against double punishment.
Perez
held that “[t]he purpose of this legislative protection [under section 654] against punishment for more than one violation arising out of an ‘act or omission’ is to insure that a defendant’s punishment will be commensurate with his culpability.”
(Perez,
23 Cal.3d at pp. 550-551.) Consistent with that principle, the court concluded that a “defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act.” (
With these criteria established, we turn to the facts of the case before us. To assess the defendant’s contention properly, it has been the unhappy task of this court to examine closely the negative strips and the photographs made from them for the purpose of rеsequencing the photographs from the order in which they were admitted into evidence to a series which reflects the order of the negatives on the strips. Although there was no evidence to establish the time interval between negatives, the negatives on each roll are so similar as to appear to be individual images on a roll of movie film; we can readily infer that defendant made use of the auto winder and cable release (the latter being clearly visible in a number of photos) found by the officer. Furthermore, defendant and victim are in a bathtub in one roll and their hair is wet throughout the other two rolls, so we may also infer all the photos were taken over a brief period on one occasion.
The information connected each of the charged eleven counts with a numbered photograph. Thus, for example, count 1 alleged a lewd touching of the penis “as depicted in photo #7.” The order of the counts, however, does not follow the sequence in which the photographs were taken or the offenses committed. The counts actually occurred in this order: counts 3, 2, 1, 6, 5, 4, 9, 7, 10, 8, and 11. Without describing each negative and photograph in nauseating detail, suffice it to say that one roll of negatives depicts events in the bathtub and the other two those occurring on the bed. Counts 1, 2, and 3 all involve acts occurring in the bathtub. All three counts involve the defendant’s uninterrupted efforts to obtain sexual gratification by having the infant play with his penis; there is no indication of divisibility on the basis of another offense, time, climax, or opportunity to reflect between the photographs. Consequently, we conclude that оnly one offense has been committed and not three. Counts 1 and 2, the later occurring counts, must be reversed.
Count 6 involves a lewd touching on the bed. This count constitutes a separate crime from those occurring in the bathtub because defendant has had a reasonable period in which to reflect upon his course of conduct: he has had to remove himself and the infant to his bed and change the film in his camera. Rather than cease upon the the realization of the monstrous acts he had committed, he instead obviously desired to indulge his perverse instincts further. It is distinct from the remaining counts committed on the bed because they were all based upon the commission of other types of crime.
Counts 5 and 4, the next two counts, both involved acts of fellatio. They are distinguishable only by a change of position. The photographs reflect that *1101 defendant momentarily disengaged, moved slightly and then resumed. Since these counts do not meet the test for separate offenses, defendant could only be' convicted of one offense for this conduct. The same is true for counts 9 and 7 which followed. Both of these counts involved oral copulation of the vagina and are distinguishable only by a change in position. Thus counts 4 and 7 must be reversed.
The remaining three counts, counts 10, 8, and 11, are all separate offenses because they were based upon the rotation of different offenses. These counts reflect the commission of an undefined lewd act, followed by oral copulation, and then by an act of unlawful sexual intercourse. 14 All these crimes therefore are separate offenses and are separately punishable.
III *
Disposition
The judgment of conviction on counts 1, 2, 4 and 7 is reversed with directions to the trial court to dismiss those counts. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections.
Puglia, P. J., and Evans, J., concurred.
A petition for a rehearing was denied June 2, 1987.
Notes
Section 1203.066, provides in relevant part: “(a) Notwithstanding Section 1203, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provisions of this section be stricken pursuant to Section 1385 for, any of the following persons:... [II] (8) A person who in violating Section 288 has substantial sexual conduct with a victim under the age of 11 years----[11] (b) “Substantial sexual conduct’ means penetration of the vagina or rectum by the penis of the offender or by any foreign object, oral copulаtion, or masturbation of either the victim or the offender.”
As there is np challenge to the legality of the search, the circumst£,pyes leading up to it wjll') ,ot be recounted.
Leonora twice testified defendant never babysat the infant alone because he always took both the infant and an older daughter; she further testified the older daughter made no mention of anything unusual occurring. While this conflicts with Marie’s testimony the infant was there alone, it was within the power of the trial court to credit Marie and attribute Leonora’s testimony to forgetfulness.
See footnote, ante, page 1084.
For purposes of clarity in this appeal in which all the offenses are charged as violations of section 288, we shall refer to the type of sexual offense or conduct underlying each charge.
It is for this reason that the Pearson court held a defendant could be lawfiilly convicted of (but not punished for) both the general intеnt crime of sodomy and the crime of lewd conduct with a child for the commission of a single act of sodomy.
Although the trial court convicted defendant of all 11 counts, it did not find the lewd acts in counts 3, 6 and 10 to be the ones the prosecutor had alleged. Count 3 alleged that the lewd act consisted of defendant placing “his penis into the mouth” of the infant. The trial court, however, found the allegation that defendant had substantial sexual conduct with the infant within the meaning of section 1203.066, subdivision (a)(8) in the commission of this count to be untrue. Since substantial sexual conduct includes oral copulation by definition, the court necessarily found that the lewd act underlying count 3 was not oral copulation. The same is true of count 6, which alleged that defendant put “his penis on the mouth” of the infant. The lower court also found that no substantial sexual conduct occurred in the commission of count 10, which alleged that defendant placed “his penis in the vagina” of the infant. This negative finding also necessarily meant that the lewd act undergriding count 10 was not unlawful sexual intercourse. Thus the lewd conduct for these three counts consisted of some undefined lewd acts and not some other sexual offenses.
It has been noted that there is a conceptual distinction between continuous conduct resulting in one crime and multiple repetitions of the same crime. “There is a fundamental difference between a continuous crime spree and continuous conduct resulting in one specific offense. The continuous conduct exception only really applies, if at all, to those types of offenses where the statute defining the crime may be interpreted as applying, on occasion, to an offense which may be continuous in nature such as failure to provide, child abuse, contributing to the delinquency of a minor, driving under the influence and the like----”
(People
v.
Madden
(1981)
The cases do not identify the jurisprudential basis for this premise with any degree of precision, tending instead to state it as a given. (See, e.g.,
People
v.
Stephens
(1889)
The Supreme Court has also consistently held that “[i]f one offense is necessarily included within another offense, section 654 bars punishment for both offenses.”
(In re Adams
(1975)
Although they are not explicit on the point, we do not read these decisions to hold that each sexual stroke in the course of rape, sodomy or oral copulation constitutes a separate crime. Rather, as we understand them, it is each separate penetration, preceded by withdrawal or some other momentary disengagement, that constitutes the new offense. In this sense, a hundred penetrations would equal a hundred crimes, all separately punishable.
Our quarrel is with not the results reached in
Clem
and
Marks-,
it is with their conclusion that each new penetration constitutes a new crime in all cases and under all circumstances as a matter of law. Indeed, perhaps manifesting some discomfort with the
Clem
analysis, the
Marks
court also notеd facts under which it could find the two penetrations to be separate acts. (
This amendment reflects the meaning we had ascribed to the subdivision in
Reeder, supra,
We do not undertake to define in term of minutes how long a pause must be to constitute an “appreciable” time or for a reasonable opportunity to reflect. The diversity of sexual attacks preclude such a mechanical definition. As the high court noted in the context of multiple punishment, “[b]ecause of the many differing circumstances wherein criminal conduct involving multiple violations may be deemed to arise out of an ‘act or omission,’ there can be no universal construction which directs the proper application of section 654 in every instance.”
(People
v.
Beamon, supra,
It would approach the physically impossible to presume actual vaginal intercourse was actually consummated on this infant. Nevertheless, intercourse under the code only requires the slightest penetration for rape (§ 263) and presumably that applies to unlawful sexual intercourse as well, even though that offense is no longer called rape. Thus, labial penetration will suffice.
See footnote, ante, page 1084.