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Name: People v. Clair
Case #: A127163
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 07/21/2011

For the purpose of Penal Code section 273a, subdivision (a)(child endangerment), the jury may consider the victim’s age and physical development in determining whether the conduct is likely to produce great bodily harm. To support a conviction for felony child endangerment, there must be sufficient evidence that defendant’s conduct was willful and committed under circumstances likely to produce great bodily harm, with harm referring to significant or substantial injury. There is no requirement that the victim suffered actual injury or that expert testimony is required. In determining whether defendant’s conduct was likely to cause the harm, the jury may consider the victim’s age and physical development. The victim is defendant’s daughter and resided with him. Evidence was presented that photographs were taken of the child, who was under ten years of age at the time, but with developmental capabilities of a four or five year old. The photographs depicted acts of sexual abuse, including the child penetrating herself with large sexual toys. Given the child’s tender age and fragile development, the jury reasonably could have inferred that the abuse created a risk of serious injury to the child’s vagina and urogenital tract.

Consecutive sentences for multiple violations of Penal Code section 311.2, subdivision (c) (distributing child pornography) does not violate Penal Code section 654. Appellant contended that the court erred in not staying sentences for convictions for 19 counts of section 311.2, subdivision (c). The convictions stemmed from appellant’s email distribution of different pornographic images to various accounts, some of the email messages being sent within minutes of each other. The court disagreed. Defendant’s intent and objective, not the temporal proximity of the offenses, determines whether the transactions are indivisible, such that multiple punishment is error. Here, when appellant sent each email, he harbored separate and different criminal objectives which were independent and not merely incidental to each other. Even if they were sent with a single generalized intent and objective, separate sentencing was permissible as the offenses were temporarily separated in such a way that appellant had the opportunity to reflect and renew his intent for each offense.