Filed 6/22/26 P. v. Washington CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D087614
Plaintiff and Respondent, (Super. Ct. No. SWF2100477)
v. ORDER MODIFYING OPINION
AND DENYING REHEARING
BRASHAWN REYNARD
WASHINGTON, CHANGE IN JUDGMENT
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed June 2, 2026, be modified to delete
the text of Discussion section III on pages 17–18 in its entirety and replace it
with the following:
After we filed our initial opinion, Washington filed a
“Request for Correction” asking that the opinion be
modified to state that the out-on-bail enhancement imposed
under section 12022.1 cannot be reimposed on remand due
to our reversal of count one for insufficient evidence. We
construed the request as a petition for rehearing and
invited the People to file an answer. In their answer, the
People concede that the out-on-bail enhancement may not
be reimposed on remand as a result of our reversal of count
one, which was the only “primary” offense used to impose
the enhancement. (See § 12022.1, subd. (a)(1) [defining the
“ ‘Primary offense’ ” to mean a felony for which the person
was released on bail]; id. at subd. (a)(2) [defining the
“ ‘Secondary offense’ ” as the felony committed while the
person was released from custody for the primary offense];
id. at subd. (g) [stating that if the primary offense is
reversed on appeal, the out-on-bail enhancement must be
“suspended pending retrial” and reimposed only upon
retrial and reconviction].) We accept the People’s
concession and agree that the out-on-bail enhancement
may not be reimposed on remand.
This modification order changes the appellate judgment. (Cal. Rules of
Court, rule 8.264(c)(2).)
The petition for rehearing is denied as moot as a result of this
modification.
BUCHANAN, Acting P. J.
Copies to: All parties
2
Filed 6/2/26 P. v. Washington CA4/1 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D087614
Plaintiff and Respondent, (Super. Ct. No. SWF2100477)
v.
BRASHAWN REYNARD
WASHINGTON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Timothy F. Freer, Judge. Affirmed in part, reversed in part, remanded for
resentencing.
Brad J. Poore, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General, Andrew S.
Mestman and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff
and Respondent.
Brashawn Reynard Washington appeals from a judgment imposed after
a jury convicted him of five offenses involving three minor victims and the
court sentenced him to 11 years four months in prison. He challenges the
sufficiency of evidence of the intent element of count one for distributing or
sending harmful material to minor victim J.Z. (Pen. Code,1 § 288.2,
subd. (a)(2).) On this count, we conclude there is insufficient evidence
Washington sent harmful material to J.Z. with the required intent to engage
in sexual conduct or intimate touching with him. We therefore reverse the
conviction and eight-month consecutive sentence for count one, remand for
full resentencing, and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Convictions and Sentence
A jury convicted Washington of two counts involving minor victim J.Z.,
two counts involving minor victim A.B., and one count involving minor victim
A.T. The conviction in count one was for distributing, sending, or exhibiting
harmful material to J.Z. (§ 288.2, subd. (a)(2).) Count two was for annoying
or molesting J.Z. (§ 647.6, subd. (a)(1).) Count three was for possession of
child sexual abuse materials depicting A.B. (§ 311.11, subd. (a).) Count four
was for production of child sexual abuse materials depicting A.B. (§ 311.4,
subd. (b).) Count five was for annoying or molesting A.T. (§ 647.6, subd. (a).)
The court sentenced Washington to a total prison term of 11 years and
four months. The sentence was calculated as follows: the upper term of eight
years for count four; a consecutive one-third middle term of eight months for
counts one and three; concurrent terms of eight months on misdemeanor
1 Hereafter, all undesignated statutory references are to the Penal Code.
2
counts two and five; and a two-year consecutive term for the out-on-bail
enhancement.
As relevant to this appeal, count one required that Washington must
have shared harmful material with J.Z. “with the intent or for the purposes of
engaging in sexual intercourse, sodomy, or oral copulation with the other
person, or with the intent that either person touch an intimate body part of
the other.” (§ 288.2, subd. (a)(1).)
We next summarize the trial evidence.
B. Victim J.Z. – Counts 1 and 2
Washington was a teacher at a middle school in Riverside County for
the 2019–2020 school year. He taught an “exploratory” sixth grade class.
Washington had just received his preliminary teaching credential and was a
brand-new teacher. He was 25 years old at the beginning of the school year.
J.Z. was 11 years old when he started sixth grade in August 2019. He
was in Washington’s exploratory class. J.Z. described it as “like a free period
so you can do work on … other classes” with a teacher present to provide
assistance. J.Z. saw Washington every day in class. Washington talked to
J.Z. and other students in class about playing video games.
In March 2020, the school shifted to remote learning due to the COVID
pandemic. During this period, J.Z. began to have contact with Washington
outside of school hours. Washington used a messaging platform to contact
J.Z. The two played Fortnite and other video games together online,
sometimes late into the evening. At Washington’s suggestion, J.Z.
downloaded an app on his phone so they could talk while playing video games
together.
Between April and May 2020, Washington sent multiple electronic
messages to J.Z. One of his messages had a heart emoji and another a
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kissing emoji. Washington also asked J.Z. why he had not applied to be his
teaching assistant for the next year and said J.Z. was his favorite student in
the class. Soon after, Washington asked J.Z. if he posted videos of himself on
TikTok and told him, “You’d be great.” Later, Washington inquired if J.Z.
had been working out and said he worked out every day “trying to get buff.”
In another message, Washington referred to J.Z. as “guapo” or “good looking.”
During one exchange, when J.Z. told Washington that he “just got out of the
pool,” Washington responded that he was “jealous AF” (as fuck) and that he
also wanted to “get in the pool.”
Washington also sent J.Z. videos on TikTok. One video depicted a
woman opening a plastic water bottle through her pants to make it look as if
she was opening it with her vagina. In another, the camera panned a messy
bedroom and showed a brief glimpse of a boy’s penis. The latter video
embarrassed and bothered J.Z.
During this time period, J.Z.’s mother noticed he was acting quiet and
“weird” and decided to search his phone. She discovered the messages and
videos and reported them to the school in May 2020. School officials referred
the matter to law enforcement and allowed Washington to resign instead of
being terminated. Law enforcement interviewed Washington about J.Z. on
August 17, 2020.
C. Victim E.P. – Uncharged Conduct2
In August 2020, Washington began a new job as a math teacher at a
Pasadena high school. At the beginning of the year, the school was doing
2 The court admitted evidence of uncharged criminal conduct against
E.P. under Evidence Code sections 1101, subdivision (b) and 1108. The court
instructed the jury with CALCRIM No. 375 on evidence of uncharged
criminal conduct to prove identity, intent, and knowledge for the charged
4
remote instruction because of the COVID pandemic. Washington was still
living in Riverside County.
Washington taught an honors math class. In October 2020, E.P.
transferred into his class as a 14-year-old freshman. E.P. was the only
freshman in the class. E.P. discussed his age with Washington and
Washington knew he was 14. Washington told E.P. he was impressed E.P.
was in the class as a freshman.
During the school year, E.P. and Washington began playing Fortnite
together online. They had casual conversations with each other using a voice
chat feature while playing Fortnite. E.P. also communicated with
Washington through Snapchat, Instagram, and TikTok.
E.P. turned 15 in March 2021. In April 2021, the school opened again
for optional in-person instruction. E.P. chose to attend in person, but most
other students stayed online. E.P. met Washington for the first time in
person and attended Washington’s class in person until the school year
ended.
E.P. continued communicating with Washington over the summer of
2021. They played Fortnite together late at night, had private conversations,
and had a SnapChat streak of 400 consecutive days. Washington sent photos
of himself smoking marijuana and dancing. E.P. came to consider
Washington a friend.
offenses. The court also gave CALCRIM No. 1191A on use of evidence of
uncharged crimes to prove disposition to commit sexual offenses and
CALCRIM No. 1191B on use of evidence of charged offenses to prove
disposition to commit the other charged sexual offenses. Washington does
not challenge any of the court’s evidentiary rulings or jury instructions on
appeal.
5
When school resumed in the fall of 2021, Washington was no longer
E.P.’s teacher but they continued to play Fortnite and message each other on
SnapChat. In late 2021, Washington began discussing his sex life with E.P.
He talked to E.P. about oral sex and said he performed oral sex on his
roommate often.
In 2022, Washington sent E.P. photos via SnapChat depicting his own
genitals and himself performing oral sex on another man. E.P. began to
document the messages he was receiving from Washington by taking photos
of them on his cell phone. These included a photo of Washington wearing red
underwear with an erect penis, a photo of a fully naked male body, videos and
photos of naked penises, and a photo of Washington wearing a thong.
In August 2022, after E.P. posted a photo of himself shirtless on
SnapChat, Washington told him on a Fortnite call that he “looked attractive
but a little anorexic.” Washington began asking E.P. to send naked photos of
himself. This made E.P. feel a “new level” of uncomfortable. In October
2022, E.P. disclosed the inappropriate communications to his father, who
contacted the school principal. The principal referred the matter to the
police. E.P. and his father gave the police access to E.P.’s phone and laptop.
D. Victim A.B. – Counts 3 and 4
In November 2021, while he was still teaching at the Pasadena school,
Washington began communicating with 12-year-old Florida resident A.B. on
a website that allowed strangers to meet online. They talked face-to-face on
camera. They “interviewed” each other and discussed video games, their
ages, and where they lived.
Washington brought up ways for A.B. to make money and offered to
post pictures of him. Washington claimed he earned $10,000 each month
from his own account on OnlyFans, a website for posting sexually explicit
6
content. A.B. said he wanted to buy a new gaming station, so Washington
offered to “light up [A.B.’s] Cash App.” Cash App is a way to send and receive
money. When A.B. asked how to get an OnlyFans account, Washington
answered he would need “to be 18 for starters.”
A.B. began sending nude and sexually explicit photos and videos of
himself to Washington. Washington took over A.B.’s Twitter account for him,
posted the nude photos of A.B., charged people to join A.B.’s “Twitter circle,”
and paid A.B. via Cash App. Washington instructed A.B. on the content of
the photos, including telling him how to hold his penis so it appeared bigger
and longer. Washington also sold a video of A.B. to a third party on A.B.’s
behalf. The relationship between Washington and A.B. continued through
the fall of 2022.
In a subsequent search of Washington’s SnapChat account, police found
multiple photographs and videos of A.B. These included photographs of
A.B.’s face, body, and penis, as well as images of him masturbating and
ejaculating.
E. Victim A.T. – Count 5
In the fall of 2022, A.T. was 14 years old and a freshman in high school
in Riverside County. Washington was a longtime family friend who played
video games with A.T. A.T. spent time alone with Washington at his house
playing video games together and sometimes smoking marijuana. At times,
Washington’s mother or his housemates were present.
On occasion, Washington came to A.T.’s house in Temecula to pick A.T.
up and bring him back to Washington’s house in Hemet. A.T. sometimes
spent the weekend at Washington’s house. They also went to the gym or ran
errands together. According to A.T., they had no sexual contact of any kind.
Washington never talked to him about having sex or wanting to have sex and
7
never showed him pornographic images. They exchanged messages and
photos on Instagram about getting high. They also sent each other “selfie[s]”
to show progress of their gym workouts.
In the search of Washington’s SnapChat account, law enforcement
discovered a video Washington had sent to A.T. The video showed
Washington completely naked with his hand on his own penis.
F. Grooming Evidence
At trial, the People elicited expert testimony on grooming of child
victims from DA Investigator Bertram Blinn, who specializes in internet
crimes against children. Investigator Blinn described online grooming as an
escalating pattern of desensitizing behavior from a trusted adult, including
communicating across multiple platforms, sending explicit images, and
requesting explicit images. In his opinion, Washington’s communications
with J.Z. were consistent with this type of grooming behavior.
Based on his training and experience, Investigator Blinn testified that
about 75 percent of the time when an adult sends explicit images to a law
enforcement officer posing as a child online, the person will then arrange a
meeting and show up with the intent to have a sexual relationship. However,
not all adults who engage in this type of grooming behavior “share the same
end goal.” Some “live in fantasy” and just want to receive child pornography;
some “want to build their child porn collection”; and some “get off” on having
the children touch themselves sexually.
G. Washington’s Testimony
Washington testified in his own defense. He denied sending J.Z. the
videos of a woman pretending to open a water bottle with her vagina and a
boy’s penis. Washington initially testified these could have been random
8
videos he shared to all his followers, but later claimed that A.T. had told him
he was the one who sent the videos to J.Z.
As to E.P., Washington testified he did not know that E.P. was only a
freshman in his honor’s math class and did not have any conversation with
E.P. about his age. Washington continued his relationship with E.P. for over
a year even after he stopped teaching in Pasadena in May 2021. Washington
was no longer teaching there when he first discussed sex with E.P. in October
2022. According to Washington, he thought E.P. was 19 years old by then.
Washington claimed that when the police informed him of E.P.’s true age, “I
was flabbergasted because I don’t have any interest in children . . . .”
With respect to one of the videos E.P. testified he received from
Washington, Washington acknowledged that the video showed “[s]omeone
playing with their penis” but could not recall whether he sent it to E.P. He
denied asking E.P. to send him naked photos of himself. He denied talking to
E.P. about giving oral sex to his roommate.
Washington admitted assisting A.B. with his Twitter account and
posting naked photos for him for money. However, he believed A.B. was at
least 18 years old because they met on a website for adults and A.B.’s profile
had a “no one under 18” symbol. Washington did not learn A.B.’s true age
until he was contacted by the police.
As to A.T., Washington admitted using marijuana with him.
Washington denied sending the video of himself naked directly to A.T.
Instead, he sent the video to a group chat that included A.T. The purpose of
the video was to show Washington’s “gym gains.” Washington explained that
his hand was on his penis to make sure it was covered.
9
DISCUSSION
I
As noted, the jury convicted Washington in count one of distributing,
sending, or exhibiting harmful material to J.Z. in violation of section 288.2,
subdivision (a)(2). On appeal, he challenges the sufficiency of the evidence to
support the intent element of this offense, which required that he must have
shared the material with J.Z. “with the intent or for the purposes of engaging
in sexual intercourse, sodomy, or oral copulation with the other person, or
with the intent that either person touch an intimate body part of the other.”
(§ 288.2, subd. (a)(1).) Washington argues that: (1) Investigator Blinn’s
grooming testimony is not proof beyond a reasonable doubt of the required
intent; (2) there is no evidence Washington asked J.Z. or any of the other
victims to meet with him or inquired where they lived or fantasized about
being together; and (3) there is no evidence he engaged or attempted to
engage in any sex acts with a minor. The People respond that the totality of
Washington’s conduct with J.Z. and the other minor victims, coupled with
Investigator Blinn’s testimony, was sufficient circumstantial evidence for the
jury to infer he had the necessary intent to engage in sexual conduct or
intimate touching with J.Z.
We apply the substantial evidence standard in reviewing a claim of
insufficient evidence. We must examine the record “in the light most
favorable to the judgment to determine whether it contains evidence that is
reasonable, credible, and of solid value from which a trier of fact could find
the defendant guilty beyond a reasonable doubt.” (People v. Zaragoza (2016)
1 Cal.5th 21, 44.) In doing so, we “presume in support of the judgment the
existence of every fact the jury could reasonably have deduced from the
evidence.” (Ibid.) The relevant question for purposes of substantial evidence
10
review “is whether, in light of all the evidence, ‘any reasonable trier of fact
could have found the defendant guilty beyond a reasonable doubt.’ ” (Ibid.)
Reversal based on insufficient evidence is warranted only if “it appears ‘that
upon no hypothesis whatever is there sufficient substantial evidence to
support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Substantial evidence includes circumstantial evidence and any
reasonable inferences that can be drawn from the evidence. (People v. Clark
(2011) 52 Cal.4th 856, 943.) We presume every reasonable inference from the
evidence to support the judgment. (People v. Covarrubias (2016) 1 Cal.5th
838, 890.)
“While ‘it is the jury, not the appellate court which must be convinced
of the defendant's guilt’ [citation], in order to affirm, we must be able to
conclude the evidence is sufficient to have convinced that jury of the
defendant’s guilt beyond a reasonable doubt.” (People v. Lara (2017)
9 Cal.App.5th 296, 320 (Lara); see also Jackson v. Virginia (1979) 443 U.S.
307, 317–320 [conviction based on insufficient evidence violates due process
clause of Fourteenth Amendment].) In making this determination, we must
“ ‘necessarily take [into] account’ ” the prosecution’s burden of proof beyond a
reasonable doubt at trial. (People v. Ware (2022) 14 Cal.5th 151, 167.) The
question “is whether a reasonable trier of fact could have regarded the
evidence as satisfying this standard of proof.” (Conservatorship of O.B. (2020)
9 Cal.5th 989, 1009.)
We begin with Investigator Blinn’s testimony that 75 percent of adults
who send explicit images to undercover law enforcement agents posing as
children online will arrange a meeting and show up with the intent to have a
sexual relationship. Although this testimony was admitted without objection,
we caution that California courts have excluded other similar forms of
11
probability evidence. (See, e.g., People v. Collins (1968) 68 Cal.2d 319, 327–
332; People v. Julian (2019) 34 Cal.App.5th 878, 880, 885–889; People v.
Wilson (2019) 33 Cal.App.5th 559, 568–572 (Wilson).) “Statistical
odds . . . are not a substitute for admissible evidence to decide the guilt or
innocence of the defendant.” (Julian, at p. 880.) We will not decide the
admissibility of this probability evidence, however, because we must consider
all admitted evidence in our sufficiency of evidence review. (See People v.
Panah (2005) 35 Cal.4th 395, 476 [incompetent testimony received without
objection takes on the attributes of competent proof when considered on the
sufficiency of evidence to support a finding].)
Washington contends that Investigator Blinn’s 75 percent figure is not
proof beyond a reasonable doubt of his intent to engage in sexual conduct or
intimate touching with J.Z. Even assuming the accuracy of this estimate, we
agree it does not constitute proof beyond a reasonable doubt. Taken at face
value, this figure necessarily means that one in four adults who engage in
this type of grooming conduct do not attempt to meet with the minor in
person. According to Investigator Blinn, the “end goal” is not the same for
everyone who engages in such conduct: some “live in fantasy” and just want
to receive child pornography; some “want to build their child porn collection”;
and some just “get off” on having the children touch themselves sexually.
Investigator Blinn’s testimony did nothing to assist the jury in
determining whether Washington fell into the 75 percent group or the 25
percent group. As the Wilson court noted in discussing similar statistical
evidence that only 1 to 6 percent of sexual abuse allegations are false, “that
fact would not be helpful to the jury because it tells the jury nothing about
whether this particular allegation is false.” (Wilson, supra, 33 Cal.App.5th at
p. 571.) Investigator Blinn’s probability testimony was therefore insufficient
12
to prove beyond a reasonable doubt that Washington acted with the intent to
commit sexual conduct or intimate touching with J.Z.
We must therefore consider whether the other evidence was sufficient
to prove such an intent when considered in combination with Investigator
Blinn’s testimony. We conclude it was not. Although there was ample
evidence of Washington’s sexual attraction to children and child pornography,
there was no evidence that he had ever engaged or attempted to engage in
any sexual conduct or intimate touching with a minor, or that he had
expressed an intent to do so, or that he had made any arrangements to meet
a minor in person for such a purpose. The record is devoid of evidence of the
type offered to prove intent in other cases of this nature. (See, e.g., People v.
Nakai (2010) 183 Cal.App.4th 499, 509–510 [defendant sent images of his
own erect penis along with messages such as “ ‘Will you suck my dick?’ ” and
“ ‘We can just lick each other, oral’ ”]; People v. Hsu (2000) 82 Cal.App.4th
976, 981 [defendant sent boy explicit images of himself and “offered to engage
in specific sexual acts, and invited the boy to meet him at his house”].)
In his communications with J.Z., Washington never made any
suggestion that they meet in private or engage in any sexual conduct or
touching. In two years of constant interactions with E.P. and one year of
interactions with A.P., Washington also never attempted to meet with either
of them privately or proposed engaging in any type of sexual conduct
together. When E.P. returned to Washington’s class in person at the end of
the 2020–2021 school year, Washington made no sexual overture or attempt
to be alone with E.P. Moreover, Washington had regular contact with A.T. in
person, including picking A.T. up at his home in Temecula, driving him to
and from Washington’s home in Hemet, using marijuana with A.T. at
Washington’s home, having A.T. spend the weekend at his home, and going to
13
the gym and running errands together. Yet there is no evidence Washington
ever committed or attempted to commit any sexual act or intimate touching
with A.T. or expressed any intent to do so.
The People recite the overall evidence of Washington’s disturbing
conduct with all four minor victims, but they do not connect the dots to
explain how any of this evidence supports an inference that Washington
intended to commit a sexual act or intimate touching with J.Z. Although the
evidence is overwhelming that Washington committed criminal conduct by
soliciting and exchanging sexually explicit photos, videos, and messages with
the minor victims, and possessing and producing child pornography, the
charge in count one required evidence of an intent to commit an entirely
different criminal act involving actual sexual contact or intimate touching
with a minor. Other than Investigator Blinn’s 75 percent probability figure,
the People cite no evidence to support a finding beyond a reasonable doubt
that Washington intended to make the leap from exchanging sexually explicit
material online to in-person child molestation.
In these circumstances, even when viewed in the light most favorable
to the prosecution, the totality of the evidence does not establish beyond a
reasonable doubt that Washington sent harmful material to J.Z. with an
intent to have sexual or intimate contact with him. “ ‘Although we must
draw all reasonable inferences in favor of the prosecution, a “reasonable”
inference is one that is supported by a chain of logic, rather than, as in this
case, mere speculation dressed up in the guise of evidence.’ ” (Lara, supra,
9 Cal.App.5th at p. 324.) “A jury must avoid unreasonable inferences and not
resort to imagination or suspicion. Mere conjecture, surmise, or suspicion is
not the equivalent of reasonable inference and does not constitute proof.”
(People v. Collins (2025) 17 Cal.5th 293, 307–308 [cleaned up].) Washington’s
14
conduct with the victims was unquestionably harmful, but on this record, the
evidence of his specific intent to commit a sexual or intimate act with J.Z.
does not rise to a level beyond bare suspicion or conjecture.
We therefore reverse Washington’s conviction on count one and the
eight-month consecutive sentence imposed for that count. This also requires
us to remand the matter for full resentencing. (People v. Buycks (2018)
5 Cal.5th 857, 893 [remand for full resentencing required where part of
sentence is stricken on review].)
II
Washington next raises two sentencing issues under section 654. First,
he argues that section 654 precluded dual punishment for both counts one
and two involving victim J.Z. Second, he makes the same argument for
counts three and four involving victim A.B. The first of these issues is moot
and cannot arise again on remand because we are reversing the conviction in
count one. The second is also technically moot because we are remanding for
full resentencing, but we will nevertheless decide the issue for the trial
court’s guidance on remand.
The jury convicted Washington of two crimes involving victim A.B. In
count three, the jury found Washington guilty of possession of child sexual
abuse materials depicting A.B. (§ 311.11, subd. (a)). In count four, the jury
found Washington guilty of production of child sexual abuse materials
depicting A.B. (§ 311.4, subd. (b)). At sentencing, the court imposed an upper
term sentence of eight years for count four and a consecutive eight-month
sentence for count three. Washington argues the court violated section 654
by imposing dual punishment for these two crimes. We disagree.
Section 654 prohibits multiple punishment for an “act or omission” that
is punishable in different ways by different provisions of law. This restriction
15
applies not only to a single act or omission, but also an indivisible “course of
conduct” violating multiple provisions. (People v. Latimer (1993) 5 Cal.4th
1203, 1207–1209, internal quotation marks omitted.) Whether a course of
conduct is divisible for purposes of section 654 depends on the intent and
objective of the defendant. (People v. Fuentes (2022) 78 Cal.App.5th 670,
680.) If multiple offenses were incident to a single objective, the defendant
may be punished for no more than one. (Ibid.) However, a course of conduct
divisible in time, though directed to only one objective, may give rise to
multiple violations and punishment, particularly when the offenses are
temporally separated in such a way as to afford the defendant opportunity to
reflect and renew his intent before committing the next one, thereby
aggravating the violation of public security or policy already undertaken.
(People v. Andra (2007) 156 Cal.App.4th 638, 640 (Andra).)
When section 654 applies, it “does not allow any multiple punishment,
including either concurrent or consecutive sentences.” (People v. Deloza
(1998) 18 Cal.4th 585, 592.) If punishment for multiple offenses is prohibited
by section 654, the court must impose sentence for one of the offenses and
stay sentence on the others. (Deloza, at pp. 591–592.) We review any express
or implied factual findings underlying the trial court’s ruling for substantial
evidence. (People v. Brents (2012) 53 Cal.4th 599, 618.) We must review the
record in a light most favorable to the trial court’s decision and assume any
facts the trial court could have reasonably deduced from the evidence
presented at trial. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
We conclude substantial evidence supports the trial court’s implied
finding that counts three and four were divisible and therefore separately
punishable. Over the period of approximately one year before his arrest,
Washington received multiple explicit images from A.B. He assisted A.B. in
16
producing some of those images―coaching him on how to pose and what to
photograph―and in selling them or posting them for money. He also
maintained the pornographic images and videos A.B. sent him, which he still
had in his possession at the time of arrest. The trial court could reasonably
have concluded that Washington’s one-year course of conduct with A.B. gave
him ample opportunity to reflect and renew his intent, making multiple
punishments permissible even if the objective was the same. (Andra, supra,
156 Cal.App.4th at p. 640.)
The record also supports a finding that Washington had two separate
objectives for the offenses. The trial court could reasonably have found that
his continued possession of the images and videos of A.B. underlying count
three (§ 311.11, subd. (a)) was for his own sexual gratification, whereas his
motive for assisting A.B. in the production of child pornography for count four
was financial (§ 311.4, subd. (b) [requiring that the production of child sexual
abuse materials be “for commercial purposes”]). If “the defendant had
multiple or simultaneous objectives, independent of and not merely
incidental to each other, the defendant may be punished for each violation
committed in pursuit of each objective even though the violations share
common acts or were parts of an otherwise indivisible course of conduct.”
(People v. Cleveland (2001) 87 Cal.App.4th 263, 267–268.) We therefore find
no section 654 violation as to counts three and four.
III
Finally, Washington argues that the court improperly imposed an out-
on-bail enhancement (§ 12022.1) for his conviction on count five because it
was for a misdemeanor. He contends that section 12022.1 may not be applied
to a misdemeanor conviction. In response, the People assert that the section
12022.1 enhancement was actually imposed for the felony counts charged in
17
counts three and four as to victim A.B., rather than the misdemeanor
charged in count five as to victim A.T. The People acknowledge that the
court minutes and abstract of judgment indicate it was imposed for count
five, but assert this was a clerical error that should be corrected. Although
we are remanding for resentencing, we elect to decide this question for the
trial court’s guidance on remand.
We agree with the People. The operative information set forth the five
charged counts, then separately alleged the out-on-bail enhancement as to
“the above listed felony offense(s) . . . .” (Italics added.) Thus, the
enhancement was not alleged for the misdemeanor charged in count five as to
victim A.T. Moreover, when the trial court found the out-on-bail
enhancement allegation true and then imposed sentence on it, the court
never suggested it was doing so as to count five. On the contrary, the
evidence and arguments presented at the court trial on the enhancement
make clear it was alleged and found true because Washington was out on bail
for the charged crimes against J.Z. (originally charged in case number
SWF2100477) when he committed the offenses against A.B. (originally
charged in case number SWF2300823). The crimes originally charged in
SWF2300823 were all felonies.
We therefore agree with the People that the court found true the out-
on-bail allegation for the felonies involving victim A.B. and intended to
impose this enhancement for one of those felonies. If the court imposes the
out-on-bail enhancement again on remand, it should specify whether it is
imposing the enhancement for count three or count four. (See People v.
Augborne (2002) 104 Cal.App.4th 362, 375–377 [§ 12022.1 out-on-bail
enhancements go to nature of offender and may be imposed only once in a
particular case].)
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DISPOSITION
The conviction for count one is reversed and the matter is remanded to
the trial court for full resentencing consistent with this opinion. The
judgment is otherwise affirmed.
BUCHANAN, Acting P. J.
WE CONCUR:
CASTILLO, J.
RUBIN, J.
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