Is a sentence for possessing child pornography and producing child pornography for a commercial purpose stayed under section 654 of the Criminal Code?

Defendant argues that punishment for counts 5 and 7 (possessing child pornography and producing child pornography for a commercial purpose, respectively) must be stayed under section 654 because they were part of the same, indivisible course of conduct as that supporting the human trafficking convictions (counts 1 and 2).¹ He also argues that, even assuming counts 1 and 2 can be separated from counts 5 and 7, the punishment for count 5 must be stayed because the intent underlying it was indivisible from the intent underlying count 7. Although defendant did not raise a section 654 objection regarding counts 5 and 7 at sentencing, a sentence that violates section 654 is unauthorized and therefore reviewable in the first instance on appeal. (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 3.)

Section 654, subdivision (a) provides: "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 "not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction." (People v. Perez, supra, 23 Cal.3d at p. 551.) Whether a course of conduct is indivisible depends on the intent and objective of the defendant. (Ibid.) Separate punishment is permissible if the defendant had "multiple or simultaneous objectives, independent of and not merely incidental to each other." (People v. Cleveland (2001) 87 Cal.App.4th 263, 267 (Cleveland).) And even offenses that are aimed at a single intent or objective can be punished separately to the extent they are "temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public

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