P. v. Martinez CA3 ( 2013 )

Filed 6/19/13 P. v. Martinez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, C071584
Plaintiff and Respondent, (Super. Ct. No. CRF11-5353)
v.
MICHAEL SHANE MARTINEZ,
Defendant and Appellant.
Convicted by a jury of committing dozens of counts of sex crimes against a child
under 10 years old, and sentenced to a determinate prison term of 10 years eight months
consecutive to an indeterminate prison term of 335 years to life, defendant Michael Shane
Martinez appeals his determinate term convictions on five counts of possessing child
pornography.
Defendant contends his simultaneous possession of multiple pornographic images
violate a single code section—Penal Code section 311.11, subdivision (a) (hereafter
section 311.11(a))—and constitutes only one offense. (See People v. Hertzig (2007)
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156 Cal.App.4th 398, 403 (Hertzig).) The People agree that under the circumstances of
this case, defendant can be convicted of only one count of possessing child pornography,
and that his determinate sentence should be reduced accordingly. We also agree, and
shall order four of defendant’s five convictions of possessing child pornography stricken,
and remand the matter for resentencing.
BACKGROUND
The details of defendant’s sex crimes are not material to the issues on appeal. It is
sufficient to state that, when a search warrant was executed on defendant’s home after the
victim reported defendant’s conduct, defendant’s cell phone was seized and several video
and still images of sex acts involving the victim were found on defendant’s cell phone.
In addition to the sex crime charges ultimately alleged in this case, defendant was
charged in counts 14, 15, 16, 32 and 54 with possessing child pornography in violation of
section 311.11(a).1 Following trial, the jury found defendant guilty on all five possession
counts.
At sentencing, the trial court selected another count for which a determinate
sentence was imposed as the principal term. For each child pornography possession
count, it imposed a prison term of one-third the statutory middle term, i.e., eight months.
On counts 14, 15, 32 and 54, the court ordered the eight-month sentence to be
1 Section 311.11(a) provides in relevant part: “Every person who knowingly possesses
or controls any matter, representation of information, data, or image, including, but not
limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video
laser disc, computer hardware, computer software, computer floppy disc, data storage
media, CD-ROM, or computer-generated equipment or any other computer-generated
image that contains or incorporates in any manner, any film or filmstrip, the production
of which involves the use of a person under the age of 18 years, knowing that the matter
depicts a person under the age of 18 years personally engaging in or simulating sexual
conduct, as defined in subdivision (d) of [Penal Code] Section 311.4, is guilty of a
felony . . . .”
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consecutive to all other terms; on count 16, it ordered the upper term of three years to run
concurrent with the principal determinant term. The court also imposed an aggregate
indeterminate prison term of 335 years to life.
DISCUSSION
Two appellate courts have addressed the question of whether simultaneous
possession of multiple items of child pornography constitutes multiple offenses or a
single offense: Hertzig, supra, 156 Cal.App.4th 398 and People v. Manfredi (2008)
169 Cal.App.4th 622 (Manfredi).
In Hertzig, the defendant had multiple videos of children engaged in sexual acts on
his computer. (Hertzig, supra, 156 Cal.App.4th at p. 400.) The prosecution charged the
defendant with, and a jury convicted him of, 10 counts of possession of child
pornography. (Id. at pp. 400-401.) On appeal, the defendant argued his possession of
multiple child pornography videos constituted a single violation of section 311.11(a).
(Hertzig, at p. 401.) This court agreed. We reviewed cases involving multiple
convictions for other types of possession crimes and derived two distinct principles from
them. (Id. at p. 402.) First, the simultaneous possession of multiple items of one type of
contraband constitutes a single violation. (Id. at pp. 402-403.) Second, the simultaneous
possession of two types of contraband in the same location constitutes a single violation.
(Id. at p. 403.) Applying these principles, we concluded the defendant’s possession of
multiple pornographic videos on his laptop computer constituted a single act of
possession under section 311.11(a). (Hertzig, at p. 403.)
In Manfredi, supra, 169 Cal.App.4th 622, the defendant was also charged with
multiple counts of possession of child pornography in violation of section 311.11(a),
based on his simultaneous possession in his home of multiple images of child
pornography found on different media (specifically, on “multiple computers, multiple
hard drives, multiple discs, and multiple tapes” (Manfredi, at p. 625), rather than on one
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computer as in Hertzig (Manfredi, at pp. 624-625). The Court of Appeal, Fifth Appellate
District, affirmed the trial court’s dismissal following the sustaining of a demurrer to all
but one of the section 311.11(a) possession of child pornography counts, holding the
defendant’s “simultaneous possession of multiple child pornography materials at the
same location is chargeable as but one criminal offense under [section 311.11(a)].”
(Manfredi, supra, 169 Cal.App.4th at p. 624.)
The parties agree that Hertzig and Manfredi apply here and permit defendant to be
convicted of only a single count of possessing child pornography, as the video clips and
still photographs were all recovered from defendant’s cell phone when he was arrested.
We also agree. Under these circumstances, the proper remedy is a remand for
resentencing. (Hertzig, supra, 156 Cal.App.4th at p. 403.)
DISPOSITION
Four of the five counts for possessing child pornography in violation of section
311.11(a) are reversed and dismissed, and the case is remanded to the trial court for
resentencing. In all other respects, the judgment is affirmed.
BUTZ , J.
We concur:
RAYE , P. J.
HULL , J.
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