P. v. >Martinez>

 

 

 

 

 

 

 

 

 

 

 

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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   MICHAEL SHANE MARTINEZ,                           Defendant and Appellant.

C071584   (Super. Ct. No. CRF11-5353)

 

 

            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)
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).href="#_ftn1"
name="_ftnref1" title="">[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 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 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.