People v. Martinez CA3

Filed 1/27/21 P. v. Martinez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C089269

Plaintiff and Respondent, (Super. Ct. No. STK-CR-FE-2018-0002284) v.

JOE HENRY MARTINEZ, JR.,

Defendant and Appellant.

A jury found defendant Joe Henry Martinez, Jr., guilty of possessing child pornography. The trial court sentenced him to the middle term of two years in state prison. On appeal, defendant contends the trial court abused its discretion in admitting evidence of uncharged conduct under Evidence Code section 1101 resulting in the violation of his right to due process. We conclude the trial court did not abuse its discretion and affirm the judgment.

1

FACTUAL AND PROCEDURAL BACKGROUND In December 2017, Sergeant Andrew Theodore conducted a proactive search of Internet protocol (IP) addresses in San Joaquin County for files containing images of children being sexually abused. He received notification of an IP address that contained “images of infants slash toddlers and prepubescent children being sexually assaulted.” There were approximately 4,669 files, 4,645 of those files were “of investigative interest regarding child exploitation.” Theodore was able to download 207 of those files. He confirmed those files to be images of children being sexually exploited and abused. (One hundred of those images would later be shown to the jury.) Sergeant Theodore confirmed the IP address was registered to defendant. Theodore then obtained a search warrant for defendant’s home, where he lived with his wife and three minor children. He, along with other officers, executed that warrant on February 14, 2018. In the master bedroom of defendant’s home, the officers found a desktop computer. Just below the computer’s screen, on the left, the officers also found a “thumb drive.” An initial screening of the thumb drive revealed images of children being sexually exploited and abused. The officers screened other devices in the home and none of the other devices outside of the master bedroom contained similar images. After advising defendant of his Miranda1 rights, Sergeant Theodore interviewed defendant. Defendant told Theodore the computer in the master bedroom was his. Defendant said his wife did not use the computer in the master bedroom and she had her own computer in the living room. Theodore also found a laptop computer in the home, which defendant identified as his daughter’s.