P. v. Martinez CA3

Filed 6/19/13 P. v. Martinez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

1

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.