Filed 4/21/16 P. v. Martinez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or 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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DANNY ALBERT MARTINEZ,

Defendant and Appellant.

 B264922

 (Los Angeles County

 Super. Ct. No. BA421698)

APPEAL from a judgment of the Superior Court of Los Angeles County. 

Drew E. Edwards, Judge. Affirmed.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., 

Supervising Deputy Attorney General, and Stacy S. Schwartz, Deputy Attorney General, 

for Plaintiff and Respondent.

* * * * * *
2

Danny Albert Martinez (defendant) stands convicted of seven counts of 

committing lewd acts upon a child (Pen. Code, § 288, subd. (a)),

1

five upon one child and 

two upon a different child. Because defendant was convicted of “committing a 

[designated sex] offense . . . against more than one victim,” the trial court applied our 

state’s “One Strike” law (§ 667.61) and imposed a sentence of 15 years to life on each of 

the seven counts. On appeal from the resulting 110-year prison sentence, defendant 

argues that the trial court was limited to imposing just two 15-year-to-life sentences, one 

for each different victim. This argument has been rejected by every court to have 

considered it. We agree with these other decisions, and affirm.

FACTS AND PROCEDURAL BACKGROUND

Between 1997 and 2007, defendant lived with his minor stepdaughter, Crystal. 

During that time, defendant repeatedly engaged in sexual conduct with her: When she 

was four years old, defendant on one occasion placed her on his groin and rubbed his 

penis against her vagina and on another occasion touched her vagina with his hand. 

When she was eight, he performed oral sex on her and regularly attempted to have 

vaginal intercourse with her until she told him it hurt. And when she was 12, defendant 

would have oral and vaginal sex with her a few times a week. 

Toward the end of this same time frame, in 2006 and 2007, defendant’s biological 

daughter, A., would sometimes visit. During one of those visits, when A. was 12 or 13 

years old, defendant kissed her “in a romantic sort of way” with his tongue and thrust his 

knee against her vagina. A week later, he again kissed her, and also groped her breasts 

and slid his fingers under her clothing to penetrate her vagina. 

The People charged defendant with a total of eight counts of committing a lewd 

act upon a child (§ 288, subd. (a)), each tied to a separate incident, six involving Crystal 

and two involving A. The People also charged defendant with a single count of 

continuous sexual abuse (§ 288.5, subd. (b)) against Crystal. The People further alleged 

 

1 Unless otherwise indicated, all further statutory references are to the Penal Code.
3

that these crimes were subject to sentencing under the One Strike law (§ 667.61), and that 

defendant’s 1994 conviction for first-degree residential burglary (§ 459) constituted a 

“strike” under our “Three Strikes” law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(j)) as 

well as a prior “serious” felony (§ 667, subd. (a)). 

A jury convicted defendant of five counts of committing a lewd act against 

Crystal, and two counts of committing a lewd act against A.; the jury also found true the 

allegation that defendant had committed a sex offense against more than one victim. The 

jury acquitted defendant of one of the lewd act counts against Crystal; the trial court had 

dismissed the continuous sexual abuse count prior to trial. 

The trial court imposed a 110-year prison sentence. Because of the jury’s multiple 

victim finding, the court applied the One Strike law and imposed the minimum 15-yearto-life sentence for each of the seven lewd act counts. The court ran the sentences 

consecutively, and added an additional five years for the prior “serious” felony 

conviction. 

Defendant filed a timely appeal. 

DISCUSSION

On appeal, defendant argues that the trial court misapplied the One Strike law 

because, in his view, its multiple victim enhancement only authorizes one life sentence 

per victim—not the seven that were imposed here. This argument, or variants of it, have 

been raised and rejected time and again. (See People v. Andrade (2015) 238 Cal.App.4th 

1274, 1305 (Andrade); People v. Valdez (2011) 193 Cal.App.4th 1515, 1522 (Valdez); 

People v. Stewart (2004) 119 Cal.App.4th 163, 174 (Stewart); People v. Murphy (1998) 

65 Cal.App.4th 35, 38 (Murphy); People v. Jones (1997) 58 Cal.App.4th 693, 719 

(Jones); cf. People v. Desimone (1998) 62 Cal.App.4th 693, 698, fn. 2 [not reaching the 

issue].) Indeed, our Supreme Court has observed that “[t]he One Strike scheme . . . 

contemplates a separate life time for each victim attacked on each separate occasion.” 

(People v. Wutkze (2002) 28 Cal.4th 923, 930-931 (Wutkze), italics added.) We 

independently examine this question of statutory construction (People v. Tran (2015) 61 

Cal.4th 1160, 1166), and join with these other courts in rejecting defendant’s argument.
4

“Since its adoption in 1994, California’s One Strike law (§ 667.61) has set forth an 

‘alternative and harsher sentencing scheme for certain sex crimes.’ (People v. Anderson

(2009) 47 Cal.4th 92, 102, 107.) For the sex crimes falling with its reach (§ 667.61, 

subd. (c) [enumerating crimes]), a first-time offense can result in one of two heightened 

sentences. The sentence will be 15 years to life if the jury finds (or the defendant admits) 

one or more of the ‘circumstances’ listed in section 667.61, subdivision (e). (§ 667.61, 

subds. (b) & (e).) The sentence will be 25 years to life if the jury finds (or the defendant 

admits) either (1) two of the ‘circumstances’ listed in section 667.61, subdivision (e); or 

(2) one of the more aggravated ‘circumstances’ listed in section 667.61, subdivision (d). 

(§ 667.61, subds. (a), (d) & (e).).” (People v. Perez (2015) 240 Cal.App.4th 1218, 1223.)

The One Strike law applies to the crime of committing a lewd or lascivious act 

against a child (§ 667.61, subd. (c)(8)), and the jury in this case found true, for each 

crime, one of the “circumstances” listed in section 667.61, subdivision (e)—namely, that 

defendant had been convicted of “committing [that] offense against more than one 

victim” (§ 667.61, (e)(4)). As a result, the One Strike law prescribes a sentence of 15 

years to life for each of those offenses. (§ 667.61, subd. (b).) 

Defendant nevertheless appears to raise five arguments in support of his proffered 

construction of the One Strike law. First, he argues that the current version of section 

667.61, subdivision (f), reflects our Legislature’s intent to “avoid[] an unreasonable 

application of the multiple-victim provision to each and every qualifying offense 

committed against the same victim.” Subdivision (f) does no such thing. That 

subdivision provides that (1) if the People allege and prove only one circumstance that 

could be used either to trigger a heightened, One Strike law sentence for a crime or to 

trigger some other non-One Strike law enhancement, the sentencing court must use that 

circumstance in whichever manner will result in the longest sentence, and (2) if the 

People allege and prove more than one circumstance that could be used to trigger a 

heightened, One Strike law sentence for a crime, the sentencing court must use the 

minimum number of circumstances necessary to impose the highest One Strike law 

sentence and use the remaining circumstances to impose additional punishment under any 
5

other applicable laws.

2

(§ 667.61, subd. (f).) “Nothing in [this provision] even hints at an 

intent to limit imposition of the [15 year to life One Strike law] term, based on the 

multiple victim circumstances. Rather, it evinces the intent to ensure the greatest 

possible punishment under that sentencing scheme.” (Valdez, supra, 193 Cal.App.4th at 

p. 1523.)

Second, defendant argues that a now-repealed subdivision of the One Strike law—

subdivision (g)—lends support to his argument. That subdivision, which was in effect 

until 2006 (and thus in effect during some of defendant’s crimes), provided that a 

separate One Strike Law sentence “shall be imposed on the defendant once for any 

offense or offenses committed against a single victim during a single occasion.” (Former 

§ 667.61, subd. (g).) Defendant does not dispute that each of his separate convictions 

against Crystal and A. occurred on different occasions; nor could he, because the 

evidence at trial indicated multiple lewd acts against each victim separated in time by 

days, months or years. Instead, defendant argues that subdivision (g) evinces a legislative 

intent that a defendant only receive one life sentence per victim when the multiple victim 

circumstance is the only One Strike Law circumstance found to be true. Other courts 

have declared this to be a “tortured and implausible reading” of subdivision (g) (Jones,

supra, 58 Cal.App.4th at p. 719), and we agree: “Subdivision (g) carves out the 

commission of multiple offenses against a single victim on a single occasion, and, in that 

 

2

In full, the text reads: “If only the minimum number of circumstances specified in 

subdivision (d) or (e) that are required for the punishment provided in subdivision (a), 

(b), (j), (l), or (m) to apply have been pled and proved, that circumstance or those 

circumstances shall be used as the basis for imposing the term provided in subdivision 

(a), (b), (j), (l), or (m) whichever is greater, rather than being used to impose the 

punishment authorized under any other provision of law, unless another provision of law 

provides for a greater penalty or the punishment under another provision of law can be 

imposed in addition to the punishment provided by this section. However, if any 

additional circumstance or circumstances specified in subdivision (d) or (e) have been 

pled and proved, the minimum number of circumstances shall be used as the basis for 

imposing the term provided in subdivision (a), (j) or (l) and any other additional 

circumstance or circumstances shall be used to impose any punishment or enhancement 

authorized under any other provision of law.” (§ 667.61, subd. (f).)
6

situation only, it limits the trial court to imposing a single indeterminate term. It does not 

prohibit the imposition of multiple indeterminate terms for multiple offenses committed 

against multiple victims on multiple occasions.” (Jones, at p. 719, italics omitted; see 

also Desimone, supra, 62 Cal.App.4th at pp. 697-699 [reaching same conclusion].)

Third, defendant suggests that the multiple victim circumstance under the One 

Strike law is a less aggravated circumstance than the other circumstances in section 

667.61, subdivision (e). To be sure, the other circumstances that are listed in subdivision 

(d) and (e) and that trigger heightened sentences are different in kind from the multiple 

victim circumstance insofar as they pertain to “the manner of committing the crime” or a 

defendant’s prior convictions. (Desimone, supra, 62 Cal.App.4th at p. 697.) But the 

multiple victim circumstance is no different in severity. To the contrary, our Supreme 

Court has commented that “persons convicted of sex crimes against multiple victims . . .

‘are among the most dangerous’” (Wutzke, supra, 28 Cal.App.4th at pp. 930-931), no 

doubt because such conduct reflects “the predatory nature of the perpetrator” (Murphy, 

supra, 65 Cal.App.4th at p. 41).

Fourth, defendant urges us to apply two canons of statutory construction—the 

“rule of lenity” and the rule favoring the more reasonable of two possible interpretations 

of a statute. These canons are helpful tools when a statute’s plain language is ambiguous. 

(See People v. Whitmer (2014) 59 Cal.4th 733, 768-769 [rule of lenity applies when a 

statute is ambiguous]; People v. Arias (2008) 45 Cal.4th 169, 177 [rule requiring “more 

reasonable” construction applies if statute is “amenable to two alternative 

interpretations”].) They are irrelevant where, as here, the statute’s text and plain meaning 

are clear. 

Lastly, defendant implores us to disagree with the precedent lined up against him. 

Although we are not bound by the decisions of our sister Courts of Appeal (Jessen v. 

Mentor Corp. (2008) 158 Cal.App.4th 1480, 1489, fn. 10), we are unpersuaded by 

defendant’s attempts to assail their logic. 
7

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, J. 

HOFFSTADT

We concur:

_______________________, Acting P.J.

ASHMANN-GERST

_______________________, J. 

CHAVEZ