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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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, 

 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) 
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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.