1 Filed 6/19/13 P. v. Martinez CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 dete rminate 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 convi ctions on five counts of possessing child pornography.
Defendant contends his simultaneous possession of mu ltiple pornographic images violate a single code section—Penal Code se ction 311.11, subdivision (a) (hereafter section 311.11(a))—and constitute s only one offense. (See People v. Hertzig (2007)2 156 Cal.App.4th 398, 403 ( Hertzig ).) The People agree that under the circumstances of this case, defendant can be convicted of on ly one count of possessing child pornography, and that his determinate sent ence should be reduced accordi ngly. We also agree, and shall order four of defendant’s five convic tions 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 defend ant’s home after the victim reported defendant’s conduct, defenda nt’s cell phone was seiz ed 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 ultim ately 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 de fendant 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 th e 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, repres entation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, vide otape, video laser disc, computer hardware , computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated e quipment or any other computer-generated image that contains or incor porates in any manner, any film or filmstrip, the production of which involves the use of a person under the age of 18 ye ars, knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct, as defined in subdiv ision (d) of [Penal Code] Section 311.4, is guilty of a felony . . . .”3 consecutive to all other terms; on count 16, it or dered the upper term of three years to run concurrent with the principa l determinant term. The cour t 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 constitute s 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 hi m of, 10 counts of possession of child pornography. ( Id . at pp. 400-401.) On appeal, th e defendant argued his possession of multiple child pornography vide os constituted a single viola tion 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 po ssession 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 la ptop computer constituted a single act of possession under sec tion 311.11(a). ( Hertzig , at p. 403.)

In Manfredi , supra , 169 Cal.App.4th 622, the defe ndant was also charged with multiple counts of possession of child pornogr aphy in violation of section 311.11(a), based on his simultaneous possession in his home of multiple images of child pornography found on di fferent media (specifically, on “multiple computers, multiple hard drives, multiple disc s, and multiple tapes” ( Manfredi , at p. 625), rather than on one4 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 po ssession of multiple child porno graphy materials at the same location is chargeable as but one cr iminal 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 perm it defendant to be convicted of only a single count of possessing child pornography, as the video clips and still photographs were all recovered from defenda nt’s cell phone when he was arrested. We also agree. Under these circumst ances, 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 di smissed, and the case is rema nded to the trial court for resentencing. In all other respect s, the judgment is affirmed.

BUTZ , J.

We concur:

RAYE , P. J.

HULL , J.