P. v. Salazar CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCE308347/SCE309543
- Trial judge
- Honorable Peter C. Deddeh
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith L. Haller, Cynthia Aaron
Analysis
The trial court sentenced the defendant to the middle term of six years for a lewd act upon a child and calculated custody credits based on an incorrect confinement date. The Court of Appeal affirmed the six-year sentence but remanded the case for the trial court to recalculate the actual and conduct credits based on the correct confinement date.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Selection of the middle term of six years for the lewd act upon a child count“This was not arbitrary or irrational.” | abuse of discretion | not reached | agree with court The appellate court found no abuse of discretion, noting the trial court considered aggravating factors such as planning and abuse of trust, and that the court is not required to state reasons for minimizing mitigating factors like remorse. |
Calculation of actual and conduct credits“Therefore, Salazar should have been awarded 109 days of actual credit, plus 16 days of conduct credit pursuant to section 2933.1, for a total of 125 days of custody credit in case number CE308347.” | de novo | error (fact finding unsupported) | agree with court The trial court relied on a probation report with an incorrect confinement date (March 23, 2011) instead of the actual date (February 3, 2011), resulting in an undercount of credits. |
Authorities
- relied: People v. Jordan (1986) 42 Cal.3d 308 — Sentencing discretion must be affirmed unless the court exercised its discretion in an arbitrary, capricious, or patently absurd manner.
- relied: People v. Roe (1983) 148 Cal.App.3d 112 — Sentencing courts have wide discretion in weighing aggravating and mitigating factors.
- relied: People v. Salazar (1983) 144 Cal.App.3d 799 — The court need not state reasons for minimizing or disregarding circumstances in mitigation when determining the appropriate term.
- relied: People v. Giminez (1975) 14 Cal.3d 68 — Discretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered.
The appellate opinion: sound — The opinion correctly applies the abuse of discretion standard to the sentencing choice and identifies a clear factual error in the credit calculation that requires remand.
How this analysis was made · dispute it
unusual dispositionThe trial court sentenced Salazar to the middle term of six years for a lewd act on a child under 14 (Pen. Code, § 288, subd. (a)), with concurrent terms on the remaining counts in two cases, and awarded 73 and 71 days of custody credit respectively. The Court of Appeal held the middle-term selection was not an abuse of discretion and affirmed the sentence, but accepted the Attorney General's concession that the credits were miscalculated from a wrong confinement date and remanded for recalculation to 125 and 74 days.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Selection of the middle term of six years in state prison for the Penal Code section 288, subdivision (a) count“Because of Salazar's current crimes and his recidivism, it imposed the middle term for a lewd act upon a child under 14. This was not arbitrary or irrational.” | abuse of discretion | correct | agree with court The court applied the correct deferential standard from Jordan and Giminez, and correctly noted under People v. Salazar that a sentencing court need not state reasons for disregarding mitigating factors. The record as described shows the trial court weighed remorse against planning, abuse of a position of trust, and recidivism; selecting the presumptively available middle term on that basis is well within sentencing discretion. The opinion is thin on the underlying facts of 'recidivism' and does not individually address the rule 4.410 objectives, but the deferential standard answers that argument. |
Calculation of actual and conduct custody credits in both cases based on an incorrect confinement date in the probation report“Salazar contends, and respondent agrees, the trial court erred in its calculation of Salazar's actual and conduct credits based on the probation report which indicated that his date of confinement was March 23, 2011.” | unclear | error (fact finding unsupported) | agree with court The error was conceded and the opinion simply recomputes the credits from the correct confinement date of February 3, 2011. The 15 percent conduct-credit limitation of section 2933.1 properly applies because section 288, subdivision (a) is a violent felony, and 109 days x 15% yields 16 days. Applying the same 15 percent cap to the concurrent non-violent case (65 days, 9 conduct days) is consistent with the rule that section 2933.1 limits credits for the person, not per offense, though the opinion does not explain this. The result appears correct, but the opinion offers no analysis to verify the actual-day counts. |
Authorities
- relied: People v. Jordan (1986) 42 Cal.3d 308 — A sentencing choice is reviewed for abuse of discretion and must be affirmed absent a showing the court acted in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice.
- relied: People v. Roe (1983) 148 Cal.App.3d 112 — Sentencing courts have wide discretion in weighing aggravating and mitigating factors and may balance them qualitatively as well as quantitatively.
- relied: People v. Salazar (1983) 144 Cal.App.3d 799 — A sentencing court need not state reasons for minimizing or disregarding circumstances in mitigation when selecting the appropriate term.
- relied: People v. Giminez (1975) 14 Cal.3d 68 — Discretion is abused only when the court exceeds the bounds of reason considering all the circumstances; absent a clear showing the sentencing decision was arbitrary or irrational, it will not be disturbed on review.
The appellate opinion: sound with gaps — The opinion applies the correct abuse-of-discretion authorities and reaches a plainly defensible result on the middle-term challenge, and correctly accepts a conceded credit error. It is skeletal, however: it does not describe the record supporting 'recidivism,' does not engage the rule 4.410 objectives individually, and gives no authority for applying the section 2933.1 cap to the concurrent non-violent case.
Opinion
Filed 5/13/13 P. v. Salazar CA4/1 NOT TO BE PUBLISHED IN 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D061483
Plaintiff and Respondent, (Super. Ct. Nos. SCE308347/ v. SCE309543)
EDGAR M. SALAZAR, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Honorable Peter C. Deddeh, Judge. Affirmed.
Mazur and Mazur and Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, James D. Dutton and Michael T.
Murphy, Deputy Attorneys General, for Plaintiff and Respondent. Edgar M. Salazar pled guilty to one count of a lewd act upon a child under 14 (Pen. Code,1 § 288, subd. (a)) and one count of furnishing an alcoholic beverage to a person under the age of 21 (Bus. & Prof. Code, § 25658, subd. (a)). On the same day, Salazar pled guilty in another case to one count of using the personal identifying information of another (§ 530.5, subd. (a)) and one count of perjury in the application for a driver's license (§ 118, subd. (a)).
The court sentenced Salazar to serve the middle term of six years in state prison on the count of a lewd act upon a child under 14 (§ 288, subd. (a)), with 64 days of actual credits plus nine days of conduct credits, for a total of 73 days' credit. On the count of furnishing an alcoholic beverage to a person under the age of 21 (Bus. & Prof. Code, § 25658, subd. (a)), the court sentenced Salazar to serve 180 days concurrently with the six-year sentence.
The court then sentenced Salazar to the middle term of two years on the count of using the personal identifying information of another (§ 530.5, subd. (a)) and the middle term of three years on the count of perjury in the application for a driver's license (§ 118, subd. (a)). Both sentences were to be run concurrently with the sex case and with each other. The court calculated 62 days of actual credits and nine days of conduct credits, for a total of 71 days' credit.
Salazar appeals, contending the court abused its discretion in sentencing Salazar to the middle term of six years in state prison. Salazar also contends, and respondent concedes, the trial court erred in its calculation of actual and conduct credits. We 1 Statutory references are to the Penal Code unless otherwise specified. 2 conclude the sentencing court did not abuse its discretion in selecting the middle term of six years and we affirm the sentence, but we remand with instructions to the court to recalculate Salazar's actual and conduct credits in accordance with this opinion.
FACTS
Salazar committed two offenses. In 2009, Salazar applied for a driver's license using a false identity. In 2010, Salazar went to his next door neighbor's house when the parents of a 13-year-old girl were not home and touched her thigh and fondled her breast.
The girl reported the incident to her mother, who called the police.
DISCUSSION
I
SENTENCING
Salazar contends the sentencing court abused its discretion in sentencing him to the middle term of six years because it was excessive and did not meet the objectives of sentencing. We disagree.
The determination of the appropriate term is within the trial court's broad discretion and must be affirmed unless there is a "showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316.) "Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citation], and may balance them against each other in qualitative as well as quantitative terms."
(People v. Roe (1983) 148 Cal.App.3d 112, 119.)
3 Salazar argues that the trial court abused its discretion in imposing the six-year term given Salazar's voluntary acknowledgment of his own wrongdoing. However, the court considered Salazar's remorse when it denied probation and selected the middle term of six years. The court need not state reasons for minimizing or disregarding circumstances in mitigation when determining the appropriate term. (People v. Salazar (1983) 144 Cal.App.3d 799, 813.)
Further, Salazar agues his sentence does not achieve the objectives of California Rules of Court, rule 4.410(a) that include protecting society, punishing the defendant, deterring the defendant, deterring others, preventing the defendant from committing further crimes by isolating him, securing restitution, and achieving uniformity in sentencing. He claims the six-year sentence was not necessary to protect society, deter others, secure restitution, or achieve uniformity in sentencing. However, "discretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.] [I]n the absence of a clear showing that its sentencing decision was arbitrary or irrational" a discretionary determination should not be set aside on review. (People v. Giminez (1975) 14 Cal.3d 68, 72.)
Here, in selecting the middle term of six years, the court considered several circumstances in mitigation and aggravation. The court noted on the record there was evidence Salazar planned his perpetration of the sex offense and had taken advantage of a position of trust. Because of Salazar's current crimes and his recidivism, it imposed the middle term for a lewd act upon a child under 14. This was not arbitrary or irrational.
4 II
CALCULATION OF ACTUAL AND CONDUCT CREDITS
Salazar contends, and respondent agrees, the trial court erred in its calculation of Salazar's actual and conduct credits based on the probation report which indicated that his date of confinement was March 23, 2011. The record indicates Salazar was actually confined on February 3, 2011. Therefore, Salazar should have been awarded 109 days of actual credit, plus 16 days of conduct credit pursuant to section 2933.1, for a total of 125 days of custody credit in case number CE308347. Additionally, Salazar should have been awarded 65 days of actual credit, plus 9 days of conduct credit, for a total of 74 days of custody credit in case number CE309543.
DISPOSITION
The sentence is affirmed, and the case is remanded for a recalculation of actual and conduct credit in accordance with this opinion. The superior court is directed to modify the abstract of judgment to reflect the additional credits.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
AARON, J.
Cites, in this corpus
- People v. Jordan Crim. 24655 · 1986-07-31
- People v. Roe 15157 · 1983-10-19
- People v. Salazar Crim. AO16656 · 1983-06-13
- People v. Giminez Crim. 17899 · 1975-04-21