P. v. Salazar
Filed 5/13/13 P. v. Salazar CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
EDGAR M. SALAZAR,
Defendant and Appellant.
D061483
(Super. Ct.
Nos. SCE308347/
SCE309543)
APPEAL from
a judgment of the Superior Court
of
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,
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
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 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
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.)
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.
II
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.
name="_ftn1" title="">[1] Statutory references are to the Penal Code unless otherwise
specified.
