California Court of Appeal May 13, 2013 No. D061483Unpublished
Filed 5/13/13 P. v. Salazar CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
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.)
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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.
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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.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not abuse its discretion in imposing the middle term sentence, but remanded the case for the recalculation of presentence custody credits due to an error in the confinement date.
Issues
Did the trial court abuse its discretion in sentencing the defendant to the middle term of six years?
Did the trial court err in its calculation of actual and conduct credits?
Disposition. Affirmed and remanded
Quotations verified verbatim against the opinion
“The sentence is affirmed, and the case is remanded for a recalculation of actual and conduct credit in accordance with this opinion.”