People v. Salazar

80 Cal.App.5th 453

296 Cal.Rptr.3d 94

The PEOPLE, Plaintiff and Respondent,

v.Norman Thomas SALAZAR, Defendant and Appellant.

2d Crim. No. B309803

Court of Appeal, Second District, Division 6, California.

Filed June 28, 2022

Bases & Bases, Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Snr. Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, David F. Glassman, Deputy Attorney General, for Plaintiff and Respondent.

YEGAN, Acting P. J.

The Goddess of justice is not wearing a black arm-band today weeping for the California Constitution. (See Brosnahan v. Brown (1982) 32 Cal.3d 236, 299, 186 Cal.Rptr. 30, 651 P.2d 274 (dis. opn. of Mosk, J.).) Instead, she is, perhaps, applauding our application of it where there has been no miscarriage of justice in the Superior Court. It is our Constitutional obligation to affirm a judgment, where a more favorable outcome will not result upon reversal.

Norman Thomas Salazar appeals from the judgment after the jury found him guilty of false imprisonment by violence or menace (count 1, Pen. Code, §§ 236, 237, subd. (a) )¹ and infliction of corporal injury on a person with whom he had a current or former dating relationship (count 3, § 273.5, subd. (a)). He admitted a prior strike (§§ 667, subds. (c)(1), (e)(1), 1170.12, subds. (a)(1), (c)(1)). The trial court sentenced him to state prison for seven years, four months.

Appellant contends the trial court erred when it did not: (1) stay the sentence for count 1, and (2) strike his prior strike conviction. He also contends that Senate Bill No. 567, which added a procedural change to section 1170, mandates resentencing. We affirm.

Factual History

Appellant and M.Q. previously had a dating relationship. One afternoon, after their dating relationship had ended, she went to his motel room. He opened the door and pulled her inside. His greeting also included punching her in the forehead, causing her to bleed profusely.

Appellant pushed a desk in front of the door to prevent her escape, took M.Q.’s car keys, and disabled her cell-phone. He said it would be funny to try bear spray (pepper spray) on her. He sprayed her in the face, laughed, and said "that's what [you] get." During the next several hours, he punched her five to ten times and sprayed her five to ten times. He kicked her inner thigh, knocking her to the ground. This resulted in a large bruise. He laughed and said she deserved it.

Appellant announced that he was going to kill M.Q. Although she could see his motorcycle in the parking lot, he claimed she stole it and sold it to someone, who replaced it with a different bike. He said the substituted bike didn't work, and she "owe[d] him a bike."

Appellant ingested methamphetamine in the room. At about 8:00 p.m., he spoke to a woman on the telephone and was angry to learn that a drug deal was cancelled. He then insisted that M.Q. accompany him in her car to purchase drugs.

For two hours, appellant and M.Q. sat in her car in the motel parking lot. He continued to punch and spray her resulting in her clothes becoming wet. Appellant refused her request to open the windows because he "wanted [her] to feel not being able to breathe."

From about 11:00 p.m. until about 9:00 the next morning, appellant drove M.Q.’s car while she sat in the passenger seat. He continued to punch and spray her with pepper spray and glass cleaner. He told M.Q. she needed to withdraw $3,000 from the bank to pay for a new bike. She replied that she could not withdraw $3000 from the ATM and needed to go inside the bank. She knew she had no money in her account. At about 9:00 a.m., they returned to the motel room and waited for the bank to open. While waiting, he continued punching her face.

At about 10:00 a.m., appellant drove M.Q.’s car to a park. He made her follow him in his truck. He became angry that she did not park his truck correctly and bit her face, drawing blood.

Appellant retrieved his bike from the motel and rode to the bank with M.Q. sitting behind him. When they went inside the bank, she lifted her sunglasses to show the teller her black eye and asked her to call the police. Police responded and arrested appellant.

M.Q.’s cheek bone was fractured. She had a closed head injury, swelling around her scalp and eye, and a bite mark on her face.

The Verdict and Sentencing

The jury acquitted appellant of kidnapping (count 1), but found him guilty of the lesser included offense of false imprisonment by violence or menace. ( §§ 236, 237, subd. (a).) He was also acquitted of attempted robbery (count 2). ( §§ 664, 211 ). The jury found appellant guilty of count 3, inflicting corporal injury (count 3). ( § 273.5, subd. (a).) The trial court dismissed the great bodily injury allegation as to count 3 after the jury was unable to reach a verdict on this allegation.

Appellant admitted he had suffered a prior strike conviction for attempted carjacking ( §§ 664, 215 ).

The trial court denied appellant's request to dismiss the prior strike conviction and place him on probation. ( People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 ( Romero ).) The court found that appellant committed divisible acts of false imprisonment and domestic violence and, consequently, denied his request to stay sentencing on count 1 pursuant to section 654. The court also denied the defense request to impose concurrent sentences on counts 1 and 3. The court imposed the middle term of three years on count 3, doubled for the prior strike, plus a consecutive eight months on count 1 (one-third the middle term), doubled to 16 months, for a total prison sentence of seven years and four months. The court also issued a criminal protective order against appellant for ten years.

Multiple Punishment

Appellant contends his consecutive sentence for false imprisonment is barred by section 654 and must be stayed. This contention lacks merit.

"An act or omission that is punishable in different ways by different provisions of law" shall not "be punished under more than one provision." ( § 654, subd. (a).) A "course of conduct encompassing several acts" may result in multiple punishment if it reflects "multiple intents and objectives." ( People v. Corpening (2016) 2 Cal.5th 307, 311, 211 Cal.Rptr.3d 863, 386 P.3d 379 ( Corpening ).) "If ... defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ " ( People v. Harrison (1989) 48 Cal.3d 321, 335, 256 Cal.Rptr. 401, 768 P.2d 1078.)

When the facts are undisputed, the application of section 654 is a question of law we review de novo. ( Corpening , supra , 2 Cal.5th at p. 312, 211 Cal.Rptr.3d 863, 386 P.3d 379.) The trial court has "broad latitude" to determine whether section 654 is factually applicable to a series of offenses. ( People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1113, 175 Cal.Rptr.3d 270.) "A trial court's express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence." ( People v. Brents (2012) 53 Cal.4th 599, 618, 136 Cal.Rptr.3d 66, 267 P.3d 1135.)

Substantial evidence supports the trial court's finding of multiple objectives. Appellant inflicted corporal injury to inflict pain on a former girlfriend. His laughter supported the conclusion he beat her for the purpose of amusement. He falsely imprisoned her in order to obtain money at her bank.

The trial court concluded that the offenses did not come within section 654 because it was not "an ongoing singular continuous course of conduct" but was divisible in time with breaks in the conduct. Several hours passed between appellant's initial assault of M.Q. in the motel room and her false imprisonment to accompany appellant in his quest to purchase drugs and withdraw money from her account. Multiple punishment was thus permitted because the acts "were separated by periods of time during which reflection was possible." ( People v. Surdi (1995) 35 Cal.App.4th 685, 689, 41 Cal.Rptr.2d 314 [punishment for kidnapping and mayhem not barred by § 654 ]; People v. Louie (2012) 203 Cal.App.4th 388, 399, 136 Cal.Rptr.3d 646 [15-minute gap between threats and arson].) Section 654 did not bar punishment for both crimes.²

Romero Motion

Appellant contends the trial court abused its discretion in declining to strike his prior strike conviction in the interests of justice pursuant to Romero , supra , 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628. We disagree.

A trial court has discretion to dismiss a prior violent or serious felony conviction pursuant to the Three Strikes law. ( Romero , supra , 13 Cal.4th at p. 504, 53 Cal.Rptr.2d 789, 917 P.2d 628.) In deciding whether to grant a Romero motion, the trial court must " ‘consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ " ( People v. Carmony (2004) 33 Cal.4th 367, 377, 14 Cal.Rptr.3d 880, 92 P.3d 369 ( Carmony ), quoting People v. Williams (1998) 17 Cal.4th 148, 161, 69 Cal.Rptr.2d 917, 948 P.2d 429.)

Trial court rulings on Romero motions are reviewed under the deferential abuse of discretion standard. ( Carmony , supra , 33 Cal.4th at p. 374, 14 Cal.Rptr.3d 880, 92 P.3d 369.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no...