Filed 7/15/15 P. v. Salinas CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068628
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF150094A)
                   v.

LIBRADO JUNIOR SALINAS,                                                                  OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. John W. Lua,
Judge.
         William I. Parks, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Kathleen A. McKenna, Leanne LeMon and William K. Kim, Deputy Attorneys
General, for Plaintiff and Respondent.
                                                        -ooOoo-



*        Before Kane, Acting P. J., Detjen, J. and Smith, J.
       A jury convicted appellant, Librado Junior Salinas, of transportation of
methamphetamine (count 1/Health & Saf. Code, § 11379, subd. (a)), bringing a
controlled substance into jail (count 2/Pen. Code, § 4573),1 possession for sale of
methamphetamine (count 3/Health & Saf. Code, § 11378), and resisting arrest
(count 4/§148, subd. (a)(1)). In a separate proceeding, the court found true a prior prison
term enhancement (§ 667.5, subd. (b)), two prior conviction enhancements (Health &
Saf. Code, § 11370.2, subd. (c)), and allegations that Salinas had two prior convictions
within the meaning of the three strikes law (§ 667, subds. (b)–(i)).
       On appeal, Salinas contends: 1) his sentence violates section 654; 2) the court
erred when it imposed consecutive sentences; and 3) he was denied the effective
assistance of counsel during sentencing. We affirm.
                                            FACTS
       On August 3, 2013, at approximately 4:45 a.m., Bakersfield Police Officer Jeff
Martin stopped a car driven by Salinas because some of the car’s lighting equipment was
not working properly. During a patdown search of Salinas, Officer Martin found $353.
Officer Francisco Esguerra responded to the scene and searched a backpack that was in
the car. The backpack contained mail and a receipt with Salinas’s name, 20 plastic
sandwich baggies, a digital scale, several batteries that fit the scale, a laptop computer,
and other electronics. Salinas admitted the backpack belonged to him.
       Salinas was arrested and transported to the county jail. Prior to being taken into
the jail to be booked, Officer Esguerra asked Salinas if he was in possession of any
contraband and Salinas responded that he was not. Officer Esguerra warned Salinas he
would face additional charges if found to be in possession of contraband in the jail and
Salinas again replied that he did not possess any contraband. Salinas was then escorted
into the jail to be booked.

1      All further statutory references are to the Penal Code unless otherwise indicated.


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       Salinas was uncooperative during the booking process and would not put his hands
on a counter so he could be searched. After he was booked, Salinas struggled with
deputies while being escorted away and he dropped a plastic baggie that was later
determined to contain 11.25 grams of methamphetamine.
       At Salinas’s trial, Officer Esguerra testified as an expert that the
methamphetamine was possessed for sale.
       On December 3, 2013, the court sentenced Salinas to an aggregate term of
17 years: the upper term of four years on count 1, doubled to eight years because of
Salinas’s strike convictions; one-third the midterm of one year on count 2, doubled to two
years; a one-year prior prison term enhancement; two three-year prior conviction
enhancements; a stayed term on Salinas’s conviction for possession for sale of
methamphetamine; and a concurrent term on his conviction for resisting arrest.
                                       DISCUSSION
The 654 Issue
       Salinas contends that his transportation of methamphetamine (count 1) and
bringing a controlled substance in to jail (count 2) offenses occurred during an indivisible
course of conduct. Thus, according to Salinas, the court violated section 654’s
proscription against multiple punishment when it imposed a two-year term on count 2.
We disagree.
       Section 654, subdivision (a) provides, in relevant part:

              “An act or omission that is punishable in different ways by different
       provisions of law shall be punished under the provision that provides for
       the longest potential term of imprisonment, but in no case shall the act or
       omission be punished under more than one provision.”
       Our Supreme Court has “often said that the purpose of section 654 ‘is to insure
that a defendant’s punishment will be commensurate with his culpability.’” (People v.
Latimer (1993) 5 Cal.4th 1203, 1211 (Latimer).) “Section 654 does not allow any



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multiple punishment, including either concurrent or consecutive sentences.” (People v.
Deloza (1998) 18 Cal.4th 585, 592.)
       “Case law has expanded the meaning of section 654 to apply to more than one
criminal act when there was a course of conduct that violates more than one statute but
nevertheless constitutes an indivisible transaction.” (People v. Hairston (2009) 174
Cal.App.4th 231, 240.) In determining whether a course of conduct consisting of
multiple acts is indivisible, we look to the “defendant’s intent and objective.” (People v.
Harrison (1989) 48 Cal.3d 321, 335.) “[I]f all of the offenses were merely incidental to,
or were the means of accomplishing or facilitating one objective, [the] defendant may be
found to have harbored a single intent and therefore may be punished only once.” (Ibid.)
On the other hand, “[i]f [the defendant] entertained multiple criminal objectives which
were independent of and not merely incidental to each other, he may be punished for
independent violations 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. Beamon (1973) 8 Cal.3d 625, 639.)
       “[D]ecisions … have refined and limited application of the ‘one intent and
objective’ test, in part because of concerns that the test often defeats its own purpose
because it does not necessarily ensure that a defendant’s punishment will be
commensurate with his culpability.” (People v. Kwok (1998) 63 Cal.App.4th 1236,
1253.) Thus, as our Supreme Court noted in Latimer, cases decided since the intent and
objective rule was announced in Neal v. State of California (1960) 55 Cal.2d 11 have
“limited the rule’s application in various ways,” including, in some cases, by “narrowly
interpret[ing] the length of time the defendant had a specific objective, and thereby found
similar but consecutive objectives permitting multiple punishment.” (Latimer, supra, 5
Cal.4th at pp. 1211–1212, italics omitted.) These cases include People v. Louie (2012)
203 Cal.App.4th 388 (Louie ), where the court rejected a challenge based on section 654
to the imposition of sentence on multiple offenses, stating: “[W]here a course of conduct

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is divisible in time it may give rise to multiple punishment even if the acts are directive to
one objective. [Citation.] If the separation in time afforded [the] defendants an
opportunity to reflect and to renew their intent before committing the next crime, a new
and separate crime is committed.” (Louie, supra, at p. 399, italics added.)
       “Whether [section 654] ‘applies in a given case is a question of fact for the trial
court, which is vested with broad latitude in making its determination. [Citations.] Its
findings will not be reversed on appeal if there is any substantial evidence to support
them. [Citations.] We review the trial court’s determination in the light most favorable
to the respondent and presume the existence of every fact the trial court could reasonably
deduce from the evidence.’” (People v. Vang (2010) 184 Cal.App.4th 912, 915–916.)
       Salinas transported the baggie of methamphetamine in his car prior to being
stopped and he continued transporting it when he carried it concealed on his person into
the police station. Prior to entering the station and being booked, Salinas was asked if he
possessed any contraband and admonished that if he entered the jail with contraband he
would be facing additional charges. Nevertheless, after telling Officer Esguerra twice
that he did not possess any contraband, Salinas transported the methamphetamine on his
person into the police station where he was booked.
       The court could reasonably have found from these circumstances that Salinas had
different objectives when he transported the methamphetamine, i.e., that his objective
when he transported the methamphetamine in the car was to sell it; whereas, his objective
in transporting it into the jail was to prevent the officers from discovering it. The court
could also reasonably find that Salinas had plenty of time to reflect on his continued
transportation of the methamphetamine while being transported to the police station and
while being admonished of the consequences of bringing contraband into the jail.
Moreover, Salinas’s conduct in transporting the methamphetamine into the jail was more
culpable than transporting it on the street because had he been successful in getting it past
the booking area, he could have sold it or otherwise distributed it to other inmates. Thus,

                                              5.
we conclude that the court did not violate section 654 when it imposed a consecutive
two-year term on Salinas’s conviction for bringing contraband into the jail.
The Consecutive Terms
       Salinas contends that the crimes of transportation of methamphetamine and
bringing a controlled substance into a jail and their objectives were not independent of
each other and that they occurred during a single period of aberrant behavior. Thus,
according to Salinas, the court erred when it imposed a consecutive two-year term on his
conviction in count 2 for bringing a controlled substance into a jail.
       Salinas forfeited this issue on appeal by his failure to object in the trial court to the
imposition of consecutive sentences. (People v. Scott (1994) 9 Cal.4th 331, 336.)
However, even if this issue were properly before us, we would reject it.

                “It is well established that a trial court has discretion to determine
       whether several sentences are to run concurrently or consecutively.
       [Citations.] It is also the rule that appellate courts do not have the power to
       modify a sentence or reduce the punishment therein imposed absent error in
       the proceedings. [Citation.] Moreover, such error cannot be predicated on
       a trial court’s determination that several sentences are to run consecutively
       unless an abuse of discretion is clearly shown. [Citations.]

       “[D]iscretion is abused whenever the court exceeds the bounds of reason,
       all of the circumstances being considered. [Citations.] However, in the
       absence of a clear showing that its sentencing decision was arbitrary or
       irrational, a trial court should be presumed to have acted to achieve
       legitimate sentencing objectives and, accordingly, its discretionary
       determination to impose consecutive sentences ought not be set aside on
       review.” (People v. Giminez (1975) 14 Cal.3d 68, 71–72.)
       California Rules of Court, rule 4.425 provides:

              “Criteria affecting the decision to impose consecutive rather than
       concurrent sentences include: [¶] (a) Criteria relating to crimes [¶] Facts
       relating to the crimes, including whether or not: [¶] (1) The crimes and
       their objectives were predominantly independent of each other; [¶] (2) The
       crimes involved separate acts of violence or threats of violence; or [¶]
       (3) The crimes were committed at different times or separate places, rather



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       than being committed so closely in time and place as to indicate a single
       period of aberrant behavior.

             “(b) Other criteria and limitations [¶] Any circumstances in
       aggravation or mitigation may be considered in deciding whether to impose
       consecutive rather than concurrent sentences, except: [¶] (1) A fact used to
       impose the upper term; [¶] (2) A fact used to otherwise enhance the
       defendant’s prison sentence; and [¶] (3) A fact that is an element of the
       crime may not be used to impose consecutive sentences.” (Boldface
       omitted.)
       As discussed earlier, the court reasonably could have found that Salinas had
different objectives when he transported the methamphetamine in his car and when he
transported it into the jail. Further, a substantial period of time passed between the time
he transported the methamphetamine with his car and when he took it into the jail.
Additionally, Salinas had time to contemplate whether to take the methamphetamine into
the jail and he made a deliberate decision to do so because prior to entering the jail he
was warned he would face additional charges if he was found to be in possession of
contraband in the jail. The court could reasonably conclude from these circumstances
that the crimes at issue were not committed “so closely in time and place as to indicate a
single period of aberrant behavior.” (Cal. Rules of Court, rule 4.425(a)(3).) Thus, we
conclude that the court did not abuse its discretion when it imposed a consecutive term on
Salinas’s conviction for bringing contraband into the jail.
The Ineffective Assistance of Counsel Claim
       Salinas contends his defense counsel provided ineffective representation by his
failure to object to the trial court’s imposition of a consecutive sentence on his conviction
in count 2 for bringing a controlled substance into a jail. We disagree.

       “A meritorious claim of constitutionally ineffective assistance must
       establish both: ‘(1) that counsel’s representation fell below an objective
       standard of reasonableness; and (2) that there is a reasonable probability
       that, but for counsel’s unprofessional errors, a determination more
       favorable to [the] defendant would have resulted. [Citations.] If the
       defendant makes an insufficient showing on either one of these
       components, the ineffective assistance claim fails. Moreover, “‘a court

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      need not determine whether counsel’s performance was deficient before
      examining the prejudice suffered by the defendant as a result of the alleged
      deficiencies.’ [Citation.].”’ [Citation.]” (People v. Holt (1997) 15 Cal.4th
      619, 703.)
      Since the record supports the imposition of a consecutive term on count 2, even if
defense counsel had objected, it is unlikely the court would have imposed a concurrent
term on this count. Accordingly, we reject Salinas’s ineffective assistance of counsel
claim because he has not shown he was prejudiced by defense counsel’s representation.
                                     DISPOSITION
      The judgment is affirmed.




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