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,                                                         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.
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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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