P. v. Salinas

Filed 5/30/07 P. v. Salinas CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
DANIEL BOY SALINAS III,
Defendant and Appellant.
G036194
(Super. Ct. No. 04NF2793)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Carla M.
Singer, Judge. Affirmed.
Martha L. McGill, under appointment by the Court of Appeal, for
Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, David Delgado-Rucci
and Pat Zaharopoulos, Deputy Attorneys General, for Plaintiff and Respondent.
* * *

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Defendant Daniel Boy Salinas III was convicted of five counts of second-
degree robbery; the jury also found true he personally used a knife as to one count and
personally used a firearm as to four counts. He was sentenced to 27 years and 4 months
based on the court’s decision to impose consecutive sentences pursuant to Penal Code
section 669. Specifically, on count 2, the principal count, he received a middle term of 3
years plus a 10-year consecutive term on the firearm enhancement. On count 1 the
sentence was one year, equal to one-third the midterm, and an additional consecutive four
months for the firearm enhancement. For each of counts 3, 4, and 5, he received
consecutive one-year sentences, equal to one-third the midterm, plus 40 months, to be
served consecutively, for the firearm use.
Defendant appeals, claiming the court improperly usurped the jury’s
function when it incorrectly told the jury that two witnesses had identified him as the
robber and under Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 166
L.Ed.2d 856] (Cunningham) the consecutive sentences were invalid. Because both
claims lack merit we affirm the judgment.
FACTS
During a six-week period two gas stations and one doughnut shop in La
Habra were robbed for a total of five times. There were five different victims; the two
whose identification testimony is at issue are Maria Sanchez and Cecilio Lopez.
The modus operandi of the robber was the same or very similar in each
robbery. In four he used a gun; three times he pulled up his shirt to show it to the victims
and one time he pointed it. Two of the victims testified that the gun police found
wrapped in a bandanna in defendant’s closet looked like the one used in the robbery. In
one instance a knife was used. The victim in that crime testified that the knife police
found on top of defendant’s bed looked like the one used.

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In the four gas station robberies, defendant entered the store and asked for
Kool cigarettes. After the victims reached for the cigarettes, defendant showed the gun.
Defendant smokes Kools and they were found in his bedroom by police.
Four of the five victims testified the robber wore a blue baseball cap; three
stated it had an “LA” logo on it. Police found a Los Angeles Dodgers baseball cap in the
laundry room of the house defendant lived in with his father. At trial, his father identified
it as defendant’s, and the cap had defendant’s name in it.
Three of the robberies were captured on video surveillance; the tapes were
shown to the jury. Each victim testified the man in the video was the robber. At least
one video showed a Ford Crown Victoria in the parking lot. Police later discovered
defendant’s father owned such a car that he allowed defendant to drive.
The victims were shown six-pack photo lineups. The witness from the
doughnut shop knew defendant as a regular customer and positively identified him.
Lopez and one other witness picked defendant, although they were not absolutely
positive. The officer who presented the lineup to a fourth witness testified he said
defendant’s photo stood out although he was not sure. Sanchez could not pick anyone
from the six-pack.
At trial two witnesses positively identified defendant as the robber. A third
was not sure. The identification testimony of the other two witnesses, Sanchez and
Lopez, is the issue of this appeal.
When Sanchez was asked if anyone in the courtroom looked like the
robber, she first pointed to a juror and said, “Looks like him.” She did so because “he
was more or less like him, a little bit heavy.” But she selected him “[o]nly because of his
body, but not his face.” And she had not yet seen defendant.
After the court asked her to “look around the entire courtroom before you
answer,” Sanchez testified, “Looks like him over there, the one who is seated,” wearing

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“[t]he shirt that has stripes.” The court stated: “Record will reflect the witness has
identified the defendant.”
Sanchez was apparently visibly upset, causing the court to ask if she needed
a break, water, or a tissue. When questioned why she was upset, she replied she was
afraid and stated, “I get very much nervous as I look at him.”
When Lopez was asked if he saw the robber in the courtroom, he testified,
“Looks like that person. (Indicating.)” When asked to be more specific he said, “It’s that
person who is on that side, white shirt” who “does not wear a tie.” The court stated, “The
witness has identified the defendant.”
In imposing consecutive sentences, the court noted that the crimes
“occurred on different dates, at different times with different victims . . . . [¶] The rules
of court tell us that when there are crimes and objectives . . . predominantly independent
of each other, and when the crimes involve separate acts of violence or threats of
violence, and when the crimes are committed at different times or separate places, . . .
consecutive sentencing is appropriate . . . .”
DISCUSSION
1. Court’s Use of “Identified”
The defense was that defendant did not commit the robberies and this
turned on the identity of the robber. Defendant contends the court erred in its statement
during the testimony of two victims that they had “identified” defendant. We disagree.
There is no evidence the court meant anything other than to specify for the
record that the witnesses had pointed out defendant as the person they were describing.
Nothing in the record suggests counsel for the parties understood the court’s use of the
word to indicate anything more than that. In fact, when another witness was asked
whether she saw the robber in the courtroom and described defendant, pointing to him,

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the district attorney stated, “May the record reflect that the witness has identified the
defendant[.]” There was no objection and this use of the word “identified” has not been
raised in the appeal.
Furthermore, when the witness from the doughnut shop pointed to
defendant as the person who robbed her store, the court stated, “Record will reflect she
has identified the defendant . . . .” Again, there was no objection to this statement nor
was it raised in the appeal. This is further confirmation both that the word was not used
in any but the most benign sense and that the jurors would not construe it otherwise.
Defendant apparently is concerned about the court’s use of “identified”
only as to the testimony of Sanchez and Lopez, because their statements pointing out
defendant as the robber were not absolute, that is, they both said something to the effect
that defendant “looked like” the robber. This does not change our analysis. In context,
nothing in the court’s statement that the witnesses had identified defendant indicated to
the jury that it was making a factual determination that defendant was the robber. The
equivocal testimony went to the weight of the evidence, something exclusively within the
jury’s province that we do not consider on appeal. (People v. Ochoa (1993) 6 Cal.4th
1199, 1206.)
Nor is there any evidence the jury interpreted the court’s statement to mean
that defendant was the person who had committed the robberies. The jury was still
charged with making that determination. In addition to the challenged testimony and
court statements, the jury had positive identification by two other witnesses, the six-pack
identifications, and the videos showing defendant committing the robberies. It also had
the cigarettes, the baseball cap, the knife, the gun, and the car as evidence, tying
defendant to each offense.
Moreover, the jury was instructed with CALJIC No. 17.30: “I have not
intended by anything I have said or done . . . to intimate or suggest what you should find
to be the facts, or that I believe or disbelieve any witness. If anything I have done or said

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has seemed to so indicate, you will disregard it and form your own conclusion.” The jury
is presumed to have followed the instructions. (People v. Smithey (1999) 20 Cal.4th 936,
961.)
In giving that instruction the court did not need to refer specifically to its
prior statements about identification of defendant. Defendant’s citation to Powell v.
Galaza (9th Cir. 2003) 328 F.3d 558, 564 is not persuasive because there the court did
improperly comment on the evidence, not the case here. Defendant has not provided
authority for a requirement that the court’s clarification of the witnesses’ testimony for
the record required it to specify those statements when giving CALJIC No. 17.30. And
because the court did not make a finding defendant was the robber, it was not required to
instruct the jurors at that point in the trial that they were free to make their own
determination of identity.
Contrary to defendant’s claim, this was not a judicial comment on the
evidence nor a usurpation of the jury’s fact-finding power. The cases on which defendant
relies are distinguishable. In People v. Sturm (2006) 37 Cal.4th 1218, in a second penalty
phase trial after the defendant had been convicted of first degree murder, the court told
the jury that premeditation was a “‘gimme’” and the question of premeditation was “‘all
over and done with.’” (Id. at p. 1232.) The Supreme Court held this was error because
the statements were inaccurate and “effectively removed the issue of premeditation, or
lack thereof, from the jury’s consideration . . . .” (Ibid.) This is not at all comparable to
the statements at issue here.
Likewise, in People v. Moore (1974) 40 Cal.App.3d 56, 67, the court
reversed because the trial judge inaccurately summed up evidence on a certain issue and
then opined the evidence proved the defendant was guilty. That is not the case here.
We also reject defendant’s assertion the court’s statements were the
equivalent of a directed verdict on the two counts at issue. Those counts went to the jury
for its decision.

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Because we hold there was no error, we need not address defendant’s
claims the error was not harmless, that an objection was not required to preserve the issue
for appeal, or of ineffective assistance of counsel.
2. Consecutive Sentences
Relying on Cunningham, defendant argues the court could not impose
consecutive sentences because the factors upon which it relied where not found by a jury
beyond a reasonable doubt. We disagree.
In Cunningham, the court held that by “assign[ing] to the trial judge, not to
the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’
sentence,” California’s determinate sentencing law “violates a defendant’s right to trial
by jury . . . .” (Cunningham, supra, 549 U.S. __ [127 S.Ct. at p. 860].) It did not address
the issue of consecutive sentences.
Penal Code section 669 provides that if a defendant is convicted of two or
more offenses the trial court “shall direct whether the terms of imprisonment . . . shall run
concurrently or consecutively.” Contrary to sentences imposed under the determinate
sentencing law where “there is a statutory presumption in favor of the middle term,” there
is no such presumption in favor of concurrent as opposed to consecutive sentences.
(People v. Reeder (1984) 152 Cal.App.3d 900, 923.) Thus, a consecutive sentence is
within the statutory maximum and is not an increased sentence. That a court must make
a finding to impose a consecutive sentence (Cal. Rules of Court, rule 4.425) does not
change that conclusion. The consecutive sentences did not violate Cunningham.

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DISPOSITION
The judgment is affirmed.
RYLAARSDAM, J.
WE CONCUR:
SILLS, P. J.
FYBEL, J.

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