Filed 7/22/24 P. v. Salmeron CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

JAVIER SANCHEZSALMERON,

 Defendant and Appellant.

2d Crim. No. B329379

(Super. Ct. No. KA125847)

(Los Angeles County)

Javier Sanchez-Salmeron appeals his sentence after a jury 

found him guilty on three counts of lewd act upon a child under

the age of 14. (Pen. Code, § 288, subd. (a)).

1 The trial court found 

true aggravating factors that the victim was particularly 

vulnerable, and that appellant took advantage of a position of 

trust and confidence to commit the offenses. (Cal. Rules of Court, 

rule 4.421(a)(3), (11).) It sentenced him to an aggregate term of 

12 years in prison: the high term of eight years on the first count 

1 Unlabeled statutory cites are to the Penal Code.
2

and consecutive terms of two years (one-third the middle term of 

six years) on the other two counts. 

Appellant contends the trial court abused its discretion 

when: (1) it found the aggravating factors true and sentenced

him to the high term on count 1, and (2) it denied his request to

continue sentencing. We will affirm.

FACTS AND PROCEDURAL HISTORY

Appellant is victim D.P.’s godfather. D.P. considered him a 

“father-like” figure when she was a child. She would often visit 

his house and stay overnight. He molested her several times 

between the ages of 9 and 12. D.P. disclosed the abuse to her 

mother at age 13 after she began feeling suicidal and performing 

poorly in school. Appellant told police he did not remember 

touching her but acknowledged he might have “unintentionally” 

done so while drunk.

Prosecutors charged appellant with four counts of 

molestation: three involving D.P. and one involving her sister,

P.P. The jury found him guilty on the three counts involving D.P. 

but not guilty on the count involving P.P. Appellant waived his 

right to a jury trial on the aggravating factors. The trial court 

found them true.

A recently assigned public defender appeared for appellant 

at sentencing. She moved for a new trial on the aggravating 

factors and requested a continuance to “request and review the 

trial transcripts” so she could “make any appropriate arguments 

for sentencing.” The trial court denied the motion and sentenced

appellant. It stated: “I’ll note the defendant previously waived 

jury on aggravating circumstances and the court, based on the 

evidence introduced in trial and with argument from attorneys on 

each side, made findings in that regard. So that will be denied.” 
3

DISCUSSION

Aggravating Factors

The trial court relied on two aggravating factors in 

selecting the upper term on the first count of lewd act upon a 

child under the age of 14: that the victim was particularly 

vulnerable, and that appellant took advantage of a position of 

trust and confidence to commit the offenses. (Cal. Rules of Court, 

rule 4.421(a)(3), (11).) Appellant contends the trial court erred 

when it found these two factors true. We review the sentencing 

decision for abuse of discretion. (§ 1170, subd. (b); People v. 

Sandoval (2007) 41 Cal.4th 825, 847, superseded by statute as 

stated in People v. Lewis (2023) 88 Cal.App.5th 1125, 1132.) 

Appellant argues the trial court based its “particularly 

vulnerable” finding on the victim’s age, even though age was 

already an element of the offense. (See § 1170, subd. (b)(5) [“The 

court may not impose an upper term by using the fact of any 

enhancement upon which sentence is imposed under any 

provision of law”]; Cal. Rules of Court, rule 4.420(h) [“A fact that 

is an element of the crime on which punishment is being imposed 

may not be used to impose a particular term”].) Defense counsel 

raised this issue at sentencing. “[R]egarding the allegation of 

particular vulnerability,” counsel argued, “the problem . . . is that 

the charge itself, an element of the offense, is that the victim be 

under 14. So I don’t think there’s anything about her as a minor 

victim that makes her particularly vulnerable. She wasn’t a 

dependent, as far as mentally ill or disabled, whereas a child –

she didn’t have any of the same abilities that any other child 

would have. I would argue that the dual use of that element of 

age alone should not be used as a factor in aggravation.”

The trial court acknowledged defense counsel’s concern but 

found that facts other than D.P.’s age proved her vulnerability. It 

stated, “I think you make a very good legal point that a finding of 
4

true, based on her age or primarily on her age, may raise some 

issues of overlap with [the] underlying element. So I want to 

specifically make a record to show that her vulnerability was far 

beyond just the age. Her vulnerability extended towards, even in 

the number of kids that were in and out of her house, she was the 

one child that was taken there overnight. And the overnight 

visits uniquely for her, even above [P.P.] and the other in the 

family, provided extra vulnerability.” The court also cited 

testimony that appellant would molest D.P. while his wife was 

receiving dialysis, leaving the two alone for several hours early in 

the morning. These facts may relate to the offense but are not an 

element of the offense. The trial court properly relied on them.

Appellant describes the “position of trust or confidence”

factor as “overbroad” because most molestation cases involve an 

adult who has an existing relationship with the child. (See, e.g., 

People v. Sedano (2023) 88 Cal.App.5th 474, 482, quoting People 

v. McAlpin (1991) 53 Cal.3d 1289, 1303, italics omitted [court did 

not err in admitting expert testimony “‘that in most cases the 

child molester is not in fact a stranger to his victim’”].) We reject 

the premise that an aggravating factor listed in the Rules of 

Court should be disregarded because it might apply too 

frequently in certain situations. Appellant’s concern is the 

province of the Legislature and Judicial Council. We also 

disagree with the implication that a “position of trust or 

confidence” is present whenever a family or family-like 

relationship exists at the time of the offense. This case 

illustrates the point. The trial court did not find that appellant’s 

status as D.P.’s godfather or family friend automatically placed 

him into this category. Rather, it cited evidence that appellant 

“acted as her godfather” or as “a second father,” then used this 

relationship to gain “control over her life” by, among other things, 

inviting D.P. to stay overnight with him so he could molest her. 
5

The trial court exercised its discretion properly when it found this 

factor true.

Request to Continue Sentencing

Appellant argues the trial court erred when it denied 

defense counsel’s request to continue sentencing. We review the 

ruling for abuse of discretion. (People v. Sakarias (2000) 22 

Cal.4th 596, 646.) “Where, as here, a discretionary power is 

statutorily vested in the trial court, its exercise of that discretion 

‘must not be disturbed on appeal except on a showing that the 

court exercised its discretion in an arbitrary, capricious or 

patently absurd manner that resulted in a manifest miscarriage 

of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 

8 Cal.4th 1060, 1124-1125.)

Appellant requested a continuance on the same day as 

sentencing. The request did not comply with the requirement 

that “a written notice shall be filed and served on all parties to 

the proceeding at least two court days before the hearing sought 

to be continued, together with affidavits or declarations detailing 

specific facts showing that a continuance is necessary.” (§ 1050, 

subd. (b).) We affirm the court’s decision for this reason alone.

We would affirm, however, even if appellant had timely 

served his request. A continuance “shall be granted only upon a 

showing of good cause.” (§ 1050, subd. (e).) “Good cause” 

requires a showing that counsel has prepared with due diligence. 

(People v. Doolin (2009) 45 Cal.4th 390, 450.) Not every denial of 

a request for more time denies due process of law, even if the 

party seeking the continuance thereby fails to offer evidence. 

(People v. Beames (2007) 40 Cal.4th 907, 921.) Appellant waived 

his right to a jury on the aggravating factors and agreed to 

proceed on the existing evidentiary record. The same attorney

who represented him during the guilt phase of trial represented 

him during the aggravating factors phase, in front of the same 
6

judge. At sentencing, appellant’s newly assigned defense counsel 

requested a continuance after the trial court denied her motion 

for a new trial, and for the purpose of “mak[ing] a brief record” 

before proceeding with sentencing. The sole ground was that she 

had not yet read the transcripts relevant to the court’s previous 

findings on the aggravating factors. No abuse of discretion or due 

process violation occurred.

Appellant contends a continuance would have enabled 

defense counsel “to discover and present arguments to the court 

that made it more amenable to following amended Penal Code 

section 1170’s presumptive mitigation factors.” He does not 

articulate what arguments counsel would have made other than 

mentioning appellant successfully completed probation for two 

unrelated misdemeanors. Even if the court erred, we conclude 

appellant suffered no prejudice. (See People v. Doolin, supra, 45 

Cal.4th at p. 451 [trial court did not abuse its discretion by 

denying continuance request that was “both untimely and 

unlikely to affect the outcome of the proceedings”].)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

CODY, J.

We concur:

GILBERT, P. J. BALTODANO, J.
David C. Brougham, Judge

Superior Court County of Los Angeles

______________________________

Christine M. Aros, 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, Senior 

Assistant Attorney General, Scott A. Taryle, Supervising Deputy 

Attorney General, and Daniel C. Chang, Deputy Attorney 

General, for Plaintiff and Respondent.