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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

LIBRADO JUNIOR SALINAS,

Defendant and Appellant.

F068628

(Super. Ct. No. BF150094A)

OPINION

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.
2.

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.
3.

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 
4.

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, 
6.

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 
7.

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 
8.

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.