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P. v. Salinas 5/30/07 CA4/3
State: California
Court: 1st District Court of Appeal 1st District Court of Appeal
Docket No: G036194
Case Date: 08/15/2007
Preview:Filed 5/30/07 P. v. Salinas CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELLATE DISTRICT DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. DANIEL BOY SALINAS III, Defendant and Appellant. G036194 (Super. Ct. No. 04NF2793) OPINION

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 seconddegree 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. 2

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 . . . . [
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