SB 567: When Can Judge Not Sentence to Low Term?

As the reader of this article may already be aware, effective January 1, 2022, Senate Bill 567 became effective.  It amended Penal Code § 1170 to add subdivision (b)(6) to require that the trial court judge, in sentencing, select the low term, if among other things, defendant “has experienced psychological, physical, or childhood trauma” that was a contributing factor in the commission of the offense, “unless the court finds that the aggravating circumstances outweigh the mitigating circumstances so that imposition of the low term would be contrary to the interests of justice.”

The law is regarding as an ameliorative change in the law, so it is applicable to all nonfinal convictions on appeal (see People v. Lara (2018) 4 Cal. 5th 299, 306-308, citing In re Estrada (1965) 63 Cal. 2d 740, 745).

The appeal of Norman Thomas Salazar in the Second Appellate District, after a sentence in Ventura County Superior Court, answered this question by way of example.

Mr. Salazar and M.Q. previously had a dating relationship.  One afternoon, after their dating relationship had ended, M.Q. went to Mr. Salazar’s motel room.  He opened the door and pulled her inside.  As the Second Appellate District described the facts, “His greeting also included punching her in the forehead, causing her to bleed profusely.”

Salazar then pushed a desk in front of the door to prevent M.Q.’s escape.  He then took her car keys and disabled her cell phone.  He said it would be funny to try bear spray on her.  He then sprayed her in the face, laughed, and said, “that’s what [you] get.”  During the next several hours, he punched her five to ten times and sprayed her five to ten times.  He also kicked her and said she deserved it.

Salazar then announced he was going to kill her.  Salazar then ingested methamphetamine.  The two then left the motel room and drove around Ventura for approximately twelve hours, during which time, Salazar continued to spray M.Q. with pepper spray and told M.Q. she needed to withdraw $3,000 from the ATM outside her bank.  M.Q. said she could not withdraw that amount from the ATM and instead needed to go inside the bank.

They eventually went to the bank, where M.Q. alerted the bank teller that she needed to call the police, which she did and Salazar was arrested.  M.Q. had a fractured cheek bone and a bite mark on her face.

He was later charged with and convicted by a jury of false imprisonment by violence or menace (Penal Code §§ 236, 237(a)) and infliction of corporal injury on a person with whom he had a current or former dating relationship (Penal Code § 273.5(a)).  He admitted a prior strike (Penal Code §§ 667(c)(1), (e)(1), 1170.12(a)(1), (c)(1)) for attempted carjacking in 2001.  The trial court judge then sentenced him to seven years and four months in state prison.

It merits mention to the reader that the jury acquitted Salazar of kidnapping, but found him guilty of the lesser-included offense of false imprisonment by violence or menace.  He was also acquitted of attempted robbery (Penal  Code §§ 664, 211).  The jury also was unable to reach a verdict on the great bodily injury allegation on the domestic violence charge.

Salazar appealed the sentence to the Second Appellate District Court in Ventura, arguing that the trial court erred in not staying the sentence for count 1, and not striking his prior strike conviction under People v. Romero (1996) 13 Cal. 4th 497.

The trial court had found that Salazar committed divisible acts of false imprisonment and domestic violence and consequently, denied his request to stay sentencing on the false imprisonment charge under Penal Code § 654.

The judge imposed the middle term of three years on the domestic violence count, doubled for the prior strike, plus a consecutive term of eight months (one-third the mid-term of two years) on the false imprisonment charge, doubled to sixteen months.  The judge also imposed a criminal protective order in favor of M.Q. for ten years.

While his appeal was pending, SB 567 was enacted and became effective.  Salazar contended he must be resentenced because the trial court did not exercise “informed discretion” in selecting the middle term.  People v. Gutierrez (2014) 58 Cal. 4th 1354, 1391.

The Second Appellate District Court held that resentencing was not required.  It characterized Salazar’s conduct as a nearly 24-hour sadistic terrorization of M.Q. akin to torture.  The appellate court noted that in Salazar’s prior strike conviction, he and two others attacked a man in a parking lot and was sentenced to four years and six months in prison.

He had an additional prison commitment in 2010 for receiving stolen property and in 2012 and 2014 for evading officers with willful and wanton disregard for the safety of others.  All told, he had a thirty year history of criminal conduct.  He also had a lengthy record in prison of fighting with other inmates, multiple convictions for possessing altered razor blades, multiple convictions for possessing contraband, as well as lesser prison infractions.

While Salazar did have a history of mental illness and had previously been diagnosed with Paranoid Schizophrenia, a difficult childhood, the “devastating” death of his parents when he was 38 and 40 years old, that he was beaten and stabbed in prison, and had a chemical dependency. 

Nonetheless, there were multiple aggravating factors in this case such that, the Second Appellate District, found that the middle term in sentencing was fitting.  The appellate court found it significant that Salazar committed these offenses just seven months after being released on parole. 

We present this summary as a good case to use to contrast with any other case eligible for resentencing under 567.  It seems not too many cases would have facts so horrid as here, suggesting it would be difficult to find a middle term in any case except one that exceeded the brutality and prior record of Salazar in this case.

For more information about SB 567, please click on the following articles: