Opinion
H050762
10-10-2023
THE PEOPLE, Plaintiff and Respondent, v. SEVERIANO NEGRETE, Defendant and Appellant.
NOT TO BE PUBLISHED
(Monterey County Super. Ct. No. 20CR003269)
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
A jury found defendant Severiano Negrete guilty of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count 1), battery with serious bodily injury (§ 243, subd. (d); count 2), and dissuading a witness (§ 136.1, subd. (b)(2); count 3). Regarding count 1, the jury found true the allegation that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). The jury acquitted defendant of 15 counts of misdemeanor attempted disobedience of a court order (§§ 664, 166, subd. (a)(4); counts 4-18). The trial court sentenced defendant to an aggregate term of nine years in prison: the upper term of four years on count 1 plus a consecutive term of three years for the great bodily injury enhancement; the full middle term of two years on count 3, to be served consecutive to the sentence for count 1; and the upper term of four years for count 2, to be served concurrent with the sentence for count 1 and stayed pursuant to section 654.
All further statutory references are to the Penal Code.
After defendant was sentenced and while his appeal to this court was pending, the Legislature amended section 1170 to make the middle term the presumptive sentence unless certain circumstances exist. (Sen. Bill No. 567 (2021-2022 Reg. Sess.).) The Legislature also amended section 654, which prohibits multiple punishment for a single act or omission. (Assem. Bill No. 518 (2021-2022 Reg. Sess.).) At the time of sentencing, section 654 required the trial court to impose and execute punishment "under the provision that provide[d] for the longest potential term of imprisonment." (Former § 654, subd. (a).) The Legislature amended section 654 to give trial courts discretion to select the provision on which to impose and execute punishment. (§ 654, subd. (a).) As a result, this court remanded this matter to the trial court for resentencing under amended sections 1170 and 654. (People v. Negrete (June 17, 2022, H049396) [nonpub. opn.].)
On our own motion, we take judicial notice of our opinion in defendant's prior appeal. (Evid. Code, § 452, subd. (d)(1).)
Upon remand, the trial court sentenced defendant to an aggregate term of eight years: the middle term of three years on count 1 plus a consecutive term of three years for the great bodily injury enhancement; the full middle term of two years on count 3, to be served consecutive to the sentence for count 1 (see § 1170.15); and the middle term of three years for count 2, stayed pursuant to section 654. The court also imposed various fines and fees.
On appeal following resentencing, defendant's appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) that states the case and facts but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. That period has elapsed, and we have received no response from defendant.
Pursuant to Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106 (Kelly), we have carefully reviewed the entire record and determined that there are no arguable issues on appeal. Following the California Supreme Court's direction in Kelly, we provide a brief description of the facts and the procedural history of the case, the crimes of which defendant was convicted, and the punishment imposed. (Kelly, supra, at p. 110.)
The factual and procedural background is taken from this court's prior opinion.
A. Factual Background
On the night of April 1, 2020, an argument ensued between 23-year-old defendant and his 64-year-old father. Defendant lived with the father in a studio apartment in Prunedale. Defendant was drunk and the father had consumed a couple of beers.
The father pushed defendant in the chest a few times and "[p]robably" punched defendant in the face. Defendant then hit the father in the face, stomach, and possibly one of his ribs, where he had previously been injured. The father was five feet seven inches tall and weighed about 200 pounds. Defendant was six feet one inch tall and weighed 234 pounds. The father stated that defendant was defending himself when the fight started but that the father was on the defense once "they really got into [it]." At one point while the father was trying to defend himself, he hit defendant on the back of the head with a soup bowl, which broke. The fight ended when the father told defendant to stop and defendant walked away.
A Monterey County Sheriff's Deputy responded to the apartment. The father had visible injuries to his face, a wound on his forearm, and blood on his chest, arms, and the back of his head. When the deputy asked the father how he was injured, the father stated that defendant had punched him. The father did not state that he had started the fight by punching defendant or that he had broken a bowl over defendant's head. There were no injuries to the father's hands. The father requested a restraining order against defendant.
The deputy observed blood on defendant's hands and left cheek but defendant did not appear to be injured. The deputy asked defendant about the blood, but defendant only stated that his vehicle had been stolen.
The father was taken to the hospital and diagnosed with a right orbit fracture, a nasal fracture, hemorrhages in both eyes and significant swelling to the soft tissue around his eyes, a contusion to his left elbow, and a laceration on his left ear. The orbit fracture was likely from "a significant amount of force," but may have been a preexisting injury. The father also had a fractured rib, but it could not be determined if the fracture was "old or new." The father described his pain as "a ten out of ten."
The Sheriff's deputy served defendant with an emergency protective order directing him to have no contact with the father and to stay at least 100 yards away from him. The order was in effect until May 1, 2020.
Defendant made several recorded jail calls to his girlfriend and asked her to contact the father to request that he drop the charges and to apologize to the father on his behalf. The father did not recall the girlfriend calling him to ask that the charges be dropped, although she did tell him that defendant was sorry for what he had done.
Defendant testified that during an argument with the father, the father punched him in the face and pushed him. Defendant then punched the father on the face. The men began punching each other back and forth. The fight lasted about a minute and ended when defendant put his father in a bear hug until he calmed down. Defendant went to bed. Defendant stated that he struck the father because the father struck him.
B. Procedural Background
Defendant was charged by second amended information with assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); count 1), battery with serious bodily injury (§ 243, subd. (d); count 2), dissuading a witness from prosecuting a crime (§ 136.1, subd. (b)(2); count 3), and 15 counts of misdemeanor attempted disobedience of a court order (§§ 664, 166, subd. (a)(4); counts 4-18). It was alleged regarding count 1 that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)).
A jury found defendant guilty of counts 1 through 3, finding true the great bodily injury allegation regarding count 1, and acquitted defendant of the remaining counts. The trial court selected count 1 as the principal term and sentenced defendant to an aggregate term of nine years in prison as follows: the upper term of four years on count 1 plus three years for the great bodily injury enhancement; a stayed concurrent upper term of four years on count 2; and a full middle term of two years on count 3, consecutive to the sentence for count 1.
Following defendant's trial and while his appeal was pending before this court, the Legislature amended section 1170, subdivision (b), to read as follows in relevant part: "(1) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2). [¶] (2) The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial....[¶] (3) Notwithstanding paragraphs (1) and (2), the court may consider the defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury...." (§ 1170, subd. (b), as amended by Stats. 2021, ch. 731, § 1.3.) The Legislature also amended section 654 to read as follows in relevant part: "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a), as amended by Stats. 2021, ch. 441, § 1.) "Previously, under section 654, 'the sentencing court was required to impose the sentence that "provides for the longest potential term of imprisonment" and stay execution of the other term. [Citation.] . . . [S]ection 654 now provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence.' [Citation.]" (People v. Jones (2022) 79 Cal.App.5th 37, 45.)
This court accepted the parties' agreement that both sections applied retroactively, and we remanded the matter to the trial court for resentencing under amended sections 1170 and 654.
On remand for resentencing, the prosecutor argued that defendant should be resentenced to the same sentence, arguing that although amended sections 1170 and 654 allowed the trial court discretion to impose a lesser sentence, the aggravating factors in defendant's case justified imposition of the original sentence. Defendant asserted that under amended section 1170, the trial court could not impose a sentence exceeding the middle term, because circumstances in aggravation were not found true beyond a reasonable doubt at trial by the jury or by the judge. Defendant also argued that because he was under 26 years old at the time of commission of the offenses, the trial court should impose the lower term for each count under amended section 1170, subdivision (b)(6)(B). Defendant also asked the trial court to dismiss the great bodily injury enhancement under section 1385, subdivision (c)(2)(E), or to strike the punishment imposed by the enhancement under section 1385, subdivision (b)(1).
This provision states: "Notwithstanding paragraph (1), and unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests ofjustice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: [¶] . . . [¶] The person is a youth or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense." (§ 1170, subd. (b)(6)(B).)
Section 1385, subdivision (c)(2)(E), provides that the trial court shall dismiss an enhancement if it is in the furtherance of justice to do so, unless a statute prohibits doing so, and that proof that "[t]he current offense is connected to prior victimization or childhood trauma" "weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety." Section 1385, subdivision (b)(1), provides that if the court has the authority to strike or dismiss an enhancement under subdivision (a) in furtherance of justice, "the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a)."
At resentencing, the trial court admitted several exhibits from the prosecutor that demonstrated defendant's past convictions. The court then resentenced defendant to an aggregate term of eight years: the middle term of three years on count 1 plus a consecutive term of three years for the great bodily injury enhancement; the full middle term of two years on count 3, to be served consecutive to the sentence for count 1; and the middle term of three years for count 2, stayed pursuant to section 654. The court also imposed various fines and fees. The court stated that the records of defendant's previous convictions demonstrate "the presence of an extensive criminal record that has increased in seriousness over the years, which is not positive when considering his background and prospects." The trial court concluded that under amended section 1170, imposition of the middle term was proper for each count, despite defendant's age at the time of the charged offenses. The court also concluded that dismissing the enhancement or striking the punishment for the enhancement was not in the interest of justice, citing the seriousness of defendant's actions and stating: "The fact that [defendant] continues to resort to engaging in assaultive actions when angry or upset and has done nothing to address his anger issues despite the availability of therapeutic services such as counselling while on prior grants of supervision make him unstable and unpredictable." The trial court also found that staying the sentence for count 2 was appropriate under amended section 654.
III. DISCUSSION
Pursuant to Wende, supra, 25 Cal.3d 436, and Kelly, supra, 40 Cal.4th 106, we have carefully reviewed the entire record. We conclude that there is no arguable issue on appeal. (Wende, supra, at pp. 441-443.)
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: DANNER, J. WILSON, J.