Filed 6/17/22 P. v. Negrete CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H049396
(Monterey County
Plaintiff and Respondent, Super. Ct. No. 20CR003269)
v.
SEVERIANO NEGRETE,
Defendant and Appellant.
I. INTRODUCTION
Defendant Severiano Negrete appeals after a jury found him guilty of assault by
means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count 1),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 nine years
in prison, which included the upper term of four years on count 1 plus three years for the
great bodily injury enhancement.
1
All further statutory references are to the Penal Code.
After defendant was sentenced and while this appeal 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.) [effective Jan. 1, 2022].)
The Legislature also amended section 654, which prohibits multiple punishment for a
single act or omission. (Assem. Bill No. 518 (2021-2022 Reg. Sess.) [effective Jan. 1,
2022].) At the time of sentencing, section 654 required the trial court to impose
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 punishment.
Defendant contends that newly amended sections 1170 and 654 apply retroactively
to him and require remand for resentencing. The Attorney General concedes that a
remand for resentencing under the newly amended provisions is necessary.
For reasons that we will explain, we concur with the parties that newly amended
sections 1170 and 654 apply retroactively to defendant and that remand for resentencing
is warranted.
II. FACTUAL AND PROCEDURAL BACKGROUND
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
2
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
3
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
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 consecutive middle term of two years on count 3.
III. DISCUSSION
A. Retroactivity Principles
Under In re Estrada (1965) 63 Cal.2d 740 (Estrada), “[w]hen the Legislature has
amended a statute to reduce the punishment for a particular criminal offense, we will
assume, absent evidence to the contrary, that the Legislature intended the amended statute
to apply to all defendants whose judgments are not yet final on the statute’s operative
date.” (People v. Brown (2012) 54 Cal.4th 314, 323, fn. omitted.) As relevant here, a
law is ameliorative when it lessens the punishment (Estrada, supra, at p. 745) or possible
punishment (People v. Francis (1969) 71 Cal.2d 66, 76) for criminal conduct. “ ‘The
Estrada rule rests on an inference that, in the absence of contrary indications, a legislative
body ordinarily intends for ameliorative changes to the criminal law to extend as broadly
4
as possible, distinguishing only as necessary between sentences that are final and
sentences that are not.’ ” (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.)
B. Amended Section 1170
The parties agree that Senate Bill No. 567’s amendment of section 1170,
subdivision (b), which made the middle term the presumptive sentence unless certain
circumstances exist, applies retroactively to defendant and requires remand for
resentencing. We concur.
As amended, section 1170, subdivision (b) provides 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. . . .”
Because this case is not yet final, defendant is entitled to the retroactive
application of Senate Bill No. 567 as it effected an ameliorative change to the law and
nothing indicates that the Legislature intended the amendment to section 1170 to apply
solely prospectively. (See People v. Flores (2022) 73 Cal.App.5th 1032, 1039.)
The trial court imposed the upper term on count 1, finding the following factors in
aggravation: the crime involved great violence, great bodily harm, threat of great bodily
harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness (Cal.
5
Rules of Court, rule 4.421(a)(1));2 the 64-year-old elderly victim was particularly
vulnerable and defenseless against the attack (rule 4.421(a)(3)); defendant unlawfully
interfered with the judicial process by attempting to dissuade the victim from assisting
with the prosecution of the crimes (rule 4.421(a)(6)); defendant has engaged in violent
conduct that indicates a serious danger to society (rule 4.421(b)(1)); defendant’s prior
convictions as an adult and sustained juvenile petitions are numerous and increasing in
seriousness (rule 4.421(b)(2)); defendant has served prior prison terms (rule 4.421(b)(3));
defendant was on parole when he committed the current offenses (rule 4.421(b)(4)); and
defendant’s prior performance on probation and parole was unsatisfactory
(rule 4.421(b)(5)). The court found no factors in mitigation.
At least several of the court’s findings of aggravation were not based on
“facts . . . stipulated to by the defendant, or . . . found true beyond a reasonable doubt,”
as required by amended section 1170, subdivision (b)(2). And while subdivision (b)(3)
of section 1170 allows a trial court to “consider the defendant’s prior convictions in
determining sentencing based on a certified record of conviction without submitting the
prior convictions to a jury,” it is unclear from the record whether the court was basing
its findings relating to defendant’s criminal history on certified records of conviction and
whether the court would have imposed the upper term based solely on defendant’s prior
convictions absent the additional circumstances of aggravation.
Accordingly, we will remand the matter for the trial court to resentence defendant
under section 1170, subdivision (b), as amended by Senate Bill No. 567.
C. Amended Section 654
The parties agree that Assembly Bill No. 518’s amendment to section 654, which
gives trial courts additional sentencing discretion, applies retroactively to defendant. We
concur.
2
All further rule references are to the California Rules of Court.
6
Section 654 prohibits multiple punishment for a single act or omission. (See
People v. Delgado (2017) 2 Cal.5th 544, 570.) At the time of sentencing, section 654
required the trial court to impose punishment “under the provision that provide[d] for
the longest potential term of imprisonment.” (Former § 654, subd. (a).)
Assembly Bill No. 518 amended section 654 to give trial courts discretion to select
the provision on which to impose punishment. (People v. Sek (2022) 74 Cal.App.5th
657, 673.) As relevant here, section 654 now provides, “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), italics added.)
Because the amendment gives trial courts the discretion to impose a lesser
punishment, it is ameliorative. (People v. Mani (2022) 74 Cal.App.5th 343, 379 (Mani).)
As nothing in Senate Bill No. 518 indicates that the Legislature intended the amendment
to apply solely prospectively, it applies to all cases not yet final, including this case.
(Mani, supra, at p. 343.)
The trial court imposed an unstayed upper-term sentence of four years on count 1
plus a three-year sentence enhancement. The court stayed pursuant to section 654 a
concurrent upper-term sentence of four years on count 2. As amended section 654 now
allows the trial court to impose an unstayed sentence on count 2 and to stay the sentence
on count 1 and its related enhancement, we shall remand the matter for the trial court to
exercise its newfound sentencing discretion. We express no opinion on how the trial
court should exercise its discretion on remand.
IV. DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for
resentencing under newly amended Penal Code sections 1170 and 654.
7
BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
DANNER, J.
WILSON, J.
People v. Negrete
H049396