People v. Negrete CA6

Filed 6/17/22 P. v. Negrete CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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