Filed 11/24/15 P. v. Negrete CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067860

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCS275668)

JOEY NEGRETE,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Garry G.

Haehnle, Judge. Affirmed.

         Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Susan Miller,

Deputy Attorneys General, for Plaintiff and Respondent.
       As part of a plea agreement, Joey Negrete entered a guilty plea to one count of

possession of a dirk or dagger. (Pen. Code,1 § 21310.) Negrete also admitted a

serious/violent felony prior conviction. (§ 667, subds. (b)-(i).) The remaining counts and

allegations were dismissed.

       Negrete's motion to strike the serious/violent felony prior was denied by the court.

Negrete was sentenced to a determinate term of four years in prison. Negrete filed a

timely notice of appeal, however, his request for a certificate of probable cause was

denied.

       In this appeal, Negrete challenges the trial court's decision to deny his motion to

strike the prior conviction. He argues the "proper" decision would have been to strike the

prior and impose a lesser sentence. As we will discuss, the question in reviewing a trial

court's sentencing decision is whether there was an abuse of the court's broad discretion.

Whether reasonable minds might differ as to the "best" or "proper" choice is not a

decision we should make on appeal. We must uphold the trial court's discretionary

sentencing choices unless the appellant demonstrates a clear abuse of discretion. On this

record, Negrete has not even come close to such a showing. Accordingly, we will affirm

the judgment.

                                STATEMENT OF FACTS

       On October 29, 2014, Negrete entered the Ares Armour store, a gun shop in

National City. Negrete began making statements about combating terrorism. The clerk



1      All further statutory references are to the Penal Code unless otherwise specified.
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told him to leave the store if he was not going to purchase anything. Negrete produced a

knife and said, "I could throw this knife at you before you could even draw your

weapon." The clerk displayed a handgun and told Negrete to get out. Negrete fled from

the store.

       When he was contacted by officers, Negrete was hostile and refused to cooperate.

He was ultimately detained.

                                        DISCUSSION

       Negrete contends the court should have dismissed his serious/violent felony prior

conviction and imposed a lesser sentence. He argues that such decision would have been

the "proper" or "better" choice.

                                       A. Background

       Prior to sentencing, Negrete was evaluated by a psychologist. The doctor

concluded that Negrete suffered from serious substance abuse, which might be masking a

more serious disorder. Based in part on the evaluation, Negrete filed a motion to strike

the serious/violent felony prior conviction pursuant to People v. Superior Court (Romero)

(1996) 13 Cal.4th 497. Following argument, the court denied the motion to strike the

prior. The court said:

             "Well, according to Dr. DeFrancesco, he himself is not sure that
             there are any underlying mental health issues. It says, 'Mr. Negrete
             has at least severe substance abuse dependency disorders that could
             be masking an underlying and separate severe psychotic illness,' not
             that he does, but could be.

             [¶] . . . [¶]



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          "Negrete . . . has a severe history of violence and weapons in his
          background. He continues to carry weapons with him. He was
          unsuccessful on parole and he himself hasn't taken any steps to get
          off drugs.

          "He went through juvenile court probation and they did all kinds of
          things for him there that didn't work, and he continued on his way.

          "In this case I do not find that he is -- meets the factors described by
          Romero or that he would fall within my discretion pursuant to 1385
          to strike a strike. In this case the court is not going to strike the
          strike.

          "I have to -- there is no treatment program that's there for him. If he
          was going to get into a treatment program, it doesn't look like he
          would comply with that program because he hasn't complied with
          any programs in the past.

          "So based on his history, I'm going to impose the mid-term of two
          years. That will be doubled pursuant to the California Three-Strikes
          law for the total term of four years."

       The probation report shows that Negrete had two prior prison commitments, the

last of which was for robbery. He had an extensive record of contacts with the criminal

justice system, particularly with instances involving weapons. Negrete was on parole for

the robbery offense at the time of the commission of the current offense.

                                    B. Legal Principles

       Under section 1385, trial courts have the discretion to strike a serious/violent

felony prior conviction and impose a sentence less than would be required if the prior

remained in place. (Romero, supra, 13 Cal.4th at p. 504.) We review a trial court's

decision to grant or deny a motion to strike a prior conviction under the abuse of

discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374.)



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       Although courts have the discretion to strike serious/violent felony priors, the

court must exercise its discretion, having in mind the purpose of the Three Strikes law.

In doing so, the court must consider the defendant's character, criminal history,

background and prospects for rehabilitation. In short, the court must decide if the

defendant should be deemed outside the spirit of the Three Strikes sentencing scheme.

(People v. Williams (1998) 17 Cal.4th 148, 161.)

                                        C. Analysis

       Negrete does not seriously contend the trial court abused its discretion. Rather his

arguments are advanced in terms such as the "proper" sentence. Negrete emphasizes the

nature of his mental condition and his need for treatment, which unfortunately he has

never accepted in the past. As we have expressed at the outset of this opinion, our task is

not to determine what would have been the "best" or "proper" sentencing choice, that is

the role of the trial judge. Our task is more narrow. We must determine whether the trial

court abused its discretion. In other words, was the decision arbitrary, irrational,

uninformed, or so far from a reasonable choice that we can say the court abused its

discretion.

       Applying the correct standard of review to this record, it is very clear the court did

not abuse its discretion in denying the motion to strike the prior. Negrete was on parole

for robbery when he committed the current offense. The probation report shows he had

violated his parole 10 times before the current crime. The court noted Negrete has never

taken advantage of treatment or rehabilitation opportunities. Although the court

recognized it had the authority to strike the prior, it declined to do so. The implied

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finding that Negrete comes fully within the spirit of the Three Strikes law is supported by

the record. There was no abuse of discretion in this case.

                                     DISPOSITION

       The judgment is affirmed.




                                                                            HUFFMAN, J.

WE CONCUR:


              McCONNELL, P. J.


                       AARON, J.




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