Filed 8/4/26 P. v. Neal CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A174292
v. (San Mateo County
JOSEPH ALBERT NEAL, Super. Ct. No. 24-NF-014408-A)
Defendant and Appellant.
Defendant Joseph Albert Neal appeals from a judgment entered after
pleading no contest to felony lewd act upon a child and admitting a prior
strike conviction. Prior to sentencing, Neal filed a Romero1 motion to dismiss
his admitted prior strike, which the court denied. The court then sentenced
Neal to a low term of three years in state prison doubled for a total of six
years.
Neal’s counsel asks this court to independently examine the record in
accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende), to determine
if there are any arguable issues that require briefing.2 Counsel advised Neal
1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
2 Neal did not obtain a certificate of probable cause and does not
challenge the validity of his plea; thus, our review is similarly limited. (Cal.
Rules of Court, rule 8.304(b)(3); further rules citations are to the California
Rules of Court.)
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of his right to file a supplemental brief, but Neal has not done so. After an
independent review of the record, we find no meritorious issues. Accordingly,
we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The San Mateo County District Attorney charged Neal by information
with three felony violations of lewd act with a minor (Pen. Code, § 288,
subd. (a); all further undesignated statutory references are to the Penal Code)
and one misdemeanor violation of child molestation (§ 647.6, subd. (a)(1)).
The information also alleged Neal had two or more prior strikes and a prior
serious felony (§§ 667, subd. (a)(1), 1170.12, subd. (c)(2)).
The charges arose from allegations by Neal’s roommate, Ms. H., that
Neal had shown her 13-year-old daughter (victim) pornography. The victim
also reported Neal had groped her breast, touched her on other occasions,
made sexual comments, and asked her to perform oral sex. Neal
acknowledged showing the victim pornography but alleged it was “just to
educate the victim on sexual intercourse.”
Pursuant to a negotiated disposition, Neal pled no contest to a single
felony violation of section 288, subdivision (a), lewd act with a minor
(count 1), and admitted a prior strike conviction under section 1170.12,
subdivision (c)(2). He acknowledged the associated maximum penalty of 12
years’ imprisonment with the Department of Corrections and Rehabilitation
(CDCR), $10,000 in fines, $10,000 in restitution fines, unspecified actual
restitution, and DNA testing. The represented disposition provided that Neal
would be sentenced to three years in state prison, potentially doubled due to
his strike prior for a “top” of six years. Neal reserved his right to make a
Romero motion and seek probation.
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Prior to sentencing, the People filed a sentencing memorandum
summarizing Neal’s criminal history, which included multiple misdemeanors
and felonies. His prior strikes arose from an instance where Neal forced his
way into a woman’s vehicle, forced her to drive to a bank and withdraw
money, and threatened her life, which resulted in the woman jumping from
the moving vehicle because she feared he would kill her. Neal was sentenced
to life with the possibility of parole. The People identified numerous factors
in aggravation, and only one—the length of time since the strike
enhancement—in mitigation. The People also recognized the court’s
discretion to strike Neal’s strike prior (see, e.g., § 1385, subd. (a); People v.
Orin (1975) 13 Cal.3d 937, 945–947; People v. Williams (1998) 17 Cal.4th 148,
161), but argued against doing so, asserting that Neal “has not led a law-
abiding lifestyle since [the strike’s] commission.” The People noted Neal’s
most recent conviction involved aiding in prostitution, the nature of his prior
strike was “a violent and serious felony,” and “[t]he current offense is both
violent and serious in nature.”
The probation department’s presentencing report recommended a
CDCR sentence and sex offender registration based on Neal’s lack of
accountability, the seriousness of the offense, and his continued reoffending
despite having suffered a substantial past sentence. The report stated that
Neal admitted showing the victim pornography but denied touching her or
making inappropriate sexual comments. However, he had previously
acknowledged making sexual comments to the victim and “accidentally”
touching her breast on occasion. Neal acknowledged showing her
pornography was wrong, but stated it was a “lack of judgment” and he “was
trying to help and be a father figure” for the victim. The probation report
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noted Neal’s remorse was primarily tied to the repercussions he has
experienced rather than from the wrongdoing itself.
Pursuant to rule 4.421, the probation department noted five
circumstances in aggravation: (1) the crime involved the threat of great
bodily harm and callousness; (2) the victim was particularly vulnerable due
to being a child; (3) Neal took advantage of a position of trust or confidence;
(4) Neal’s prior convictions are numerous and serious; and (5) Neal has
served a prior term in prison. The only identified factors in mitigation were
the age of the prior convictions and no noted violations during Neal’s prior
probation and parole terms.
Neal filed a two-page Romero motion to dismiss his prior strike
conviction, articulating three bases for consideration: (1) the “nature and
circumstances of [Neal’s] present felony”; (2) the nature of the prior strike;
and (3) the “particulars” of Neal’s background and character. Specifically,
defense counsel argued the prior strike convictions all occurred in the same
case 35 years ago, and Neal “expressed remorse” and “understands that his
conduct [with the victim] was unacceptable.” Counsel therefore requested the
court grant the motion.
At the subsequent sentencing hearing, defense counsel emphasized
that Neal took responsibility, has “no history” of any related conduct, and has
medical issues. Counsel requested the court strike the strike and consider
probation.
The court denied Neal’s Romero motion. It explained that despite the
passage of 35 years, the prior strike involved robbery and kidnapping to
commit robbery, a “very, very serious offense” for which he received a 25-year
sentence. Based on that conduct, combined with the admitted charge of a
felony lewd act upon a child, the court concluded Neal fell within the scheme
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of the “three strikes case” and sentenced him to six years. The court further
imposed a no-contact order, assessed various restitutions and fines, and
required Neal to register as a sex offender.
DISCUSSION
Neal’s counsel filed a Wende brief, which set forth the material facts
but did not raise any issues for our consideration. Counsel requested that we
independently review the record to decide whether there exists any
nonfrivolous issue for appeal. (Wende, supra, 25 Cal.3d 436.) The brief also
included a declaration that counsel had written to Neal and informed him of
his right to file a supplemental brief. Neal did not exercise this right.
We have examined the entire record and are satisfied that Neal’s
attorney has fully complied with his responsibilities and that no arguable
issues exist. (Wende, supra, 25 Cal.3d 436.)
Because Neal did not obtain a certificate of probable cause, only post-
plea actions are subject to review, i.e., Neal’s Romero motion and sentencing.
The record demonstrates the trial court did not abuse its discretion in
denying Neal’s Romero motion. (People v. Carmony (2004) 33 Cal.4th 367,
371 (Carmony).) The “Three Strikes” law restricts courts’ discretion in
sentencing repeat offenders. (Romero, supra, 13 Cal.4th at p. 528.) To this
end, it generally requires that prior strike convictions be applied in
sentencing unless the sentencing court concludes that “extraordinary”
circumstances justify deeming a defendant outside the spirit of the Three
Strikes law. (Carmony, at pp. 377–378.) In considering these circumstances,
“ ‘ “ ‘[a]n appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge.’ ” ’ ” (Id. at
p. 377.) Because there is a strong presumption that a sentence conforming to
the Three Strikes law is “both rational and proper,” a trial court will
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generally only be found to have abused its discretion in “limited
circumstances” such as where the court was unaware of its discretion to
dismiss a strike or considered impermissible factors in declining to dismiss.
(Carmony, at p. 378.)
Here, no extraordinary circumstances exist. The court expressly
considered the mitigating circumstances identified by the defense, including
the age of Neal’s prior strike conviction and his acceptance of responsibility
through his plea. The court nevertheless concluded that those considerations
were outweighed by other permissible factors, including the seriousness of
the prior strike, the current offense involving a child victim, and Neal’s
position of trust as a family friend and cohabitant in the victim’s home.
The sentence likewise presents no arguable issue. The court imposed
the low term contemplated by the negotiated disposition, doubled pursuant to
Neal’s admitted strike prior, resulting in an aggregate six-year prison term.
The court also imposed the required sex offender registration, restitution
orders, fines, fees, and assessments authorized by law.
Our independent review of the entire record—including the plea
proceedings, the factual basis for the plea, the waiver of constitutional rights,
the sentencing hearing, and the resulting judgment—reveals no reasonably
arguable appellate issues. Accordingly, we affirm.
DISPOSITION
The judgment is affirmed.
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PETROU, J.
WE CONCUR:
FUJISAKI, Acting P. J.
RODRÍGUEZ, J.
A174292 / People v. Neal
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