People v. Linsalato CA2/6 ( 2020 )

Filed 11/18/20 P. v. Linsalato CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B303159
(Super. Ct. No. KA120365)
Plaintiff and Respondent, (Los Angeles County)
v.
ALEXANDER JOHN LINSALATO,
Defendant and Appellant.
Alexander John Linsalato appeals a judgment following
conviction of three counts of resisting an executive officer, and
one count of felony vandalism, with findings that he served two
prior prison terms. (Pen. Code, §§ 69, 594, subd. (a), 667.5, subd.
(b).)1 We modify the judgment to strike the prior prison term
enhancements, but otherwise affirm.
All statutory references are to the Penal Code unless
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stated otherwise.
FACTUAL AND PROCEDURAL HISTORY
In the late afternoon of March 2, 2019, Linsalato tried to
open the locked lobby door of the Azusa Police Station. Following
his unsuccessful attempt, he threw rocks and trash at the door
before walking away.
Police Officers Fernando Vasconcelos, Benjamin Cypher,
and Matthew Decaro pursued Linsalato as he walked, then ran,
into a parking lot. The officers ordered Linsalato to stop running
and lie on the ground, but he refused. Cypher caught Linsalato
and pushed him to the ground. Linsalato physically resisted
being handcuffed; the three officers managed to control and
handcuff him. Cypher suffered an elbow abrasion during the
scuffle.
Video cameras captured the pursuit as well as Linsalato
throwing objects and rocks at the police station lobby door. At
trial, the prosecutor played the video-recordings.
The jury convicted Linsalato of three counts of resisting an
executive officer, and one count of felony vandalism. (§§ 69, 594,
subd. (a).) In a separate proceeding, the trial court found that
Linsalato served two prior prison terms within the meaning of
section 667.5, subdivision (b), based upon earlier convictions for
resisting an executive officer and felony vandalism.
On October 11, 2019, the trial court sentenced Linsalato to
a total term of five years, consisting of an upper three-year term
for one count of resisting an executive officer, and upper three-
year terms to be served concurrently for the remaining counts.
The court also imposed two one-year terms for the prior prison
terms served. The court imposed a $300 restitution fine, a $300
parole revocation restitution fine (suspended), a $160 court
security assessment, and a $120 criminal conviction assessment,
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and awarded Linsalato 497 days of presentence custody credit.
(§§ 1202.4, subd. (b), 1202.45, 1465.8, subd. (a); Gov. Code,
§ 70373.)
Linsalato appeals and contends that: 1) the prior prison
term enhancements must be struck pursuant to recent
amendments to section 667.5, subdivision (b), and 2) the trial
court may have abused its discretion pursuant to Pitchess v.
Superior Court (1974) 11 Cal. 3d 531 (Pitchess) in determining
that the police personnel records of Officers Cypher, Decaro, and
Vasconcelos contain no discoverable evidence. The Attorney
General concedes that the prior prison term enhancements must
be struck and does not object to our independent Pitchess review.
DISCUSSION
I.
Linsalato asserts that we must strike the prior prison term
enhancements in view of the amendment to section 667.5,
subdivision (b).
Effective January 1, 2020, Senate Bill No. 136 amended
section 667.5, subdivision (b) to provide: “[T]he court shall
impose a one-year term for each prior separate prison term for a
sexually violent offense as defined in subdivision (b) of Section
6600 of the Welfare and Institutions Code . . . .” (Stats. 2019, ch.
590, § 1.) Linsalato asserts that he cannot be punished for
service of his prior prison terms because they were not served for
any enumerated sexually violent offense.
“ ‘When the Legislature amends a statute so as to lessen
the punishment[,] it has obviously expressly determined that its
former penalty was too severe and that a lighter punishment is
proper as punishment for the commission of the prohibited act. It
is an inevitable inference that the Legislature must have
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intended that the new statute imposing the new lighter penalty
now deemed to be sufficient should apply to every case to which it
constitutionally could apply. The amendatory act imposing the
lighter punishment can be applied constitutionally to acts
committed before its passage provided the judgment convicting
the defendant of the act is not final.’ ” (People v. Superior Court
(Lara) (2018) 4 Cal. 5th 299, 307.)
Linsalato’s judgment is not yet final and thus Senate Bill
No. 136 applies to him. (People v. Jennings (2019) 42
Cal. App. 5th 664, 682.) The Attorney General concedes.
Accordingly, we modify the judgment to strike the two one-year
prior prison term enhancements.
II.
Linsalato requests that we review the trial court’s July 31,
2019, Pitchess proceedings to determine whether the court
abused its discretion in finding no discoverable evidence. The
Attorney General does not object. Prior to trial, Linsalato sought
the personnel records of Cypher, Decaro, and Vasconcelos
concerning complaints of excessive force, among other matters.
The court then conducted an in camera hearing regarding citizen
complaints against the officers and any discipline imposed. After
reviewing the records, the court concluded that there was no
discoverable information.
We have independently reviewed the sealed hearing
transcript and conclude that the trial court properly followed
Pitchess procedures. The court placed the custodian of records
under oath, questioned the custodian carefully, and a court
reporter transcribed the proceedings. The court ordered the
transcript sealed and made a detailed record of the documents it
reviewed. (People v. Mooc (2001) 26 Cal. 4th 1216, 1226, 1229
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[trial court should make a record of the documents it examined
before ruling on the Pitchess motion and can do so by describing
them on the record]; People v. Bipialaka (2019) 34 Cal. App. 5th
455, 462 [same].) The court did not abuse its discretion by
concluding that there was no relevant evidence to be disclosed.
DISPOSITION
We modify the judgment to strike the two one-year prison
term enhancements imposed pursuant to section 667.5,
subdivision (b), and otherwise affirm. We direct the trial court to
prepare an amended abstract of judgment accordingly and to
forward the amended abstract to the Department of Corrections
and Rehabilitation.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
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Mike Camacho, Jr., Judge
Superior Court County of Los Angeles
______________________________
Elizabeth H. Eng, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Rama R. Maline,
Deputy Attorneys General, for Plaintiff and Respondent.
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