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Filed 8/22/16 P. v. Luisotti CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Placer)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

VICTOR LUISOTTI, JR.,

Defendant and Appellant.

C078373

(Super. Ct. No. 62-099787)

In this case, we address the relationship between the resentencing provisions of 

Penal Code section 1170.181 and the consecutive sentencing provision of the “Three 

Strikes” law. Here, after granting defendant Victor Luisotti, Jr.’s section 1170.18 petition 

seeking reclassification of certain felony convictions as misdemeanors, the trial court 

 

1 Undesignated statutory references are to the Penal Code.
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imposed the same total term as previously imposed by modifying one count to run 

consecutively rather than concurrently imposing sentence.

Defendant contends the trial court’s action violated the California Constitution’s 

prohibition against double jeopardy, exceeded the court’s jurisdiction on resentencing, 

and contravened section 1170.18’s prohibition against imposing a greater term on 

resentencing. The Attorney General argues that we do not have to reach defendant’s 

contentions because the original concurrent term had been imposed in contravention of 

the mandatory consecutive sentence provision in the Three Strikes law. Agreeing with 

the Attorney General, we affirm the trial court’s orders.

BACKGROUND

In July 2009, defendant took his elderly mother’s access card and used it without 

her permission at several Roseville businesses. Defendant was charged with five counts 

of second degree burglary (§ 459), single counts of grand theft (§ 484g), and identity 

theft from an elder or dependent adult (§ 368, subd. (e)) along with a strike and two prior 

prison term allegations (§§ 1170.12, subds. (a)-(e), 667, subds. (b)-(i), 667.5, subd. (b)) in 

case No. 62-094790. 

During a probation search around April 4, 2010, defendant kicked out the window 

of a police car. He was charged with vandalism exceeding $400 (§ 594, subd. (b)(1)) and 

receiving stolen property (§ 496, subd. (a)), along with an on-bail allegation (§ 12022.1) 

and a strike allegation in case No. 62-097872. 

Around May 25, 2010, defendant failed to appear on felony charges in the trial 

court after being released on his own recognizance. He was charged with felony failure 

to appear (§ 1320, subd. (b)) along with a strike and two prior prison term allegations in 

case No. 62-099787. 
3

On September 15, 2010, all cases were resolved simultaneously in a packaged plea 

bargain, along with case No. 62-100772A,

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including a stipulated term of eight years four 

months. In case No. 62-094790, defendant pleaded no contest to single counts of second 

degree burglary, grand theft, and misdemeanor identity theft of an elder, and admitted a 

strike as to the burglary count and a prior prison term. In case No. 62-097872, defendant 

pleaded no contest to felony vandalism and admitted the strike and on-bail allegations. In 

case No. 62-99787, defendant pleaded no contest to the failure to appear charge. In case 

No. 62-100772A,3 defendant pleaded no contest to second degree burglary, passing 

checks with insufficient funds for payment (§ 476a), and felony possession of a 

controlled substance (Health & Saf. Code, § 11377), and admitted a strike conviction as 

to the drug possession count. Sentencing defendant on all four cases, the trial court 

imposed a stipulated term of eight years four months. This sentence consisted of two 

years eight months for the second degree burglary in count one and a consecutive year for 

the prison prior in case No. 62-094790, a consecutive one year four months for 

possession of a controlled substance in case No. 62-100772A, and, in case No. 62-

097872, a consecutive one year four months for vandalism with two years consecutive for 

the on-bail enhancement. Terms for the remaining crimes were imposed concurrently. 

Defendant subsequently filed a petition for resentencing pursuant to section 

1170.18. The trial court designated the second degree burglary conviction in count one 

of case No. 62-094790 and all felony convictions in case No. 62-100772A as 

misdemeanors. At resentencing, the trial court imposed an eight-year four-month state 

prison term. It designated the grand theft in case No. 62-094790 as the principal term and 

 

2 The record contains no mention of the facts of defendant’s crimes in case No. 62-

100772A.

3 This case was not part of defendant’s appeal but is nonetheless summarized to 

provide context. 
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imposed a two-year eight-month term with a consecutive one year for the prison prior, a 

consecutive one year four months for failure to appear in case No. 62-099787, and a 

consecutive one year four months for vandalism with two consecutive years for the on 

bail enhancement in case No. 62-097872. 

DISCUSSION

The passage of Proposition 47 created section 1170.18, which provides for any 

defendant “currently serving a sentence for a conviction . . . of a felony or felonies who 

would have been guilty of a misdemeanor under [Proposition 47] had [it] been in effect at 

the time of the offense [to] petition for a recall of sentence before the trial court that 

entered the judgment of conviction in his or her case to request resentencing” under the 

statutory framework as amended by the passage of Proposition 47. (§ 1170.18, subd. (a); 

see Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14, pp. 73-74.) 

If a defendant has qualifying offenses, the trial court shall designate those offenses as 

misdemeanors and resentence defendant unless it determines that resentencing poses an 

unreasonable risk of danger to public safety. (§ 1170.18, subd. (b).) “Under no 

circumstances may resentencing under this section result in the imposition of a term 

longer than the original sentence.” (§ 1170.18, subd. (e).) 

Defendant contends that the trial court’s decision to change the sentence on the 

failure to appear conviction from a concurrent to a consecutive term violated the double 

jeopardy prohibition in the California Constitution. (Cal. Const. art. I, § 15.) He 

additionally argues that the court’s decision was erroneous because the four cases were 

not combined and the sentence contravened section 1170.18’s prohibition against 

imposing a greater term on resentencing. 

The Attorney General claims that the Three Strikes law mandated a consecutive 

term on the failure to appear offense. Under the Three Strikes law, when a qualifying 

strike has been plead and proven, consecutive sentencing is mandated for counts “not 

arising from the same set of operative facts.” (§ 1170.12, subd. (a)(6); see § 667, subd. 
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(c)(6) [“If there is a current conviction for more than one felony count not committed on 

the same occasion, and not arising from the same set of operative facts, the court shall 

sentence the defendant consecutively on each count pursuant to subdivision (e)”].)4 

Since the failure to appear charge necessarily arose from a different set of operative facts 

than any of the other convictions, the Attorney General concludes that the original 

concurrent term for this offense was unauthorized, and therefore correctable at any time. 

The Supreme Court has addressed the consecutive sentencing provision of the 

Three Strikes law in the context of multiple counts in a single case. In People v. Casper

(2004) 33 Cal.4th 38 (Casper), the Supreme Court held that where a defendant is 

convicted of multiple counts in a single case with a sustained strike allegation attaching 

to at least one count, the consecutive sentencing provision of the Three Strikes law 

applies to “all current felony convictions, regardless of whether a strike allegation 

attaches to them, if the crimes did not arise on the same occasion or under the same set of 

operative facts.” (Id. at p. 43.) Neither the Supreme Court nor any other appellate court 

has determined the consecutive sentencing provision’s application, where, like here, a 

defendant is sentenced on multiple cases, all were resolved simultaneously in a packaged 

plea bargain, along with case No. 62-100772A, including a stipulated term of eight years 

four months. Some sustained strikes were involved.

While the sentence imposed here covered multiple cases, it nonetheless possesses 

significant similarities with what confronted the Supreme Court in Casper. In the case 

before us, defendant and the People entered into a single plea agreement covering the 

four cases. While defendant executed separate change of plea forms for each case, he 

entered the pleas on the same day at a single hearing and a single stipulated term covered 

the combined sentence in all four cases. Contrary to defendant’s contentions, the cases 

 

4 Given the similarity of the two provisions, future statutory references to this and 

other parts of the Three Strikes law will be to section 1170.12.
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were not separate entities for the purpose of determining his state prison sentence. 

“ ‘[W]hen a defendant is sentenced consecutively for multiple convictions, whether in the 

same proceeding or in different proceedings, the judgment or aggregate determinate term 

is to be viewed as interlocking pieces consisting of a principal term and one or more 

subordinate terms. (§ 1170.1, subd. (a).)’ ” (People v. Sellner (2015) 240 Cal.App.4th

699, 701; see also id. at pp. 701-702 [section 1170.1 governs section 1170.18 

resentencing].) Also, in Casper, defendant was charged with a strike allegation as to all 

offenses alleged against him, admitted the strikes as to some counts, with the strike 

dismissed as to others.

Subdivision (a)(6) of section 1170.12 states: “If there is a current conviction for 

more than one felony count not committed on the same occasion, and not arising from the 

same set of operative facts, the court shall sentence the defendant consecutively on each 

count pursuant to this section.” This provision does not distinguish between convictions 

in different cases, instead applying whenever there is a strike and “a current conviction 

for more than one felony.” The use of the term “count” does not support narrowing the 

scope to convictions in one case, as many defendants, like defendant here, are sentenced 

on multiple counts in different cases. Allowing the term to refer to each count that the 

defendant was currently convicted of and being sentenced on is the more natural reading 

of that term. Finally, the limitation on consecutive sentencing to counts “not arising from 

the same set of operative facts” is consistent with application to sentences covering more 

than one case. Crimes involving completely different facts will be prosecuted in different 

cases but may nonetheless all be resolved through a single plea, as was the case here. 

While a single case may have counts arising from more than one set of operative facts, a 

plea resolving more than one case is certain to do so.

Our analysis of the Three Strikes law and Casper both lead to the same 

conclusion, that the consecutive sentencing provision of the Three Strikes law applies 

where a defendant resolves multiple cases by plea. When a defendant is being sentenced 
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on more than one current case, and has admitted a strike as to at least one count, then the 

trial court must impose consecutive sentences on all counts not arising from the same set 

of operative facts.

Defendant’s conviction for failure to appear necessarily arose from different 

operative facts than any of his other convictions. Therefore, the trial court had a 

mandatory duty to impose a consecutive term for that offense. Failure to do so resulted 

in an unauthorized term (see People v. Scott (1994) 9 Cal.4th 331, 354 [sentence 

unauthorized if could not be lawfully imposed under the circumstances of the case]), 

which may be corrected at any time (People v. Picklesimer (2010) 48 Cal.4th 330, 338). 

While the trial court did not rely on this reason for imposing the consecutive term, we 

review the legality of the trial court’s actions, not the reasons given for those actions. 

(People v. Zapien (1993) 4 Cal.4th 929, 976.)

Since imposition of the consecutive term corrected an unauthorized sentence, it 

was not subject to the state double jeopardy provision. (People v. Moreno (2003) 

108 Cal.App.4th 1, 11.) While an unauthorized sentence that is part of a stipulated 

sentence normally cannot be challenged on appeal (People v. Hester (2000) 22 Cal.4th 

290, 295), the sentence imposed at resentencing did not violate the plea agreement, as 

defendant received the same sentence on resentencing as the stipulated term in his plea. 

Nor did section 1170.18’s prohibition against the imposition of a greater term prevent 

correcting an unauthorized sentence. Just as section 1170.18, subdivision (e) does not 

trump section 1170.1 in the determination of aggregate sentences (People v. Sellner, 

supra, 240 Cal.App.4th at p. 702), it does not trump the consecutive sentencing provision 

of the Three Strikes law.
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DISPOSITION

The judgment (order) is affirmed.

 NICHOLSON , Acting P. J.

We concur:

 HULL , J.

 BUTZ , J.