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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

ALEXAND ER JOHN LINSALATO

,
Defendant and Appellant. 2d Crim. No. B 30 3159 (Super. Ct. No. KA120365 ) ( Los Angeles County)

Alexander John Linsalato ap peals a judgment following
conviction of three counts of resisting an executive officer

, and
one count of fe lony vandalism, with finding s that he served two prior prison term s . ( Pen. Code, §§ 69, 594, subd. (a) , 667.5, subd. (b).) 1 We modify the judgment to strike the prior prison term
enhancement s , but otherwise affirm.

1 All statutory references are to the Penal Code unless stated otherwise

.2 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, h e threw rocks and trash at t he door before walking away. Police Officers Fernando Vasconcelos, Benjamin Cyphe r, and Matthew Decaro pursued Linsalato as he walked, then ran , into a parking lot. The officers ordered Linsalato to stop running
and l ie 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

tr ial, 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 ye ars, 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 c ourt imposed a $300 restitution fine, a $300 parole revocation restitution fine (suspended), a $160 court security assessment, and a $120 criminal conviction assessment,3

and awarded Linsalato 497 days of p resentence custody credit. (§§ 1202.4, subd. (b), 1202.45, 1465.8, su bd. (a); Gov. Code, § 70373.)
Linsalato appeals and contends that: 1 ) the prior prison
term enhancement s must be struck pursuant to recent amendments to section 667.5, subdivision (b) , and 2) the trial court may have abused its disc retion 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 priso n term enhancements must be struck and does not object to our independent Pitchess review

. D ISCUSSION
I.
Linsalato a ssert s that we must strike the prior prison term
enhancement s in view of the amendment to section 667.5, subdivision (b).
Effective Janua ry 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

66 00 of the Welfare an d Institutions Code

. . . . ” (Stats. 2019, ch. 590, § 1.) Linsalato asserts that he can not be punished for
service of his prior prison term s becau se the y w ere not served for

any enumerated sexually violent offense

. “ ‘ When the Legislature amends a sta tute 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 Legi slature must have4

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 constitutio nally 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 jud gment 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

pr ior prison term enhancements.
II.
Linsalato request s 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

concern ing 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
discove rable 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, 12295

[trial court should make a record of the documents it examined
befo re 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.
DISPOS ITION We modify the judgment to strike the two o ne

- year prison
term enhancement s 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.6 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 Ram a R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.