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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

ALEXANDER JOHN LINSALATO,

 Defendant and Appellant.

2d Crim. No. B303159

(Super. Ct. No. KA120365)

(Los Angeles County)

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.

1 All statutory references are to the Penal Code unless 

stated otherwise.
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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 threeyear 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.