People v. Lisanti CA6

Filed 11/15/24 P. v. Lisanti CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H052014 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C2212718)

v.

ROBERT JOSEPH LISANTI,

Defendant and Appellant.

I. INTRODUCTION Pursuant to a plea agreement, defendant Robert Joseph Lisanti pleaded no contest to lewd or lascivious act on a child under the age of 14 (Pen. Code, § 288, subd. (a))1 and assault with intent to commit forcible sodomy (§ 220, subd. (a)). The trial court imposed an aggregate sentence of six years. Defendant asserts that the trial court erred by applying custody credits exclusively to one count instead of to his aggregate sentence, and that the abstract of judgment contains clerical errors. We will affirm the judgment, ordering certain corrections to the abstract of judgment.

1 All further statutory references are to the Penal Code.

II. BACKGROUND The facts regarding defendant’s crimes are not relevant to the issues presented on appeal. Following a preliminary hearing, defendant was charged by information with two counts: sodomy by force, violence, duress, menace, or fear (§ 286, subd. (c)(2)(A); count 1); and lewd or lascivious act on a child under the age of 14 (§ 288, subd. (a); count 2). The information alleged that defendant committed the offenses against multiple victims (§ 667.61, subds. (b) & (e)), that aggravating circumstances applied to each of defendant’s offenses (§ 1170, subd. (b)), and that defendant sustained four prior strike convictions (§ 1170.12). The prosecution later moved to add a third count alleging assault with intent to commit forcible sodomy (§ 220, subd. (a); count 3). Pursuant to a negotiated disposition, defendant pleaded no contest to counts 2 and 3. Defendant also admitted the aggravating circumstance that the victims for both counts were particularly vulnerable (Cal. Rules of Court, rule 4.421(a)(3)). The parties agreed that pursuant to the plea agreement, the trial court would impose an aggregate sentence of no less than seven years and no more than twelve years, and before defendant entered his pleas, the trial court stated that it “would be comfortable with sentencing at the seven- year level.” At sentencing, the trial court granted the prosecution’s motion to dismiss count 1 and the remaining allegations. The probation officer’s presentencing report advised that the presentence credits defendant was entitled to should apply to count 3, with no credits applied to count 2 “[d]ue to consecutive sentencing . . . .” At the sentencing hearing, the trial court imposed a middle term sentence of four years on count 3 and a consecutive sentence of two years (one-third the middle term) for count 2, for an aggregate sentence of six years. The trial court determined that defendant was entitled to 354 days of credit.2 Concerning the