People v. Luisotti CA3

Filed 8/22/16 P. v. Luisotti CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C078373

Plaintiff and Respondent, (Super. Ct. No. 62-099787)

v.

VICTOR LUISOTTI, JR.,

Defendant and Appellant.

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.

1

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.