People v. Pestoni CA3

Filed 11/18/21 P. v. Pestoni CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (El Dorado) ----

THE PEOPLE, C093092

Plaintiff and Respondent, (Super. Ct. No. P19CRF0352)

v.

JOSEPH PESTONI,

Defendant and Appellant.

A jury found defendant Joseph Pestoni guilty of assault with a deadly weapon and leaving the scene of an accident. Defendant admitted he had previously been convicted of robbery in 1995, which qualified as a strike under the three strikes law. After denying his Romero1 motion to strike that prior conviction, the trial court sentenced him to an aggregate term of six years in prison. On appeal, defendant argues the trial court abused its discretion in denying his Romero motion and that he is entitled to relief in light of the passage of Assembly Bill No. 1869 (2019-2020 Reg. Sess.), which was enacted to “eliminate the range of

1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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administrative fees that agencies and courts are authorized to impose to fund elements of the criminal legal system and . . . all outstanding debt incurred as a result of the imposition of administrative fees.” (Stats. 2020, ch. 92, § 2.) We concur that defendant is entitled to the ameliorative benefits of Assembly Bill No. 1869 and will modify the judgment accordingly. We otherwise affirm. FACTUAL AND PROCEDURAL BACKGROUND At trial, the People presented evidence that defendant and the victim C. S. were traveling on Missouri Flat Road in El Dorado County. On three separate occasions, defendant maneuvered his truck so as to prevent C. S.’s attempts to pass him on his motorcycle by splitting lanes. Once defendant stopped at a red light, C. S. drove next to the window of defendant’s truck, yelling at him that he could have killed him. Defendant replied, “I should have” or “I would have killed you.” In response, C. S. smacked defendant’s mirror, telling him to use it next time. Defendant then turned his wheel and accelerated, running over C. S.’s left foot and crushing the front of C. S.’s motorcycle. Defendant then fled. The collision and flight were witnessed by several individuals, two who followed defendant into a shopping center. One of these witnesses confronted defendant, and defendant said he ran because he thought C. S. had a gun. Defendant reluctantly stayed at the shopping center until police arrived. This witness did not see anything in C. S.’s hands. Defendant testified in his defense, admitting that he saw C. S. passing cars by splitting lanes and blocked C. S. from passing him on two separate occasions, stating he thought C. S. was driving dangerously. At the red light, the two exchanged words and then C. S. smacked his passenger side mirror three or four times. C. S. then released the throttle, and defendant became concerned that C. S. might have a gun, so he veered to the right and fled. Defendant initially denied intentionally veering, but later admitted he had veered intentionally to “to get him off me.” Defendant knew almost immediately that he