The opinion
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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
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had hit him, but kept driving. Defendant did not recall crossing lanes to block C. S. and
admitted he never saw a gun, nor did he hear C. S. say anything about a gun.
In rebuttal, the People presented the testimony of Officer Kevin Bliss who
contacted defendant at the shopping center following the incident. Defendant denied
responsibility and failed to mention that C. S. may have been armed.
Defendant then filed a Romero motion to strike the prior strike, arguing the victim
C. S. was not blameless in the pending action and the prior strike conviction was 24 years
old and involved a smash and grab of gold nuggets at a bank following the death of
defendant’s father and a close friend. Defendant’s only conviction involving violence
was a misdemeanor that predated the strike conviction. Defendant had worked hard
following the strike conviction to regain his contractor’s license, start a business, and live
a life of good character, despite having suffered a few DUI convictions. Accordingly,
defendant argued he fell outside of the spirit of the three strikes law. The People opposed
this motion.
At defendant’s sentencing hearing, the trial court exercised its discretion to deny
the Romero motion in light of the seriousness of defendant’s conduct in the present
offense and his 12 misdemeanor convictions occurring between 1989 and 2013.
Thereafter, the trial court sentenced him to an aggregate prison term of six years in
prison, which was comprised of the midterm of three years, doubled because of the prior
strike for the assault, plus two years concurrent for fleeing the scene. The court also
imposed various fines and fees, including a $1,095 probation report fee. Defendant
timely appealed.
DISCUSSION
I
The Romero Motion
Defendant contends the trial court erred in denying his Romero motion. We
disagree.
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Penal Code2 section 1385 gives the trial court authority, on its own motion or
upon application of the prosecution, “and in furtherance of justice,” to order an action
dismissed. (§ 1385, subd. (a).) In Romero, our Supreme Court held that a trial court may
utilize section 1385 to strike or dismiss a prior strike for purposes of sentencing under the
three strikes law. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504.) A
trial court’s ruling denying a request to dismiss a prior strike allegation “is subject to
review under the deferential abuse of discretion standard.” (People v. Carmony (2004)
33 Cal.4th 367, 374.)
“In reviewing for abuse of discretion, we are guided by two fundamental precepts.
First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the
sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a
showing, the trial court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence will not be
set aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed merely
because reasonable people might disagree. ‘An appellate tribunal is neither authorized
nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’
[Citations.] Taken together, these precepts establish that a trial court does not abuse its
discretion unless its decision is so irrational or arbitrary that no reasonable person could
agree with it.” (People v. Carmony, supra, 33 Cal.4th at pp. 376-377.)
In Carmony, our Supreme Court explained: “ ‘[T]he Three Strikes law does not
offer a discretionary sentencing choice, as do other sentencing laws, but establishes a
sentencing requirement to be applied in every case where the defendant has at least one
qualifying strike, unless the sentencing court “conclud[es] that an exception to the
scheme should be made because, for articulable reasons which can withstand scrutiny for
2 Further undesignated section references are to the Penal Code.
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abuse, this defendant should be treated as though he actually fell outside the Three
Strikes scheme.” ’ ” (People v. Carmony, supra, 33 Cal.4th at p. 377.) The
circumstances where no reasonable people could disagree that the criminal falls outside
the spirit of the three strikes scheme must be extraordinary. (Id. at p. 378.) Reversal is
justified where the trial court was unaware of its discretion to dismiss a prior strike or
considered impermissible factors in declining to dismiss. (Ibid.) But where the trial
court, aware of its discretion, “ ‘balanced the relevant facts and reached an impartial
decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling,
even if we might have ruled differently in the first instance.’ ” (Ibid.)
In deciding whether to dismiss a prior strike allegation, a trial court “must consider
whether, in light of the nature and circumstances of his present felonies and prior serious
and/or violent felony convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part,
and hence should be treated as though he had not previously been convicted of one or
more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
We find no abuse of discretion. In ruling on defendant’s motion, there is nothing
to suggest that the trial court was unaware of its discretion or acted outside of the spirit of
the three strikes law. The decision was neither irrational nor arbitrary. Accordingly,
defendant has not shown a basis to overturn the court’s decision.
II
Assembly Bill No. 1869
Defendant requests that we modify the judgment to vacate the presentence
probation report fee (§ 1203.1b) of $1,095 in light of the passage of Assembly Bill
No. 1869 (2019-2020 Reg. Sess.) and direct the trial court to prepare an amended abstract
of judgment striking that fee. We agree that defendant is entitled to this relief.
Assembly Bill No. 1869 was signed into law in September 2020 and became
operative on July 1, 2021. The bill repeals the authority to collect various fees contingent
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upon a criminal arrest, prosecution, or conviction for the cost of administering the
criminal justice system. (See Stats. 2020, ch. 92, §§ 11, 62.) The bill makes the unpaid
balance of these court imposed costs, including the fee at issue in this case, unenforceable
and uncollectible, and requires that any portion of a judgment imposing such costs be
vacated. (See ibid.; § 1465.9, subds. (a), (b) [operative July 1, 2021]; Gov. Code, § 6111,
subds. (a), (b) [same].)
Specifically, as relevant to this appeal, any unpaid portion of the $1,095
presentence probation report fee imposed pursuant to section 1203.1b is now
“unenforceable and uncollectible.” (§ 1465.9.) Further, “any portion of a judgment
imposing those costs shall be vacated.” (Id., subd. (a).)
DISPOSITION
The judgment is modified to vacate the $1,095 probation report fee imposed
pursuant to section 1203.1b. The trial court is directed to prepare an amended abstract of
judgment and provide a certified copy to the Department of Corrections and
Rehabilitation. The judgment is affirmed as modified.
/s/
Robie, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Krause, J.
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