Filed 12/4/14 P. v. Sorto CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049199

         v.                                                            (Super. Ct. No. 11WF1971)

TOMAS ANTONIO SORTO,                                                   OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Lance
Jensen, Judge. Affirmed as modified.
                   Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James
H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
              Appellant was convicted of, inter alia, three counts of attempted
premeditated murder for shooting at a group of unarmed men who were standing outside
a nightclub. On appeal, he argues there is insufficient evidence he acted with
premeditation, and the trial court’s attempt to clarify the definition of premeditation for
the jury was fatally flawed. We find these arguments unavailing. Therefore, other than
to modify the judgment to correct two undisputed sentencing errors, we affirm.
                                          FACTS
              Mexico de Noche is a nightclub in Stanton. After the club closed at 2:00
a.m. on July 30, 2011, two of its security guards, Francisco Gutierrez and Salvador
Felgueris, along with house deejay Jose Perez, stepped outside to have a smoke near the
front entrance. They were talking among themselves when appellant and two other men
approached. Appellant asked if they had any extra cigarettes and if the club was still
open, and Gutierrez answered no to both questions. Appellant thanked them and walked
away with his group. Although appellant did not show any signs of hostility, one of his
companions had his hand hidden behind his back the whole time, leading Gutierrez to
suspect he might be armed. The encounter also made Perez nervous because he feared
appellant from the neighborhood.
              Following the encounter, appellant and his companions walked across the
street to a self-serve car wash located about 300 feet from the nightclub. There, the man
who had his hand hidden pulled a gun from behind his back and gave it to appellant.
Holding the gun in both hands with his arms fully extended in front of him, appellant
pointed the weapon toward Gutierrez’s group and fired four shots in rapid succession.
Appellant and his cohorts then fled the area on foot.
              At the time of the shooting, Gutierrez and his fellow workers were situated
near a waist-high planter by the entrance to the nightclub. Gutierrez’s car was parked in
front of the club, and there was a pickup truck parked nearby, on the street. Both of these
vehicles were in the line of fire between appellant and the victims. Gutierrez could hear

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the shots whistling by as he and his companions ducked for cover behind the planter.
One of the shots hit the outer wall of the club, about six feet from Gutierrez. Two struck
the pickup truck. When examined, the bullets showed no signs of rifling, indicating they
were fired from a gun that had diminished accuracy.
                Appellant was arrested shortly after the shooting. When the police
searched his residence, they found 10 rounds of ammunition and various writings
associated with a Stanton criminal street gang known as RAW/MTK. A gang expert
testified appellant was a member of RAW/MTK, and by carrying out the shooting in this
case, appellant would not only earn respect for himself, but for his gang as well.
                Appellant was convicted by jury of three counts of attempted premeditated
murder and assault with a semiautomatic firearm and one count each of discharging a
firearm with gross negligence and possessing ammunition while a felon. (Pen. Code, §§
664/187, subd. (a), 245, subd. (b), 246.3, subd. (a), 12316, subd. (b)(1).)1 The jury also
found true allegations appellant acted for the benefit of a criminal street gang and
personally used and discharged a firearm. (§§ 186.22, subd. (b), 12022.5, subd. (a),
12022.53, subd. (c).) The trial court sentenced him to a prison term of 105 years to life,
plus 3 years.
                                       Sufficiency of the Evidence
                Appellant argues there is insufficient evidence to support the jury’s finding
that, in attempting to kill his victims, he acted with premeditation and deliberation. We
disagree.
                The standard of review for assessing the sufficiency of the evidence to
support a criminal conviction is “highly deferential.” (People v. Lochtefeld (2000) 77
Cal.App.4th 533, 538.) Our task is to review the entire record in the light most favorable
to the judgment to determine whether it discloses substantial evidence of the defendant’s


       1        All further statutory references are to the Penal Code.


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guilt. (People v. Alexander (2010) 49 Cal.4th 846, 917.) “Although we must ensure the
evidence is reasonable, credible, and of solid value” (People v. Jones (1990) 51 Cal.3d
294, 314), reversal is not warranted unless “‘upon no hypothesis whatever is there
sufficient substantial evidence to support the judgment.”’ [Citation.]” (People v.
Cravens (2012) 53 Cal.4th 500, 508.)
              Courts traditionally look at three categories of evidence in determining
whether there is sufficient evidence to support a finding of premeditation and
deliberation: 1) Planning, 2) motive and 3) the manner in which the killing or attempted
killing occurred. (People v. Anderson (1968) 70 Cal.2d 15.) These categories are
intended “to aid reviewing courts in assessing whether the evidence is supportive of an
inference that the killing [or attempted killing] was the result of preexisting reflection and
weighing of considerations rather than mere unconsidered or rash impulse. [Citation.]”
(People v. Perez (1992) 2 Cal.4th 1117, 1125.) We must remember “premeditation can
occur in a brief period of time. ‘The true test is not the duration of time as much as it is
the extent of the reflection. Thoughts may follow each other with great rapidity and cold,
calculated judgment may be arrived at quickly . . . .’ [Citations.]” (Id. at p. 1127.)
              In this case, the record shows appellant’s group had a gun with them when
they initially contacted the victims. Although they showed no signs of aggression at that
time, the encounter gave them ample opportunity to size up the victims, and the gunman
kept his hand near his weapon the whole time. Their body language signaled they were
armed, dangerous and ready for action, and that is exactly how Gutierrez interpreted their
conduct. The fact appellant had a loaded handgun at the ready supports the inference the
shooting was planned. (See People v. Lee (2011) 51 Cal.4th 620, 636; People v. Wright
(1985) 39 Cal.3d 576, 593, fn. 5.)
              By virtue of his membership in RAW/MTK, appellant also had a motive to
kill the victims. As the gang expert testified, “Respect is everything to gang members.”
The expert explained gang members earn respect for both themselves and their gang by

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committing crimes and instilling fear in the community, and “the more violent the crime
is the more respect they get.” Based on this testimony, the jury could reasonably infer
appellant wanted to inflict maximum damage on the victims, i.e., kill them, in order to get
maximum respect for himself and his gang. (People v. Villegas (2001) 92 Cal.App.4th
1217, 1224 [gang member’s desire to promote his gang and spread fear in the community
gave him a motive to commit attempted premeditated murder].)2
                 As for the circumstances surrounding the shooting itself, Gutierrez testified
that as soon as appellant’s group crossed the street and made it to the carwash, appellant
obtained the gun from his companion and took up a shooting stance. Both Gutierrez and
Perez saw appellant pointing the weapon precisely in their direction. Gutierrez could
even hear the shots go sailing past him as appellant was shooting. One of the shots
missed him by a mere six feet, and two others struck the nearby pickup truck, which was
directly in the line of fire between appellant and the victims. All of this suggests
appellant targeted the victims by design and was out to kill them.
                 Appellant argues, “That the pickup truck got struck with two bullets is
consistent with [his] using the truck for target practice in a grossly negligent fashion,
acting on a spur-of-the-moment impulse[.]” He also asserts the fact he fired the shots in
rapid succession indicates the shooting was impulsive, and if he had really wanted to kill
the victims, he would have shot them at point-blank range when he initially contacted
them outside the club rather than waiting until he was some 300 feet away.
                 These are reasonable arguments. They underscore why this was probably
not a “slam-dunk” case for the jury. But we are not the jury. Whereas the jury’s burden
of proof was beyond a reasonable doubt, we are guided by the less onerous substantial

         2         The Attorney General argues appellant also had a motive to kill the victims because he had “a
contentious relationship” with Perez. Perez did testify that he was afraid of appellant and went out of his way to
avoid him in the neighborhood. However, there is no evidence appellant ever did anything to Perez, other than stare
at him on a couple of occasions. Although staring can take on sinister connotations when it is done by gang
members, the record fails to support respondent’s suggestion appellant was motivated by any sort of personal
animosity toward Perez.


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evidence standard. So even if we believed the circumstances surrounding the shooting
were reasonably reconcilable with a finding appellant acted rashly and impulsively, that
would not warrant a reversal. (People v. Stanley (1995) 10 Cal.4th 764, 793.) Despite
appellant’s interpretation of the evidence, the fact remains that when viewing the
evidence in the light most favorable to the judgment below, as we are required to do,
there is, for the reasons explained above, substantial evidence to support the jury’s
finding appellant acted with premeditation and deliberation. We cannot disturb the jury’s
finding in that regard.
                               Instructions on Premeditation
              Appellant also insists the trial court erred in failing to clarify the definition
of premeditation for the jury. The claim does not withstand scrutiny.
              In instructing on the attempted murder count, the trial court informed the
jury pursuant to CALCRIM No. 601 that, “The defendant deliberated if he carefully
weighed the considerations for and against his choice and, knowing the consequence,
decided to kill,” and he “premeditate[d] if he decided to kill before acting.” (CALCRIM
No. 601, as given.)
              During deliberations, the jury sent the trial court a note asking for
“clarification of the definition of ‘premeditation’ as it pertains to attempted murder.”
After conferring with counsel, the court told the jury to “see CALCRIM 601, and any
other instructions that you feel are applicable.” Then using language from CALJIC No.
8.67, the court stated, “The word ‘deliberate,’ which relates to how a person thinks,
means formed or arrived at or determined upon as a result of careful thought and
weighing of considerations for and against the proposed course of action. [¶] The word
‘premeditated’ relates to when a person thinks and means considered beforehand. [¶]
One premeditates by deliberating before taking action.”
              Appellant has no qualms with the substance of the court’s response. But he
complains that by telling the jurors to not only see CALCRIM No. 601, but also any other

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instructions they felt were applicable, the court opened the door for them to make their
own decisions about what law to consider in deciding whether the shooting was
premeditated. Appellant views this as an abdication of the court’s responsibility to
properly explain the concept of premeditation. We do not see it that way.
              The trial court must instruct the jurors on all the legal principles necessary
to their understanding of the case. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) If
the jurors seek clarification on a point of law during deliberations, the court must attempt
“to clear up any instructional confusion” they express. (People v. Gonzalez (1990) 51
Cal.3d 1179, 1212, superseded on another ground as stated in In re Steele (2004) 32
Cal.4th 682, 691; § 1138.) But in reviewing the adequacy of any such attempt, we
assume jurors are intelligent people who are fully capable of understanding and
correlating all of the instructions they are given. (People v. Martin (2000) 78
Cal.App.4th 1107, 1111.) Unless it is reasonably likely the jury misunderstood the
challenged instruction in a manner that violated the defendant’s rights, we must uphold
the court’s charge to the jury. (People v. Houston (2012) 54 Cal.4th 1186, 1229.)
              Here, the court’s response to the subject question about premeditation was
legally correct. It properly directed the jurors to CALCRIM No. 601 and provided
further explanation of that concept in simple and straightforward terms. Had it wanted to,
the court could have ended its response there. Still, there was nothing problematic about
telling the jurors they could also consider any other instructions they felt were applicable.
While appellant fears this invited mischief, we perceive it as nothing more than a
reminder for the jury to consider the instructions as a whole, even though all of them may
not necessarily apply. (See CALCRIM No. 200.) For example, in deciding whether
appellant acted with premeditation, the jurors would probably have wanted to consider
not only CALCRIM No. 601, but also the instructions on the presumption of innocence
and the burden of proof. Yet, they were unlikely to have found anything useful in the



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instructions setting forth the elements for the charge of unlawfully possessing
ammunition.
              The point is, jurors must be given some leeway in determining which
instructions are apt to the facts as they find them to be. There is nothing in the record to
suggest the jurors somehow bungled their responsibility in this regard. Nor is there
anything in the record to support appellant’s assumption the jurors somehow applied the
wrong legal standard in determining whether he was guilty of attempted premeditated
murder. Therefore, there is no reason to disturb the verdict.
                                     Sentencing Issues
              There are, however, two sentencing errors that need correction. As the
Attorney General concedes, the trial court should have stayed appellant’s gun
enhancements under section 12022.5, subdivision (a) on the attempted murder counts
because the more punitive gun enhancement allegations under section 12022.53,
subdivision (c) were found true as to those counts. (§ 12022.53, subd. (f); People v.
Gonzalez (2008) 43 Cal.4th 1118, 1129-1130.) Also, as to the section 186.22,
subdivision (b) gang enhancement attendant to the negligent discharge finding on count
4, the minute order of the sentencing hearing must be corrected to reflect the fact the
court sentenced appellant to a stayed term of 3 years, not 10 years. (See People v. Mesa
(1975) 14 Cal.3d 466, 471 [trial court’s oral pronouncement controls over clerk’s written
order].) We will modify the judgment accordingly.
                                      DISPOSITION
              The clerk of the superior court is directed to modify the abstract of
judgment and the sentencing hearing minute order dated September 13, 2103, to reflect:
1) Pursuant to section 12022.53, subdivision (f), sentence was imposed but stayed on
each of the section 12022.5, subdivision (a) gun enhancements attendant to counts 1
through 3; and 2) Pursuant to section 186.22, subdivision (b), appellant was sentenced to
a three-year stayed enhancement on count 4. The clerk of the superior court is directed to

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prepare an amended abstract of judgment reflecting this modification and send a certified
copy to the Department of Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.




                                                BEDSWORTH, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



THOMPSON, J.




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