People v. Sorto CA2/6

Filed 7/15/14 P. v. Sorto CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B245512 (Super. Ct. No. MA0566397-01) Plaintiff and Respondent, (Los Angeles County)

v.

ROGER SORTO,

Defendant and Appellant.

Roger Sorto appeals a judgment following conviction of misdemeanor interference with a peace officer (two counts) and misdemeanor assault on a peace officer. (Pen. Code, §§ 148, subd. (a)(1), 241, subd. (c).)1 We modify the judgment to award Sorto an additional 54 days of presentence custody credit, and otherwise affirm. FACTUAL AND PROCEDURAL HISTORY On May 31, 2012, Los Angeles County Sheriff's Deputies Curtis Foster and Erik Jepson were patrolling near Sierra Highway and Avenue J in Lancaster. They saw Sorto ride a bicycle westbound in an eastbound traffic lane, and ordered him to stop in a nearby parking lot. Sorto complied and stopped his bicycle. Foster parked the patrol vehicle and approached Sorto, who stated, "Fuck you. You're only stopping me because I'm Black." Sorto appeared agitated and reached toward a backpack that was strapped to

1 All further statutory references are to the Penal Code unless otherwise stated.

the frame of his bicycle. Foster ordered him to place his hands on the bicycle handlebars. Sorto ignored the order and cursed the deputies. Foster then grabbed Sorto's arms to control him. Sorto shouted "[D]on't fucking touch me." Sorto pulled his left hand free and Foster pulled him from the bicycle onto the ground. As Sorto wrestled with Foster, Jepson grabbed Sorto's legs and right hand. When Sorto tugged on Foster's firearm holster, Foster struck Sorto in the head. Eventually, the deputies subdued Sorto and placed him in handcuffs. Anthony Martinez was inside a nearby business when he saw Sorto scuffle with the deputies following the bicycle stop. Martinez described the incident as "a routine stop," with the deputies speaking "normally" to Sorto. Sorto was "cussing and screaming" and resisting the deputies. While Sorto and Foster were on the ground, Martinez saw Sorto hit Foster and Foster hit Sorto in response. Following Sorto's arrest, a deputy found a container of pepper spray in Sorto's backpack. During a custodial interview, Sorto admitted that he attempted to reach into his backpack to obtain the pepper spray. The jury convicted Sorto of two counts of misdemeanor interference with a police officer and one count of misdemeanor assault on a peace officer. (§§ 148, subd. (a)(1), 241, subd. (c).) The trial court suspended imposition of sentence and granted Sorto 36 months of summary probation regarding count 1, stayed imposition of sentence regarding count 2 pursuant to section 654, and sentenced Sorto to 214 days of confinement in county jail regarding count 3. The court imposed a $120 restitution fine, a $120 probation revocation restitution fine (stayed), an $80 court security assessment, and a $60 criminal conviction assessment, and awarded Sorto 214 days of presentence custody credit. (§§ 1202.4, subd. (b), 1202.44, 1465.8, subd. (a)(1); Gov. Code, § 70373.) Sorto appeals and contends that: 1) the trial court may have improperly withheld confidential personnel records produced in response to his motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537; 2) the trial court violated his constitutional right to confront witnesses by restricting cross-examination; 3) the