People v. Sorto CA4/3

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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