P. v. Soto CA2/8

Filed 4/16/13 P. v. Soto CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B242666

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA072351) v.

JERSON A. SOTO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Daniel B. Feldstern, Judge. Affirmed.

Jonathan P. Fly, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

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At around 8:20 a.m. on June 8, 2011, F.M. and his teenage daughter were walking along Glenoaks Boulevard in San Fernando when two Hispanic teenage boys approached and asked F.M. where he was from. F.M. was not a gang member, but he knew this question was asked to determine what gang he belonged to. F.M. replied, “I don’t bang, I’m not from nowhere.” The two youths then said, “Fuck San Fer. Pacoima Flats.” A third youth, 17-year-old Jerson A. Soto, came out from behind a nearby bush. Soto stopped about two feet away from F.M., pointed a handgun at him and said, “Fuck San Fer. Pacoima Flats. I’ll kill you.” F.M. froze, then moved his daughter behind him. The three youths then walked off and F.M. used his mobile phone to call 911 and report the incident. Several San Fernando police officers responded to the call and within minutes located the three youths. Officer Paul Ventimiglia spotted Soto walking along a street with a gun in his hand. Soto ran and tried to throw the gun away, but it bounced off a nearby wall back into his hand. Ventimiglia then saw Soto toss the gun over that wall. Another officer recovered the gun, which was a Browning .22-caliber semiautomatic with one live round in the chamber and six live rounds in the magazine. Soto was arrested and taken to the police station. Officer Ventimiglia read Soto his Miranda1 rights, and Soto said he understood them. Ventimiglia then interviewed Soto, who admitted approaching F.M. with the gun. According to Soto, he saw his two companions arguing with F.M. and approached F.M. to provide backup in case they needed it. Soto said he did not pull out the gun and point it at F.M., but instead simply showed F.M. the gun, which was tucked inside the waistband of Soto’s boxer shorts. Soto claimed he told F.M., “If you got a problem with my home boys, I’ll blast you.” Soto admitted that he was a member of the Pacoima Flats gang. Soto was charged in an amended information with three counts: assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)); possession by a minor of a