People v. Sorto

THE PEOPLE, Plaintiff and Respondent, v. JOSE ANTONIO SORTO, JR., Defendant and Appellant.

D076931

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

March 10, 2021

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. SCN385059)

APPEAL from a judgment of the Superior Court of San Diego County, William Y. Wood, Judge. Affirmed as modified.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Jose Antonio Sorto, Jr. gave his roommate Freddy G. a difficult choice: steal an expensive surveillance system or get stabbed. Sorto and his gang associate Angel Coronado drove Freddy to three different stores, but Freddy was too afraid to follow through on the instructions and finally managed to flee from the third store. Sorto later tried to silence Freddy and Coronado through third parties both before and after his arrest. A jury convicted him of multiple felonies, resulting in a lengthy prison term.

On appeal, Sorto argues he received constitutionally ineffective assistance of counsel under McCoy v. Louisiana (2018) 584 U.S. ___ [138 S.Ct. 1500] (McCoy) based on comments made by his trial attorney during closing arguments. We reject this claim, concluding no concession of guilt in fact occurred. Sorto also challenges his attempted extortion conviction (Pen. Code,¹ § 524), claiming in essence that Freddy could not validly consent to hand over property he had yet to steal. Although this presents a more challenging issue of statutory interpretation, we ultimately reject this claim as well, finding it sufficient that Sorto ultimately sought property from Freddy's coerced theft. (See People v. Harper (2020) 44 Cal.App.5th 172, 191 (Harper).) Modifying the judgment to stay his sentence for attempted extortion pursuant to section 654 and correcting a clerical error found in the judgment minute order, we otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Sorto was a member of the Vista Home Boys gang. Coronado, a gang associate, sometimes stayed at Sorto's apartment and worked as a drug runner. Freddy, who was not a gang member, helped Sorto sell methamphetamine in exchange for a place to stay. The three men were frequent methamphetamine users and would use drugs together.

On March 21, 2018, Sorto accused Freddy of stealing drugs from him and sexually assaulting a woman. Although Freddy denied those accusations, Sorto forced him into Sorto's car and offered two options: steal asurveillance system or be stabbed with a knife. Sorto and Coronado drove Freddy to two different electronics stores, but Freddy was too afraid to follow through with the proposed theft. Offered one final chance, Sorto drove to Walmart and made Freddy leave his cell phone behind. Inside the store, Freddy explained his predicament to a store manager and asked him to call 911. When Freddy did not exit the store or return to Sorto's apartment, Sorto and Coronado surmised that he was cooperating with law enforcement. Posting messages to Freddy's social media account, Sorto painted him as a traitor who had taken advantage of women and underage girls.

Two days later, Sorto used Freddy's phone to send a message to one of Freddy's friends, Susana C. Acting as if he were Freddy, Sorto suggested a play date with Susana's children outside a fast food restaurant. After Susana arrived and parked in a stall, a vehicle boxed her in from behind. Leaning on Susana's car, Sorto asked her if she had seen Freddy. He eventually left, allowing her to leave.

Deputies searched Sorto's apartment on April 4 and discovered around 18 grams of methamphetamine, a digital scale, and several pipes. Stored on Sorto's cell phone were photos and video suggesting drug transactions.

After his arrest in early May, Sorto tried to pressure Freddy from jail through third parties to drop the charges. In mid-May, he tried multiple times through intermediaries to forcibly pressure Coronado (who had also been arrested) to stop cooperating with law enforcement.

The San Diego County District Attorney charged Sorto by information with a panoply of offenses: kidnapping for extortion of Freddy (§ 209, subd. (a), count 1); simple kidnapping of Freddy (§ 207, subd. (a), count 2); second degree robbery of Freddy's cell phone (§ 211, count 3); making a criminal threat against Freddy (§ 422, count 4); attempted extortion of Freddy (§ 524,count 5); false imprisonment by menace of Susana (§§ 236, 237, subd. (a), count 6); possessing a controlled substance for sale (Health & Saf. Code, § 11378, count 7); attempting to dissuade a witness (Freddy) (Pen. Code, § 136.1, subd. (a)(2), count 9); and attempting to dissuade a witness (Coronado) by means of force or threat (§ 136.1, subds. (a)(2) & (c)(1), count 10).² A deadly weapon use allegation was added to all counts except 6 and 10. (§ 12022, subd. (b)(1).) In addition, as to all counts except count 8, a criminal street gang enhancement was pled. (§ 186.22, subd. (b)(1).) Finally, Sorto was alleged to have one prior serious felony conviction constituting a strike (§ 667, subds. (a) & (b)-(i)), and two prior prison terms (§ 667.5, subd. (b)).

In March 2019, the jury acquitted Sorto on count 3 and found the gang allegation accompanying count 6 "not true." It was unable to reach a verdict on the kidnapping charges (counts 1 & 2) and on the gang allegation accompanying count 9. But it convicted Sorto as charged on counts 4, 5, 6, 7, 9, and 10 and found the attendant allegations (with the exception of the already referenced gang allegations on counts 6 and 9) true. In a bifurcated priors trial, the court found the prior strike allegation to be true. It then granted the prosecution's request to dismiss the two kidnapping counts on which the jury hung.

At sentencing, the court denied Sorto's motion to strike the prior strike conviction (§ 1385, subd. (a); People v. Superior Court (Romero) (1996) 13 Cal.4th 497) and imposed a total term of 19 years and 4 months, plus 14 years to life in state prison.

DISCUSSION

Sorto attacks his convictions on count 6 (false imprisonment of Susana) and count 10 (forcibly dissuading Coronado from testifying), contending that a Sixth Amendment violation occurred when his counsel conceded guilt during closing arguments. He challenges his conviction on count 5 on a different basis, arguing a surveillance system that Freddy had yet to steal could not be the subject of attempted extortion. We address each of these arguments in turn, rejecting both.

Sorto raises two additional contentions with respect to his sentencing. As to the first, we agree that section 654 precludes separately punishing Sorto for both making a criminal threat (§ 422, count 4) and an attempted extortion based on the same threat (§ 524, count 5). We likewise accept Sorto's request to correct a clerical error in the sentencing minutes.

1. McCoy Error (Counts 6 and 10)

Prior to sentencing Sorto's counsel moved for a new trial. Citing a decision issued by this court after closing argument (People v. Flores (2019) 34 Cal.App.5th 270 (Flores)), he expressed concern that he had conceded elements of counts 6 and 10 in violation of McCoy, supra, 138 S.Ct. 1500 without advising Sorto in advance or obtaining his consent. Finding that a conflict had emerged between defense counsel and his client, the court appointed substitute counsel. Sorto then submitted a declaration denying prior awareness or giving prior consent to a concession strategy. The trial court heard arguments but denied the motion, expressing skepticism as to whether McCoy applied where Sorto never objected during trial to his counsel's closing remarks or filed a Marsden motion. Even if McCoy applied, the court did not believe defense counsel actually conceded guilt on counts 6 or 10 during his closing argument.

Reprising his new trial arguments, Sorto contends his convictions on counts 6 and 10 must be reversed because his counsel impermissibly conceded guilt on those charges during closing remarks. The People disagree. Consistent with the trial court's ruling denying Sorto's new trial motion, they suggest Sorto cannot assert this claim when he failed to object until after trial. Moreover, they argue counsel did not actually concede guilt on those counts. We accept the latter point, avoiding the need to reach the former. Reading his entire closing argument in context, defense counsel did not actually concede guilt on either count, meaning that McCoy is not implicated.

A criminal defendant has a Sixth Amendment right to the assistance of counsel; the term assistance conveys that the accused is the master of his or her defense. (Flores, supra, 34 Cal.App.5th at p. 276; McCoy, supra, 138 S.Ct. at p. 1505.) While trial management decisions (such as whether to object to certain evidence) are left to counsel, "[u]nder McCoy, defense lawyers must allow their clients to dictate the fundamental objective at trial, and must not concede the actus reus of a charged crime over a client's objection." (Flores, at p. 277, citing McCoy, at p. 1508.) "Presented with express statements of the client's will to maintain innocence, . . . counsel may not steer the ship the other way." (McCoy, at p. 1509.) At the same time, "[i]f a client declines to participate in his defense, then an attorney may permissibly guide the defense pursuant to the strategy she believes to be in the defendant's best interest." (Ibid., citing Florida v. Nixon (2004) 543 U.S. 175,...