Opinion
G062631
06-21-2024
THE PEOPLE, Plaintiff and Respondent, v. TOMAS ANTONIO SORTO, Defendant and Appellant.
Deanna L. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 11WF1971, Lance P. Jensen, Judge. Affirmed.
Deanna L. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Defendant Tomas Antonio Sorto appeals the denial of his petition for resentencing pursuant to Penal Code section 1172.6. After his appellate attorney filed a no-issue brief under the procedures described in People v. Delgadillo (2022) 14 Cal.5th 216, defendant filed a supplemental brief on his own behalf. However, defendant has failed to show the trial court's denial order was improper in any respect. We thus affirm the order.
That section was formerly housed in Penal Code section 1170.95, but in 2022 it was renumbered without substantive change as Penal Code section 1172.6 (Stats. 2022, ch. 58, § 10.) All further statutory references are to the Penal Code.
PROCEDURAL BACKGROUND
In 2013, defendant was convicted of three counts of attempted premeditated murder and other crimes for shooting at a group of unarmed men who were standing outside a nightclub in Stanton. (§§ 664/187, subd. (a).) The jury also found defendant acted for the benefit of a criminal street gang and personally discharged a firearm. (§§ 186.22, subd. (b), 12022.53, subd. (c).) The trial court sentenced him to 108 years to life in prison, and on appeal we affirmed the judgment in all material respects. (People v. Sorto (Dec. 4, 2014, G049199) [nonpub. opn.].)
On February 24, 2023, defendant filed a petition for resentencing under section 1172.6. Following a response by the People and a hearing at which defendant was represented by appointed counsel, the trial court determined defendant was ineligible for resentencing because his jury was not instructed on any theory of imputed liability. Therefore, it denied his petition for failing to make a prima facie case for relief.
On appeal, appointed counsel filed a brief raising no issues but requesting that we independently review the record pursuant to People v. Delgadillo, supra, 14 Cal.5th 216. Defendant then filed a supplemental brief, as was his right under that decision. (Id. at p. 232.) However, having reviewed defendant's arguments and the record below, we find no reason to disturb the trial court's ruling.
DISCUSSION
Defendant's contentions are all aimed at his underlying trial. In particular, he claims the prosecution relied on improper evidence to prove the gang allegation, he was given an excessive sentence, and there is insufficient evidence to support the jury's finding he acted with the intent to kill. Defendant also broadly asserts that undefined misconduct rendered his trial fundamentally unfair.
However, section 1172.6 was designed to allow defendants to seek the benefit of statutory amendments that narrowed the scope of California's murder laws. (People v. Farfan (2021) 71 Cal.App.5th 942, 947.) The statute "does not afford the petitioner a new opportunity to raise claims of trial error or attack the sufficiency of the evidence supporting the jury's findings." (Ibid.) Therefore, defendant's claims are not cognizable in this appeal. (Ibid.)
Moreover, the trial court's ruling on defendant's petition was indisputably correct. A defendant may be eligible for resentencing for attempted murder if he was convicted on a theory of imputed liability. (§ 1172.6, subd. (a).) But defendant's jury was not instructed on any such theory. Rather, he was tried as the actual perpetrator of the charged offenses. By finding defendant guilty of attempted premeditated murder and personally discharging a firearm, the jury necessarily determined he was convicted based on his own actions and his own malice. Therefore, he is ineligible for resentencing as a matter of law. (People v. Curiel (2023) 15 Cal.5th 433, 470-471; People v. Lewis (2021) 11 Cal.5th 952, 971.)
DISPOSITION
The trial court's order denying defendant's petition for resentencing is affirmed.
WE CONCUR: GOETHALS, J. DELANEY, J.