P. v. Aniceto























Filed 3/22/13 P. v. Aniceto CA3

















NOT TO BE PUBLISHED







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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(San
Joaquin)




>

THE PEOPLE, Plaintiff and Respondent, v. ISMAEL ROSALES ANICETO, Defendant and Appellant.

C069293 (Super. Ct. No. SF115216A)

name="_BA_ScanRange">A jury found defendant Ismael Rosales Aniceto guilty of href="http://www.mcmillanlaw.com/">attempted
premeditated murder ( ADDIN BA xc <@ost> xl 9 s
DSIEYH000017 xpl 1 l "Pen. Code" Pen. Code,href="#_ftn1" name="_ftnref1" title="">[1] ADDIN
BA xc <@osdv> xl 23 s DSIEYH000020 l "§§ 664 & 187, subd.
(a)" §§ 664,
187, subd. (a); count 1);
permitting another to shoot from a vehicle (former ADDIN
BA xc <@osdv> xl 18 s DSIEYH000021 xpl 1 l "§ 12034, subd.
(b)" §
12034, subd. (b); count 2);
street
terrorism ( ADDIN BA xc <@osdv> xl 19 s
DSIEYH000022 xpl 1 l "§ 186.22, subd. (a)" §
186.22, subd. (a);
count 3); and assault with a firearm
(
ADDIN BA xc <@osdv> xl 19 s DSIEYH000023 xpl 1 l "§ 245, subd.
(a)(2)" §
245, subd. (a)(2); count
4). The jury also found true allegations
defendant committed counts 1, 2, and 4 for the benefit of a criminal street
gang (
ADDIN BA xc <@osdv> xl 22 s DSIEYH000024 xpl 1 l "§ 186.22,
subd. (b)(1)" §
186.22, subd. (b)(1)), a
principal intentionally and personally discharged a firearm in the commission
of count 1 (
ADDIN BA xc <@osdv> xl 28 s DSIEYH000025 xpl 1 l "§ 12022.53,
subds. (c) & (e)" §
12022.53, subds. (c) & (e)),
and defendant personally used a firearm in the commission of count 4 ( ADDIN BA xc <@osdv> xl 20 s
DSIEYH000026 xpl 1 l "§ 12022.5, subd. (a)" §
12022.5, subd. (a)).

The trial court sentenced defendant
to an aggregate term of 44 years to life in state prison, consisting of: 7 years to life for the attempted murder
(count 1), plus an additional 20 years under ADDIN
BA xc <@osdv> xl 33 s DSIEYH000027 l "section 12022.53,
subdivision (c)" section 12022.53,
subdivision (c); and a consecutive 3 years (the middle term) for the
assault (count 4), plus an additional 4 years under ADDIN
BA xc <@osdv> xl 32 s DSIEYH000028 l "section 12022.5,
subdivision (a)" section 12022.5,
subdivision (a), and an additional 10 years under ADDIN
BA xc <@osdv> xl 37 s DSIEYH000029 l "section 186.22,
subdivision (b)(1)(C)" section 186.22,
subdivision (b)(1)(C). The
trial court stayed defendant’s sentence on counts 2 and 3 pursuant to ADDIN
BA xc <@osdv> xl 11 s DSIEYH000030 l "section 654" section 654. It also declined to impose the enhancement
for participation in a criminal street gang appended to count 1 pursuant to ADDIN
BA xc <@osdv> xl 36 s DSIEYH000031 l "section 12022.53,
subdivision (e)(2)" section 12022.53,
subdivision (e)(2).

Defendant appeals, contending the
trial court erred when it: (1) failed to
suppress statements he made during a booking interview because the correctional
officer conducting the interview did not give him ADDIN
BA xc <@$cs> xl 7 s DSIEYH000001 Mirandahref="#_ftn2" name="_ftnref2" title="">[2] warnings;
(2) instructed the jury on the natural and probable consequences doctrine in
connection with the attempted murder charge where there was no evidence to
support it; and (3) imposed additional punishment for defendant’s firearm use
under both ADDIN BA xc <@osdv> xl 75 s
DSIEYH000032 l "sections 12022.5, subdivision (a) and section 186.22,
subdivision (b)(1)(C)" sections 12022.5,
subdivision (a), and section 186.22, subdivision (b)(1)(C). Defendant also asserts there is insufficient
evidence to support a finding that the attempted murder was a natural and
probable consequence of the target offense (assault), and therefore, his
conviction for attempted murder must be reversed on that basis as well.

We shall conclude that the trial
court improperly imposed enhancements for both personal firearm use ( ADDIN BA xc <@$osdv> xl 20 s
DSIEYH000026 xpl 1 § 12022.5, subd. (a)) and committing
a violent felony to benefit a criminal
street gang
(
ADDIN BA xc <@osdv> xl 25 s DSIEYH000033 xpl 2 l "§ 186.22,
subd. (b)(1)(C)" §
186.22, subd. (b)(1)(C)) on count 4, reverse
defendant’s sentence on that count, and remand the matter for
resentencing. We shall affirm the
judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

On the afternoon of March
18, 2009, Angelo
Villanueva and his brother, both members of the Norteño
criminal street gang, visited Villanueva’s girlfriend at the Farmington
Apartments, known Sureño turf, in Stockton.
While Villanueva and his girlfriend were standing outside her apartment,
defendant and Samuel Paniagua, a member of the Sureño
criminal street gang, approached them.
Defendant pulled out a gun, pointed it at Villanueva’s chest, and asked,
“[W]hy are you so scared?” Paniagua
stood behind defendant; he did not say anything. Villanueva had a run-in with Paniagua a few
weeks earlier.

Villanueva’s girlfriend told
Villanueva and his brother to “get in” her apartment, but instead, they got on
their bicycles and left. Defendant and
Paniagua immediately got into a white van and followed them. Defendant drove the van, and Paniagua was his
passenger. Paniagua fired four or five
shots at Villanueva and his brother out of the passenger side window of the
van. Villanueva and his brother fell to
the ground, and defendant and Paniagua drove off. The van maintained its speed as the shots
were being fired. Neither Villanueva nor
his brother was shot.

A detective in the Stockton Police
Department’s Gang Suppression Unit and an expert in Hispanic criminal street
gangs in Stockton described the “violent” rivalry between the Norteño and
Sureño criminal street gangs and Hispanic gang culture. Gang members thrive off the respect of other
gang members and must retaliate when “disrespected” by a member of a rival gang
to maintain their status within the gang.
It is disrespectful for a rival gang member to wear his gang’s color into
a neighborhood dominated by a rival gang.

Gang members display their gang
affiliation through their clothing, tattoos, and verbiage. Sureños are associated with the color blue,
while Norteños are associated with the color red. Sureños tend to dress conservatively in earth
tones and have shaved heads or very short hair.
Norteños typically dress more flamboyantly and have longer hair.

There are separate sub-sets within
the Sureño criminal street gang, including the Vicky’s Town (VST) and Playboy
Sureños (PBS).

Villanueva often wore his red rosary
necklace on the outside of his clothes when he visited his girlfriend even
though he was aware that Sureños lived in her apartment complex, and he was
wearing it on the day in question. The
gang expert opined that Villanueva purposefully disrespected the Sureños living
in the Farmington Apartments by wearing his red rosary, and that defendant and
Paniagua were compelled to respond. The
expert described the confrontation as a “hit up.” According to the expert, a “hit up” occurs
when a gang member confronts a rival gang member and typically involves
brandishing a weapon and an exchange of words.
Fellow gang members serve as witnesses and backup for one another. Villanueva’s girlfriend also believed the confrontation
was due to Villanueva’s membership in the Norteño
criminal street gang.

On June 29, 2010, defendant was
interviewed at the San Joaquin County Jail by Stockton Police Officer Jeffrey
Tacazon, with the aid of a Spanish-speaking interpreter. Prior to interviewing defendant about the
crime, Tacazon read defendant his ADDIN
BA xc <@$cs> xl 7 s DSIEYH000001 Miranda
rights, and defendant indicated that he understood each of the rights and
stated he was willing to speak to Tacazon.

On June 30, 2010, Deputy Kristy
Mays, a correctional officer at the San Joaquin County Jail, conducted a
booking interview of defendant during which defendant stated that he was a
Sureño, and that he had enemies who were Norteños.

On February 10, 2011, a correctional
officer at the San Joaquin County Jail found a roster inside an inmate’s cell
that listed Sureño gang members who were housed in a certain section of the
jail. The roster contained the names of
gang members along with their cell numbers, booking numbers, nicknames, “hood”
or gang sub-sets, and the charges pending against them. Defendant was listed on the roster as having
the moniker “Griyo” and belonging to “LVT.”
The gang expert was not familiar with “LVT” but acknowledged there could
be active sub-sets of which he was not presently aware.

The gang expert opined that
defendant was an active member of the Sureño criminal street gang based on the
following: he associated with Paniagua,
a documented Sureño gang member; he was involved in a gang-related incident;
and he admitted being an active member of the Sureño criminal street gang
during his booking interview. The expert
stated that defendant’s inclusion in the roster confirmed his opinion that
defendant was a Sureño gang member.

DISCUSSION

I

The Trial Court Did Not Err in Admitting
Evidence Defendant Claimed a Gang During His Booking Interview

Defendant first contends that the
“[i]ntroduction of evidence that [he] claimed a gang during the booking
interview violated [his] constitutional rights against href="http://www.mcmillanlaw.com/">self-incrimination
and to due process of law.”

Prior to trial, defendant moved to
exclude statements he made during a booking (or jail classification) interview,
arguing his statements were taken in violation of ADDIN
BA xc <@$cs> xl 7 s DSIEYH000001 Miranda. The trial court held an href="http://www.mcmillanlaw.com/">evidentiary
hearing ( ADDIN BA xc <@st> xl 17 s
DSIEYH000002 xpl 1 l "Evid. Code, § 402" Evid. Code, § 402) at which Deputy
Mays, the correctional officer who conducted the interview, testified. Mays interviewed defendant on June 30,
2010. At the time, she was working
“classification” at the jail. Each
inmate who is going to remain in custody at the jail goes through the same
booking interview process, during which the inmate is asked, among other
things, “if they have any affiliation with gangs in order to determine if they
have enemies in jail . . . .”
The sole purpose of the gang-related questions is to determine appropriate
housing for each inmate. During the
booking interview at issue here, Mays asked defendant if he claimed any gang
affiliation, and he responded, “yes.”
She then asked him if he claimed Sureño, and he said, “yes.” To be sure, she asked him if he had enemies
that were Norteño gang members, and he said, “yes.” The interview was conducted in a holding cell
in the San Joaquin County Jail’s main lobby.
Mays explained that there is a “general lobby where the masses sit and
then special holding cells for others that need protection.” Knowing an inmate’s gang affiliation is
especially important in the case of Sureño gang members because the San Joaquin
County Jail is a “highly populated Norteño jail and it would not be in a
Sureño's best interest to put him in a lobby filled with a lot of Norteños that
may be in [the jail’s] custody off the street.”

The trial court ruled the evidence
was admissible, finding that the gang-related questions were not designed to
elicit an incriminating response but were asked for the purpose of ensuring the
safety of defendant and others in the jail.

ADDIN
BA xc <@$cs> xl 7 s DSIEYH000001 Miranda
admonitions must be given and an individual in custody must knowingly and
intelligently waive those rights before being subjected to either express
questioning or its “functional equivalent.”
(
ADDIN BA xc <@cs> xl 76 s DSIEYH000003 xhfl Rep xpl 1 l ">Rhode Island v. Innis
(1980)446 U.S. 291, 300-301 [64 L.Ed.2d 297, 307-308]" Rhode Island v. Innis (1980) 446 U.S. 291, 300-301 [64 L.Ed.2d
297, 307-308]; ADDIN
BA xc <@cs> xl 40 s DSIEYH000004 xhfl Rep xpl 1 l ">People v. Ray (1996)13
Cal.4th 313, 336" People v. Ray (1996) 13 Cal.4th 313, 336.) Unwarned statements made during a custodial
interrogation, even if otherwise voluntary within the meaning of the federal ADDIN
BA xc <@con> xl 15 s DSIEYH000034 l "Fifth Amendment" Fifth Amendment,
generally must be excluded from evidence at trial. ( ADDIN BA xc <@cs> xl 63 s
DSIEYH000005 xhfl Rep xpl 1 l "Oregon
v. Elstad (1985)470 U.S. 298, 307 [84 L.Ed.2d 222, 231]"
Oregon v. Elstad (1985) 470 U.S. 298, 307 [84 L.Ed.2d 222, 231];
ADDIN BA xc <@cs> xl 47 s
DSIEYH000006 xhfl Rep xpl 1 l "People
v. Bradford (1997)14 Cal.4th 1005, 1033" People v. Bradford (1997) 14 Cal.4th 1005, 1033.)

Not all conversation between a
police officer and a suspect constitutes interrogation under ADDIN
BA xc <@$cs> xl 7 s DSIEYH000001 Miranda. ( ADDIN BA xc <@$cs> xl 42 s
DSIEYH000004 xhfl Rep xpl 1 People v. Ray, >supra, 13 Cal.4th at p. 338.) Ordinarily, the routine gathering of
background information on a suspect such as in a booking process will not
constitute an interrogation. (See ADDIN
BA xc <@cs> xl 47 s DSIEYH000007 xhfl Rep xpl 1 l ">People v. Gomez (2011)192
Cal.App.4th 609, 630" People v. Gomez (2011) 192 Cal.App.4th 609, 630.) On the other hand, comments that go beyond
preliminary identification inquiries and are designed to elicit an
incriminating response are within the scope of ADDIN
BA xc <@$cs> xl 7 s DSIEYH000001 Miranda. (See ADDIN
BA xc <@$id> xl 18 s ID xhfl Rep xpl 1 People
v. Gomez, supra, at pp. 629-630.)

Whether the questions concerning
defendant’s gang affiliation were designed to elicit an incriminating response
presents an interesting issue where, as here, Deputy Mays was aware of the
charges pending against defendant, gang detectives have access to gang
classification information, and such information is routinely included in
reports prepared by gang detectives; however, we need not consider that issue
here because even assuming the booking interview constituted an interrogation,
defendant was advised of and knowingly waived his ADDIN
BA xc <@$cs> xl 7 s DSIEYH000001 Miranda
rights prior thereto.

As previously mentioned, on June 29,
2010, defendant was interviewed at the San Joaquin County Jail by Officer
Tacazon. Prior to interviewing defendant
about the crime, Tacazon read defendant his ADDIN
BA xc <@$cs> xl 7 s DSIEYH000001 Miranda
rights, and defendant indicated that he understood each of the rights, and
that he was willing to speak to Tacazon.
While there is no indication in the record that defendant was readvised
of his ADDIN BA xc <@$cs> xl 7 s DSIEYH000001
Miranda
rights prior to the booking interview, “ ‘readvisement is unnecessary
where the subsequent interrogation is “reasonably contemporaneous” with the
prior knowing and intelligent waiver.
[Citations.] The courts examine
the totality of the circumstances, including the amount of time that has passed
since the waiver, any change in the identity of the interrogator or the
location of the interview, any official reminder of the prior advisement, the
suspect’s sophistication or past experience with law enforcement, and any
indicia that he subjectively understands and waives his rights. [Citations.]’ ” ( ADDIN BA xc <@cs> xl 42 s
DSIEYH000008 xhfl Rep xpl 1 l "People
v. Lewis (2001)26 Cal.4th 334, 386" People v. Lewis (2001) 26 Cal.4th 334, 386, quoting ADDIN
BA xc <@cs> xl 42 s DSIEYH000009 xhfl Rep xqt xpl 1 l ">People v. Mickle (1991)54
Cal.3d 140, 170" People v. Mickle (1991) 54 Cal.3d 140, 170.) In ADDIN
BA xc <@$cs> xl 46 s DSIEYH000009 xhfl Rep People
v. Mickle, supra, 54 Cal.3d at
page 171, our Supreme Court held that readvisement was not required after a
lapse of 36 hours between interrogations.
The court considered the totality of the circumstances, including the
fact that the defendant was still in custody, was interviewed by the same
interrogators, was reminded of his prior waiver, and was familiar with the
justice system. ( ADDIN BA xc <@$id> xl 5 s ID xpl
1 Ibid.)

In this case, the booking interview
occurred the day after defendant was interviewed by Officer Tacazon. Thus, the ADDIN
BA xc <@$cs> xl 7 s DSIEYH000001 Miranda
warnings would have been fresh in defendant’s mind. Defendant remained in custody at the San
Joaquin County Jail during the interim.
While the identity of the interviewer changed, both interviews were
conducted at the same location -- the San Joaquin County Jail. Moreover, the record indicates defendant
subjectively understood his right to remain silent. He was fully admonished of his rights the
previous day and had voluntarily waived them, and there is no indication in the
record suggesting that defendant was mentally impaired or otherwise incapable
of remembering the prior advisement.

Defendant correctly observes that in
ADDIN BA xc <@$cs> xl 46 s
DSIEYH000009 xhfl Rep People v. Mickle, supra,
54 Cal.3d at page 171, the court noted, as factors in the analysis,
the defendant was interviewed by the same investigators and was readvised of
his ADDIN BA xc <@$cs> xl 7 s
DSIEYH000001 Miranda
rights, factors not shown to exist here.
Considering “the totality of the circumstances” ( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 People
v. Mickle, supra, at p. 170), however, we do not agree the absence of these
factors alone undermine our finding that defendant participated in the booking
interview voluntarily and with knowledge of his rights. That not all of the factors listed in ADDIN
BA xc <@$cs> xl 6 s DSIEYH000009 Mickle
were satisfied does not show that a second advisement was necessary. The factors are not a list of requirements
that must all be satisfied. (See ADDIN
BA xc <@cs> xl 45 s DSIEYH000010 xhfl Rep xpl 1 l ">People v. Williams (1997)16
Cal.4th 635, 661" People v. Williams (1997) 16 Cal.4th 635, 661 [“no single
factor is dispositive in determining voluntariness, but rather courts consider
the totality of circumstances”].)
Rather, the point of the factors is to assist in the determination of
whether the advisement is “ ‘reasonably contemporaneous’ ” with the
second interrogation and whether, at the time of the second interrogation, the
defendant is still in the condition of having subjectively understood and
waived his rights in light of the totality of the circumstances. ( ADDIN BA xc <@$cs> xl 49 s
DSIEYH000009 xhfl Rep xpl 1 People v. Mickle, >supra, 54 Cal.3d at pp. 170-171.)

To the extent defendant argues that
his statement was involuntary because if he had chosen to remain silent he
would have been housed with rival gang members who could harm him, this
argument also lacks merit.

“ ‘ “Once a suspect has
been properly advised of his [or her] rights, he [or she] may be questioned
freely so long as the questioner does not threaten harm or falsely promise benefits. . . . [I]n carrying out their interrogations the
police must avoid threats of punishment for the suspect’s failure to admit or
confess particular facts and must avoid false promises of leniency as a reward
for admission or confession. . . .” [Citation.]’
[Citation.]” ( ADDIN BA xc <@cs> xl 47 s
DSIEYH000011 xhfl Rep xpl 2 l "People
v. Carrington (2009)47 Cal.4th 145, 170" People v. Carrington (2009) 47 Cal.4th 145, 170.)

Here, there is no indication in the
record that Deputy Mays threatened defendant or made any false promises of
leniency. That exercising one’s right to
remain silent will have adverse consequences for the defendant does not make
the defendant’s statements involuntary.
“The compulsion [to speak] must be attributable to the state.” ( ADDIN BA xc <@cs> xl 42 s
DSIEYH000012 xhfl Rep xpl 1 l "People
v. Mickey (1991)54 Cal.3d 612, 650" People v. Mickey (1991) 54 Cal.3d 612, 650.) Here, any compulsion was attributable to
defendant and not the state. In any
event, defendant was not compelled to admit he was in a gang. He could have responded, as he does in his
reply brief, that he “wanted to be housed with Sureños, because he hung out
with Sureños at his apartment complex, and if Norteños learned of his
friendship with Sureños he would be in danger.”

The trial court properly admitted
defendant’s statements that he was a Sureño with Norteño
enemies.

II

Defendant’s Conviction for Attempted Murder
Is Properly Sustained Under a Simple Aiding and Abetting Theory

At trial, the prosecutor argued
defendant was guilty of attempted murder based on two theories: (1) defendant aided and abetted Paniagua in
the attempted murder; and (2) defendant aided and abetted the earlier assault
and a natural and probable consequence of that offense was the attempted
murder. Defendant contends his
conviction for attempted murder must be reversed because “the natural and
probable consequence theory . . . is inapplicable because there is no
evidence showing that Paniagua participated in the target offense of assault,”
and there is insufficient evidence to support a finding that the attempted
murder was the natural and probable consequence of the earlier assault. As we shall explain, we need not address
defendant’s contentions related to the natural and probable consequences
doctrine because the alternative theory advanced by the prosecution -- that
defendant aided and abetted in the attempted murder itself -- is supported by
substantial evidence, and there is no indication in the record that the jury
based its verdict on the natural and probable consequences doctrine. (See ADDIN
BA xc <@cs> xl 44 s DSIEYH000013 xhfl Rep xpl 1 l ">People v. Guiton (1992)4
Cal.4th 1116, 1129" People v. Guiton (1992) 4 Cal.4th 1116, 1129 ( ADDIN BA xc <@$cs> xl 6 s
DSIEYH000013 xpl 2 Guiton).)

In ADDIN
BA xc <@$cs> xl 6 s DSIEYH000013 Guiton,
our Supreme Court explained that where, as here, “the inadequacy of proof is
purely factual, of a kind the jury is fully equipped to detect, reversal is not
required whenever a valid ground for the verdict remains, absent an affirmative
indication in the record that the verdict actually did rest on the inadequate
ground.” ( ADDIN BA xc <@$cs> xl 35 s
DSIEYH000013 xhfl Rep xpl 1 Guiton,
supra, 4 Cal.4th at p. 1129.)

The evidence is overwhelming that
defendant aided and abetted in the attempted murder. To be liable as an aider and abettor, a
defendant “must act ‘with knowledge of the criminal purpose of the perpetrator >and with an intent or purpose either of
committing, or of encouraging or facilitating commission of, the
offense.’ ” ( ADDIN BA xc <@cs> xl 46 s
DSIEYH000014 xhfl Rep xpl 1 l "People
v. Houston (2012)54 Cal.4th 1186, 1224" People v. Houston (2012) 54 Cal.4th 1186, 1224, quoting ADDIN
BA xc <@cs> xl 42 s DSIEYH000015 xhfl Rep xqt xpl 1 l ">People v. Beeman (1984)35
Cal.3d 547, 560" People v. Beeman (1984) 35 Cal.3d 547, 560.) Here, defendant and Paniagua followed
defendant and his brother in a van.
Defendant, who was driving, pulled alongside Villanueva and his brother,
and Paniagua fired at them. The van
maintained its speed as the shots were being fired. On this record, we have no trouble concluding
that a jury reasonably could conclude that defendant knew that Paniagua
intended to shoot at Villanueva and his brother, and that defendant facilitated
the commission of the attempted murder by driving the van and positioning it so
that Paniagua could shoot at the two men.

Moreover, having reviewed the
record, we find no basis to conclude that the jury based its verdict on the
natural and probable consequences doctrine.
Although the prosecutor argued to the jury that the attempted murder was
a natural and probable consequence of the earlier assault, he also argued
defendant aided and abetted in the attempted murder itself. “[H]ow do you aid and abet? You make it possible. Could Samuel Paniagua have shot from a moving
vehicle without a driver holding this particular car steady? No. . . . That’s why, in drive-by shootings, the
drivers and the shooters are equally responsible; you cannot have one without
the other.” Contrary to defendant’s
suggestion, the prosecutor distinguished between the two alternative theories
and did not spend significantly more time on the natural and probable
consequences doctrine.

Accordingly, defendant’s conviction
for attempted murder is properly affirmed under a simple aiding and abetting
theory of liability.

III

The Trial Court Erred in Imposing Additional
Punishment for Defendant’s Firearm Use Under Both ADDIN
BA xc <@$osdv> xl 74 s DSIEYH000032 Section 12022.5,
Subdivision (a) and Section 186.22, Subdivision (b)(1)(C).

Defendant contends, and the People
agree, that the trial court’s imposition of both the 4-year term for the
firearm use enhancement ( ADDIN BA xc <@$osdv> xl 20 s
DSIEYH000026 xpl 1 § 12022.5, subd. (a)), and the 10-year term
for the gang enhancement ( ADDIN BA xc <@$osdv> xl 25 s
DSIEYH000033 xpl 1 § 186.22, subd.
(b)(1)(C)) on count 4 violated ADDIN
BA xc <@osdv> xl 31 s DSIEYH000035 l "section 1170.1,
subdivision (f)" section 1170.1,
subdivision (f). They are correct.

Pursuant to ADDIN
BA xc <@$osdv> xl 31 s DSIEYH000035 section 1170.1, subdivision (f), “[w]hen two
or more enhancements may be imposed for being armed with or using a dangerous
or deadly weapon or a firearm in the commission of a single offense, only the
greatest of those enhancements shall be imposed . . . .” ADDIN
BA xc <@$osdv> xl 32 s DSIEYH000028 Section 12022.5,
subdivision (a), states in pertinent part: “. . . any person who personally
uses a firearm in the commission of a felony . . . shall be punished by an
additional and consecutive term of imprisonment in the state prison for 3, 4,
or 10 years . . . .”href="#_ftn3" name="_ftnref3" title="">[3] ADDIN
BA xc <@osdv> xl 34 s DSIEYH000038 l "Section 186.22,
subdivision (b)(1)" Section 186.22,
subdivision (b)(1) “calls for additional punishment when a crime is
committed to benefit a criminal street gang, with increasingly harsh levels of
punishment: Subdivision (b)(1)(A) of ADDIN
BA xc <@osdv> xl 14 s DSIEYH000039 l "section 186.22" section 186.22
provides for additional punishment of two, three, or four years’ imprisonment
for most felonies. Under subdivision (b)(1)(B),
the additional punishment is increased to five years for ‘serious’ felonies,
which are defined in ADDIN
BA xc <@osdv> xl 32 s DSIEYH000040 l "section 1192.7’s
subdivision (c)" section 1192.7’s
subdivision (c). And under ADDIN
BA xc <@$osdv> xl 37 s DSIEYH000029 section 186.22,
subdivision (b)(1)(C) (the provision at issue here), the additional
punishment is increased to 10 years for ‘violent’ felonies ‘as defined in
subdivision (c) of ADDIN
BA xc <@osdv> xl 13 s DSIEYH000041 l "Section 667.5" Section 667.5.’ Here, [the count] of assault with a firearm ( ADDIN BA xc <@$osdv> xl 19 s
DSIEYH000023 xpl 1 § 245, subd. (a)(2)) qualified as a
‘violent’ felony under ADDIN
BA xc <@osdv> xl 30 s DSIEYH000042 l "section 667.5, subdivision
(c)" section 667.5,
subdivision (c), because in committing [that offense] defendant “use[d] a
firearm which use has been charged and proved” under ADDIN
BA xc <@osdv> xl 15 s DSIEYH000043 l "section 12022.5" section 12022.5. ( ADDIN BA xc <@osdv> xl 21 s
DSIEYH000044 xpl 1 l "§ 667.5, subd. (c)(8)" § 667.5, subd. (c)(8).)” ( ADDIN BA xc <@$cs> xl 38 s
DSIEYH000016 xhfl Rep xpl 1 Rodriguez,
supra, 47 Cal.4th at p. 505.)

In ADDIN
BA xc <@$cs> xl 40 s DSIEYH000016 xhfl Rep Rodriguez,
supra, 47 Cal.4th 501, our Supreme
Court held that when a defendant is convicted of a violent felony within the
meaning of ADDIN BA xc <@osdv> xl 33 s
DSIEYH000045 l "section 667.5, subdivision (c)(8)" section 667.5,
subdivision (c)(8), based on the defendant’s use of a firearm under ADDIN
BA xc <@$osdv> xl 15 s DSIEYH000043 section 12022.5,
a sentencing court’s imposition of both the ADDIN
BA xc <@$osdv> xl 15 s DSIEYH000043 section 12022.5 enhancement and the ADDIN
BA xc <@$osdv> xl 37 s DSIEYH000029 section 186.22,
subdivision (b)(1)(C) enhancement violates ADDIN
BA xc <@$osdv> xl 31 s DSIEYH000035 section 1170.1,
subdivision (f). ( ADDIN BA xc <@$cs> xl 32 s
DSIEYH000016 xhfl XRef xpl 1 Rodriguez, >supra, at pp. 508-509.) ADDIN
BA xc <@$cs> xl 9 s DSIEYH000016 Rodriguez
concluded that the proper remedy was not to strike the 10-year gun use
enhancement, but to reverse the judgment and remand the matter for
resentencing. ( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id.
at p. 509.) The court stated, “Remand
will give the trial court an opportunity to restructure its sentencing choices
in light of our conclusion that the sentence imposed here violated ADDIN
BA xc <@osdv> xl 32 s DSIEYH000046 l "section 1170.1’s
subdivision (f)" section 1170.1’s
subdivision (f).” ( ADDIN BA xc <@$id> xl 5 s ID xpl
1 Ibid.)

This case is on all fours with ADDIN
BA xc <@$cs> xl 9 s DSIEYH000016 Rodriguez. Accordingly, here, as in ADDIN
BA xc <@$cs> xl 9 s DSIEYH000016 Rodriguez,
the court’s imposition of both the 4-year firearm enhancement ( ADDIN BA xc <@$osdv> xl 20 s
DSIEYH000026 xpl 1 § 12022.5, subd. (a)), and the 10-year gang
enhancement (
ADDIN BA xc <@$osdv> xl 25 s DSIEYH000033 xpl 1 § 186.22, subd.
(b)(1)(C)) violated ADDIN
BA xc <@$osdv> xl 31 s DSIEYH000035 section 1170.1, subdivision (f), and only
the greatest of those enhancements may stand.
The proper remedy is to reverse the trial court’s sentence and remand
the matter to allow the court to restructure the sentence so as to not violate ADDIN
BA xc <@$osdv> xl 31 s DSIEYH000035 section 1170.1, subdivision (f). ( ADDIN BA xc <@$cs> xl 38 s
DSIEYH000016 xhfl Rep xpl 1 Rodriguez, >supra, 47 Cal.4th at p. 509.)

DISPOSITION

Defendant’s sentence on count 4
(assault with a firearm) is reversed, and the matter is remanded for
resentencing consistent with ADDIN
BA xc <@$osdv> xl 31 s DSIEYH000035 section 1170.1,
subdivision (f). The judgment is
affirmed in all other respects.





BLEASE , J.





We concur:





RAYE , P.
J.





MAURO , J.