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                                           NOT TO BE PUBLISHED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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)


THE PEOPLE,                                                                                  C069293

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF115216A)

         v.

ISMAEL ROSALES ANICETO,

                   Defendant and Appellant.




         A jury found defendant Ismael Rosales Aniceto guilty of attempted premeditated
murder (Pen. Code,1 §§ 664, 187, subd. (a); count 1); permitting another to shoot from a
vehicle (former § 12034, subd. (b); count 2); street terrorism (§ 186.22, subd. (a);
count 3); and assault with a firearm (§ 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 (§ 186.22, subd. (b)(1)), a principal intentionally and personally discharged a
firearm in the commission of count 1 (§ 12022.53, subds. (c) & (e)), and defendant
personally used a firearm in the commission of count 4 (§ 12022.5, subd. (a)).



1   Further undesignated statutory references are to the Penal Code.

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        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 section 12022.53, subdivision (c); and a consecutive 3 years
(the middle term) for the assault (count 4), plus an additional 4 years under section
12022.5, subdivision (a), and an additional 10 years under section 186.22,
subdivision (b)(1)(C). The trial court stayed defendant‟s sentence on counts 2 and 3
pursuant to section 654. It also declined to impose the enhancement for participation in a
criminal street gang appended to count 1 pursuant to 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 Miranda2 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 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 (§ 12022.5, subd. (a)) and committing a violent felony to benefit a
criminal street gang (§ 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.




2   Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).

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                  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.

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       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 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.

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       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 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
Miranda. The trial court held an evidentiary hearing (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



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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.
       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.” (Rhode Island v. Innis (1980) 446 U.S. 291, 300-301
[64 L.Ed.2d 297, 307-308]; 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 Fifth Amendment, generally must be excluded from evidence at
trial. (Oregon v. Elstad (1985) 470 U.S. 298, 307 [84 L.Ed.2d 222, 231]; People v.
Bradford (1997) 14 Cal.4th 1005, 1033.)
       Not all conversation between a police officer and a suspect constitutes
interrogation under Miranda. (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 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 Miranda. (See 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

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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 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 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 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.]‟ ” (People v. Lewis (2001)
26 Cal.4th 334, 386, quoting People v. Mickle (1991) 54 Cal.3d 140, 170.) In 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. (Ibid.)
       In this case, the booking interview occurred the day after defendant was
interviewed by Officer Tacazon. Thus, the 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

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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 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 Miranda rights, factors not shown to exist
here. Considering “the totality of the circumstances” (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 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 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. (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.]” (People v. Carrington (2009) 47 Cal.4th 145, 170.)

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       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.” (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




                                              9
based its verdict on the natural and probable consequences doctrine. (See People v.
Guiton (1992) 4 Cal.4th 1116, 1129 (Guiton).)
       In 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.”
(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.‟ ” (People v.
Houston (2012) 54 Cal.4th 1186, 1224, quoting 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

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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 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 (§ 12022.5, subd. (a)), and the 10-year
term for the gang enhancement (§ 186.22, subd. (b)(1)(C)) on count 4 violated
section 1170.1, subdivision (f). They are correct.
       Pursuant to 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 . . . .” 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 . . . .”3 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



3  The exemption for felonies where “use of a firearm is an element of th[e] offense”
(§ 12022.5, subd. (a)), does not apply to „any violation of Section 245 if a firearm is
used . . . .” (§ 12022.5, subd. (d).) “[B]ecause defendant‟s [crime] of assault with a
firearm (§ 245, subd. (a)(2)) necessarily involved firearm use, at first glance, that would
exempt him from the additional punishment. But because his firearm use pertained to
„violation[s] of Section 245,‟ defendant falls within the exception to the exemption and
thus is subject to additional punishment under section 12022.5, subdivision (a), for
personally using a firearm . . . .” (People v. Rodriguez (2009) 47 Cal.4th 501, 505
(Rodriguez).)

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punishment: Subdivision (b)(1)(A) of 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 section 1192.7‟s subdivision (c). And under
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
Section 667.5.‟ Here, [the count] of assault with a firearm (§ 245, subd. (a)(2)) qualified
as a „violent‟ felony under section 667.5, subdivision (c), because in committing [that
offense] defendant “use[d] a firearm which use has been charged and proved” under
section 12022.5. (§ 667.5, subd. (c)(8).)” (Rodriguez, supra, 47 Cal.4th at p. 505.)
          In Rodriguez, supra, 47 Cal.4th 501, our Supreme Court held that when a
defendant is convicted of a violent felony within the meaning of section 667.5,
subdivision (c)(8), based on the defendant‟s use of a firearm under section 12022.5, a
sentencing court‟s imposition of both the section 12022.5 enhancement and the
section 186.22, subdivision (b)(1)(C) enhancement violates section 1170.1,
subdivision (f). (Rodriguez, supra, at pp. 508-509.) 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. (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 section 1170.1‟s subdivision (f).”
(Ibid.)
          This case is on all fours with Rodriguez. Accordingly, here, as in Rodriguez, the
court‟s imposition of both the 4-year firearm enhancement (§ 12022.5, subd. (a)), and the
10-year gang enhancement (§ 186.22, subd. (b)(1)(C)) violated 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



                                              12
restructure the sentence so as to not violate section 1170.1, subdivision (f). (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 section 1170.1, subdivision (f). The
judgment is affirmed in all other respects.



                                              BLEASE                   , J.


We concur:


         RAYE                      , P. J.


         MAURO                     , J.




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