(Super. Ct. No. SF115216A)
The opinion of the court was delivered by: Blease , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Ismael Rosales Aniceto guilty of attempted premeditated murder (Pen. Code,*fn1 §§ 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)).
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 Miranda*fn2 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.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of March 18, 2009, Angelo Villanueva and his brother, both members of the Norteno criminal street gang, visited Villanueva's girlfriend at the Farmington Apartments, known Sureno turf, in Stockton. While Villanueva and his girlfriend were standing outside her apartment, defendant and Samuel Paniagua, a member of the Sureno 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 Norteno and Sureno 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. Surenos are associated with the color blue, while Nortenos are associated with the color red. Surenos tend to dress conservatively in earth tones and have shaved heads or very short hair. Nortenos typically dress more flamboyantly and have longer hair.
There are separate sub-sets within the Sureno criminal street gang, including the Vicky's Town (VST) and Playboy Surenos (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 Surenos lived in her apartment complex, and he was wearing it on the day in question. The gang expert opined that Villanueva purposefully disrespected the Surenos 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 ...