People v. Aniceto CA3

Filed 6/17/24 P. v. Aniceto CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C099733

Plaintiff and Respondent, (Super. Ct. Nos. STK-CR-FE- 2010-0006199, SF115216A) v.

ISMAEL ROSALES ANICETO,

Defendant and Appellant.

This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Delgadillo (2022) 14 Cal.5th 216.

FACTS AND HISTORY OF THE PROCEEDINGS

On March 4, 2011, a jury found defendant Ismael Rosales Aniceto “guilty of attempted premeditated murder (Pen. Code, §§ 664, 187, subd. (a); count 1; [unless otherwise stated, statutory section citations that follow are to the Code);] 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

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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)).” (People v. Aniceto (Mar. 22, 2013, C069293) [nonpub. opn.] (Aniceto), [fn. omitted].)

“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).” (Aniceto, supra, C069293.) Defendant appealed, and we concluded the trial court erred in imposing “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,” requiring reversal of defendant’s sentence on that count and remand for resentencing. (Aniceto, supra, C069293.) On remand, the trial court permanently struck the firearm enhancement associated with count four, reducing defendant’s total aggregate term to 40 years to life. Thereafter, on March 14, 2022, defendant filed an in propria persona petition for resentencing. We note that, effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. Defendant filed his petition under former section 1170.95, but we will cite to the current section 1172.6.