People v. Elghembri CA4/3

Filed 1/15/21 P. v. Elghembri CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G058659

v. (Super. Ct. No. 06NF4238)

AHMED MOHAMED ELGHEMBRI, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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In 2008, a jury convicted defendant Ahmed Mohamed Elghembri of attempted murder, assault with a firearm, shooting from a motor vehicle, shooting at an occupied motor vehicle, and carrying a loaded firearm in public. The court sentenced defendant to a state prison term of 25 years; five years for the attempted murder and a consecutive 20 years for a firearm enhancement. On his direct appeal from the judgment, defendant did not challenge the conviction of attempted murder nor the true finding on the firearm enhancement, nor the sentence imposed on the attempted murder and firearm enhancement. Instead, he argued the court committed sentencing error on the remaining convictions. (People v. Elghembri (Mar. 19, 2010, G042274) [nonpub. opn.].) We agreed with defendant’s assertion of sentencing error and remanded the matter for resentencing only. (Ibid.) On remand, the court corrected the sentencing error and, as before, resentenced defendant to an aggregate state prison term of 25 years. On October 1, 2019, Philong Huynh, describing himself as “a fellow prisoner and ‘next friend’” of defendant, filed two nearly identical petitions for 1 resentencing pursuant to Penal Code section 1170.95. The petitions alleged defendant had “been taken without notice by prison officials and re-housed in administrative 2 segregation housing leaving him personally unable to file this petition on his own.” Huynh further alleged, on information and belief, that defendant was found guilty of attempted murder without premeditation, and “the prosecution proceeded under the natural and probable consequences theory of liability which has now been obviated by [Senate Bill No.] 1437 (PC 1170.95) . . . .” Huynh requested that defendant’s “sentence be vacated for the now admittedly wrong theory of liability under the law (natural and probable consequence theory).” 1 All further statutory references are to the Penal Code. 2 We note that although defendant did not himself file the section 1170.95 petitions, he did personally file and sign both the notice of appeal and his supplemental briefs on appeal.