People v. Phothirath CA3

Filed 10/20/21 P. v. Phothirath CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C092316

Plaintiff and Respondent, (Super. Ct. No. 01F06798)

v.

CHRISTOPHER PHOTHIRATH,

Defendant and Appellant.

Defendant Christopher Phothirath appeals the trial court’s denial of his petition for resentencing under Penal Code section 1170.95, enacted as part of Senate Bill No. 1437 (2017-2018 Reg. Sess.).1 He contends his conviction for attempted murder as an aider and abettor on a natural and probable consequences theory was eligible for relief under section 1170.95. He also contends, and the People properly concede, that the sentence

1 Undesignated statutory references are to the Penal Code.

1

imposed is unauthorized under People v. Gonzalez (2009) 178 Cal.App.4th 1325 (Gonzalez). We agree the sentence is unauthorized and remand for resentencing, and affirm the order denying defendant’s section 1170.95 petition. BACKGROUND In 2003, a jury found defendant guilty of committing three crimes against a single victim: assault with a deadly weapon with force likely to cause great bodily injury, (§ 245, subd. (a)(1)—count one) with a true finding defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)), attempted murder (§§ 664, 187, subd. (a)—count two) with a true finding defendant personally and intentionally discharged a firearm which caused great bodily injury or death (§ 12022.53, subds. (d) & (e)), and assault with a firearm (§ 245, subd. (a)(2)—count three), with a true finding defendant was armed with a firearm in the commission of the offense (§ 12022, subd. (a)(1)). The jury also found true gang enhancements as to all three counts (§ 186.22, subd. (b)(1)). The trial court sentenced defendant to an aggregate term of 14 years four months: the upper term of nine years for attempted murder, plus 25 years to life for the firearm enhancement, a consecutive one-year term for assault with a deadly weapon by force likely to cause great bodily injury, plus three years four months for the gang enhancement (one-third the midterm), plus one year for the great bodily injury enhancement; and, imposed and stayed under section 654 a three-year term for assault with a firearm, plus a one-year term on the firearm enhancement, plus three years on the gang enhancement. On appeal, we affirmed defendant’s conviction. (People v. Xabandith (July 5, 2005, C045950) [nonpub. opn.].)2 In 2019, defendant filed a section 1170.95 petition for resentencing. The trial court appointed counsel and ordered briefing. In the trial court, the district attorney