Opinion
G054905
11-29-2017
In re HAYATULLAH RAHIMI on Habeas Corpus.
Petitioner Hayatullah Rahimi, in pro. per. Xavier Becerra, Attorney General, and Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric Swenson and Barry Carlton, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 98CF0980) OPINION Original proceedings; petition for a writ of habeas corpus to challenge an order of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge. Petition granted in part. Petitioner Hayatullah Rahimi, in pro. per. Xavier Becerra, Attorney General, and Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric Swenson and Barry Carlton, Deputy Attorneys General, for Respondent.
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Before Aronson, Acting P. J., Fybel, J., and Thompson, J.
Petitioner Hayatullah Rahimi filed a petition for writ of habeas corpus raising numerous claims, a "Motion for Clarification Of Petitioner's Petition," a "Motion to Amend the Petition," and "Amend to Petition." Respondent concedes the petition for writ of habeas corpus has merit on the issue that petitioner's conviction for street terrorism must be vacated pursuant to People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez). We agree and grant relief solely on this one issue. In all other respects the petition and both amendments to the petition are summarily denied.
In 1999, a jury found petitioner Hayatullah Rahimi guilty of attempted murder, assault with a firearm, and street terrorism. The jury also found true enhancements that petitioner committed the offenses with the personal use of a firearm, discharged a firearm resulting in personal infliction of great bodily injury, and committed the offenses for the benefit of a criminal street gang. As a result, petitioner was sentenced to 32-years.
On the court's own motion and for good cause, the court takes judicial notice of the unpublished opinion in case number G025184. (Evid. Code, § 452.) --------
In May 2017, petitioner filed the current petition in which he makes numerous claims. We summarily deny all but one claim in which petitioner contends there is no evidence in the record that he committed the offenses in this case with another gang member, and therefore his conviction for street terrorism must be vacated. Respondent was ordered to file an informal response solely on this one issue and respondent concedes the issue has merit and petitioner is entitled to relief pursuant to Rodriguez, supra, 55 Cal.4th 1125.
In Rodriguez, the Supreme Court held that a conviction under Penal Code section 186.22, subdivision (a), requires that at least two gang members participate in an underlying felony. (Rodriguez, supra, 55 Cal.4th at 1138.) According to respondent, there was no evidence in this case that two gang members were involved in the offense and states, "Though petitioner may well have been in the presence of other gang members when he got out of his car and shot [the victim], there was no evidence anyone but petitioner was involved in the assault." According to respondent, "it appears . . . that petitioner is entitled to relief on his Rodriguez claim."
Because respondent's informal response concedes that petitioner is entitled to relief for the Rodriguez claim, the court advised respondent it was considering granting relief by vacating petitioner's conviction for street terrorism without the issuance of an order to show cause. (People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7.) Respondent was invited to file opposition to the court granting the aforementioned relief without the issuance of an order to show cause and respondent filed a letter stating respondent has no objection to the court's proposed relief.
Accordingly, the petition for writ of habeas corpus is granted solely with respect to petitioner's claim that he acted alone and his conviction for street terrorism must be vacated pursuant to Rodriguez, supra, 55 Cal.4th 1125. Petitioner's conviction for street terrorism in count 3 of the information is vacated. The clerk of the superior court is ordered to prepare forthwith an amended abstract of judgment to reflect the disposition of this court and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects the petition and amendment to the petition are denied.
In the interest of justice, the opinion in this matter is deemed final in this court and the clerk of this court is directed to issue the remittitur forthwith.