In re Ayache CA4/3 ( 2013 )

Filed 12/16/13 In re Ayache 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re EDWARD ALI AYACHE G049290
on Habeas Corpus. (Super. Ct. No. 09ZF0052)
OPINION
Original proceedings; petition for a habeas corpus, after judgment of the
Superior Court of Orange County. Petition granted.
Edward Ali Ayache, in pro. per. for Petitioner.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and
Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Petitioner Edward Ali Ayache was convicted of murder (Pen. Code, § 187,
subd. (a); all undesignated statutory references are to the Penal Code) carried out for the
benefit of a criminal street gang (§ 190.2, subd. (a)(22)), active participation in a criminal
street gang (§ 186.22, subd. (a)), and two counts of attempted murder (§§ 187, subd. (a),
664, subd. (a)). The jury found the murder and attempted murders were committed for
the benefit of a criminal street gang (§ 186.22, subd. (b)), that Ayache personally
discharged a firearm causing death (12022.53, subd. (d)) in connection with the murder,
and that he personally discharged a firearm in connection with the attempted murders.
Those offenses occurred on November 18, 2000. The jury also found Ayache guilty of
three offenses alleged to have occurred on January 9, 2009: possession of a loaded
firearm by a felon (§ 12021, subd. (a)(1)), active participation in a criminal street gang (§
186.22, subd. (a); count six), and a misdemeanor, resisting or delaying a law enforcement
officer (§ 148, subd. (a)).
The court sentenced defendant to life without the possibility of parole on
the murder and a consecutive 25 years to life on the firearm enhancement alleged in
connection with the murder; on one of the attempted murder convictions, a consecutive
life term, plus 20 years on the firearm enhancement attached to that offense; on the other
attempted murder conviction, a consecutive term of seven years (the middle term) plus 20
years for the attached firearm enhancement. In addition, the court sentenced Ayache to a
consecutive term of two years (the middle term) on his conviction for felon in possession
of a firearm on January 9, 2009, and a concurrent two-year term on count six. Ayache
appealed and we affirmed the judgment (People v. Ayache (Mar. 8, 2012, G043201)
[nonpub. opn.]) prior the California Supreme Court’s decision in People v. Rodriguez
(2012) 55 Cal.4th 1125 [a defendant acting alone does not violate section 186.22,
subdivision (a)].) Ayache acted alone on January 9, 2009, and had Rodriguez been
decided at the time we considered the issue, we would have reversed his conviction on
count six for violation of section 186.22, subdivision (a) on that date. Ayache filed a
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petition for review. The Supreme Court denied the petition without prejudice to
Ayache’s right to seek a further remedy depending on the outcome in Rodriguez.
After the Supreme Court decided Rodriguez, Ayache filed a petition for a
writ of habeas corpus in the Supreme Court, seeking vacation of his conviction on count
six. The court issued an order to show cause directing the Secretary of the Department of
Corrections and Rehabilitation to show cause before us why Ayache is not entitled to
relief as conceded by the Attorney General in her informal response to the petition.
The Secretary of the Department of Corrections and Rehabilitation has filed
a return conceding Ayache is entitled to relief. We agree. (People v. Rodriguez, supra,
55 Cal.4th at p. 1128.) Accordingly, we grant the petition and order Ayache’s conviction
on count six, violation of section 186.22, subdivision (a), in Orange County Superior
Court case No. 09ZF0052 vacated.
III
DISPOSITION
The petition for a writ of habeas corpus is granted. The conviction for
violation of section 186.22, subdivision (a) in count six of Orange County Superior Court
case No. 09ZF0052 is ordered vacated. The clerk of the superior court is directed to
prepare an amended abstract of judgment and forward a certified copy of the amended
abstract to the Department of Corrections and Rehabilitation.
MOORE, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ARONSON, J.
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