People v. Kishor CA3

Filed 5/25/21 P. v. Kishor CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C092425

Plaintiff and Respondent, (Super. Ct. No. 98F01523)

v.

CHANDRA KISHOR,

Defendant and Appellant.

Defendant Chandra Kishor appeals the trial court’s denial of his petition for resentencing under Penal Code section 1170.95.1 Defendant asserts the trial court erred when it found him ineligible for resentencing because he was convicted of attempted murder and the court should have allowed his petition to proceed to an evidentiary hearing as required by statute. We will affirm the trial court’s order.

1 Undesignated statutory references are to the Penal Code.

1

FACTUAL AND PROCEDURAL BACKGROUND In 1999, defendant pleaded no contest to robbery (§ 211) and attempted murder (§§ 664, 187, subd. (a)). (People v. Kishor (Jan. 9, 2001, C034740) [nonpub. opn.].) The trial court sentenced defendant to an aggregate prison term of 11 years to life. (Ibid.) We affirmed the judgment in 2001, and the case became final in 2001. (Ibid.) In 2019, defendant filed a petition for resentencing under section 1170.95. Defendant did not check any of the boxes in the petition declaring he stated a prima facie case under section 1170.95, but did request appointment of counsel. Defendant also checked a box on the form stating, “There has been a prior determination by a court or jury that I was not a major participant and/or did not act with reckless indifference to human life under [] § 190.2(d). Therefore, I am entitled to be re-sentenced pursuant to § 1170.95(d)(2).” The trial court appointed counsel and received briefing from the parties. The court issued an order noting defendant “was not convicted of murder,” and requested supplemental briefing from the parties about whether the petition should be denied because defendant “seeks relief from his attempted murder conviction, and not an actual murder conviction.” Both parties submitted briefing in response to the order. The court then issued a written order denying the petition, finding defendant had “not shown that he falls within the provisions of [] § 1170.95.” DISCUSSION I Section 1170.95 and Attempted Murder Defendant argues he was eligible for relief under section 1170.95, despite his attempted murder conviction, because the intent of Senate Bill No. 1437 (2017-2018 Reg. Sess.) is to equitably sentence individuals in accordance with their level of culpability. Thus, his argument goes, the trial court should have issued an order to show cause and held an evidentiary hearing on defendant’s entitlement to relief because attempted murder