People v. Kishor CA3

Filed 2/22/22 P. v. Kishor CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. OPINION ON TRANSFER CHANDRA KISHOR,

Defendant and Appellant.

In 1999, defendant pleaded no contest to robbery (Pen. Code, § 211)1 and attempted murder (§§ 664, 187, subd. (a)). The trial court sentenced defendant to an aggregate state prison term of 11 years to life. We affirmed the judgment in 2001, and the case became final in 2001. (People v. Kishor (Jan. 9, 2001, C034740) [nonpub. opn.].)

1 Undesignated statutory references are to the Penal Code.

1

In 2019, defendant filed a petition for resentencing under section 1170.95. 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.” In May 2021, this court issued an unpublished opinion affirming the trial court’s order denying the petition for resentencing, and concluding, consistent with then- prevailing case law, that defendants convicted of attempted murder were not eligible for resentencing under section 1170.95. (People v. Kishor (May 25, 2021, C092425) [nonpub. opn.].) The Supreme Court granted review and transferred the matter back to us with directions to vacate our decision and reconsider the issue in light of Senate Bill No. 775 (2021-2022 Reg. Sess.), which amended section 1170.95 to, among other things, clarify that “persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural and probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.” (Stats. 2021, ch. 551, § 1, subd. (a).) Defendant submitted supplemental briefing arguing that the trial court’s rationale for denying the petition is no longer valid and the case must be remanded because defendant stated a prima facie case for eligibility.2 We agree and will remand the case for further proceedings.