People v. Sisneros CA3

Filed 3/22/22 P. v. Sisneros CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C089647

Plaintiff and Respondent, (Super. Ct. Nos. STK-CR-FE-2002-0009102, v. SF086673B)

ROBERT SISNEROS, OPINION ON TRANSFER

Defendant and Appellant.

This appeal lies from the trial court’s denial of defendant Robert Sisneros’s petition for resentencing under Penal Code section 1170.95.1 On appeal, defendant asserted that his 2004 conviction for attempted murder should have been eligible for relief under section 1170.95 and that failing to extend the statute’s coverage to individuals convicted of attempted murder would violate equal protection. We previously filed an opinion affirming the court’s denial of his petition. Thereafter, the Supreme Court granted review and transferred the matter back to us with directions to

1 Undesignated statutory references are to the Penal Code.

1

vacate the decision and reconsider the cause in light of Senate Bill No. 775 (Stats. 2021, ch. 551, § 2) (Senate Bill 775), which expanded section 1170.95 to provide a procedural mechanism for those convicted of attempted murder under the natural and probable consequences doctrine to seek resentencing. We vacated our decision and defendant filed a supplemental brief following the transfer. (See Cal. Rules of Court, rule 8.200(b).) The Attorney General declined to file a supplemental brief. Upon reconsidering the cause in light of Senate Bill 775, we agree with defendant that the trial court erred by summarily denying his petition under section 1170.95, as amended by Senate Bill 775. We reverse the order and remand for the trial court to consider the petition as to defendant’s attempted murder conviction under the current version of section 1170.95. BACKGROUND On August 8, 2003, the People filed an amended information charging defendant in count 1 with murder (§ 187) and in count 2 with participation in a criminal street gang (§ 186.22, subds. (a) & (e)(1)). In conjunction with count 1, it was further alleged as special circumstances that defendant committed murder while lying in wait (§ 190.2, subd. (a)(15)) and to further the activities of a criminal street gang (§ 190.2, subd. (a)(22)). It also was alleged that defendant personally and intentionally discharged a firearm to proximately cause great bodily injury and death (§ 12022.53, subd. (d)) and committed the crime to promote criminal activity by street gang members (§ 186.22, subd. (b)(1)). On April 21, 2004, pursuant to a plea agreement, the prosecution revised the information, amending count 1 to allege attempted murder (§§ 664, subds (a) & (f), 187), amending count 1 to include a firearm enhancement (§ 12022, subd. (a)(1)), and adding a charge of second degree robbery (§ 211; count 3). That same day, defendant pleaded guilty to amended counts 1 and 3, as well as unamended count 2. He also admitted