People v. Bishop CA3

Filed 7/28/22 P. v. Bishop CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C092860

Plaintiff and Respondent, (Super. Ct. No. 96F09659)

v.

ALONZO BISHOP,

Defendant and Appellant.

Defendant Alonzo Bishop appeals from the trial court’s order denying his petition for resentencing under former Penal Code section 1170.95.1 He argues the trial court erred when it denied his petition at the prima facie stage after finding substantial evidence in his codefendants’ pleas that could theoretically support a murder conviction under

1 Further undesignated statutory references are to the Penal Code. Effective June 30, 2022, former section 1170.95 was recodified without substantive change to section 1172.6. (Stats. 2022, ch. 58, § 10.) In this opinion, we shall continue to refer to this section as former section 1170.95.

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current law. The People concede the trial court erred. We accept the People’s concession and will remand the case for further proceedings. I. BACKGROUND In August 1997, defendant pled guilty to attempted willful, deliberate, and premediated first degree murder. He also admitted to personal use of a knife in the commission of the crime. At the plea hearing, the parties agreed the factual basis for the plea to be that defendant and his codefendants “took ahold of the victim,” and “ ‘one person held the victim while two people stabbed the victim.’ ” The trial court subsequently sentenced defendant to a term of seven years to life, plus one year for the personal use allegation. Defendant did not appeal his conviction. In 2019, defendant filed a former section 1170.95 petition for resentencing in which he alleged the information filed against him “allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine.” He further alleged that he pled guilty rather than going to trial because he “believed [he] could have been convicted of 1st or 2nd degree murder at trial pursuant to the felony murder rule or the natural and probable consequences doctrine,” and he was not “the actual killer.” Defendant alleged he “could not now be convicted of 1st or 2nd degree murder because of changes made to . . . §§ 188 and 189, effective January 1, 2019”, and “[t]here ha[d] been a prior determination by a court or jury that [he] was not a major participant and/or did not act with reckless indifference to human life under . . . § 190.2[, subdivision ](d).” After receiving the petition, the trial court appointed counsel. After “early review” of defendant’s petition, the court found “there [wa]s a question as to whether defendant . . . [wa]s eligible to seek relief under the provisions of [former] § 1170.95.” The court thus ordered the parties to file “special” briefs addressing “whether the instant petition should be denied because (1) defendant . . . seeks relief from his attempted murder conviction, and not an actual murder conviction, and/or (2) defendant . . . ‘could’ have been convicted of attempted murder under law as it stands