People v. Gopal CA5

Filed 12/23/22 P. v. Gopal CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F084288 Plaintiff and Respondent, (Super. Ct. No. 1060116) v.

ARVIND VYAS GOPAL, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Stanislaus County. Shawn D. Bessey, Judge. Patrick J. Hoynoski, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Franson, J. and Meehan, J.

INTRODUCTION In 2003, a jury convicted appellant Arvind Vyas Gopal of the following four felonies: (1) Attempted murder (Pen. Code, §§ 664/187, subd. (a);1 count I); (2) Mayhem (§ 205; count II); (3) Assault with a deadly weapon (§ 245, subd. (a)(1); count III); and (4) Making a criminal threat (§ 422; count IV). Regarding the conviction for attempted murder, the jury found true that appellant acted intentionally, deliberately, and with premeditation. In other counts, the jury found true that he personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)), and he personally used a deadly and dangerous weapon, a knife (§ 12022, subd. (b)). In 2004, appellant was sentenced to prison for life with the possibility of parole for the attempted murder in count 1, which was further enhanced by four years, along with a consecutive determinate sentence of one year. In 2022, appellant filed a form petition in the superior court requesting resentencing pursuant to section 1170.95.2 Appellant claimed in his petition that he could no longer be convicted of attempted murder because of changes to sections 188 and 189 effective January 1, 2019.3 Appellant also requested the appointment of counsel.

1 All future statutory references are to the Penal Code unless otherwise noted. 2 Effective June 30, 2022, section 1170.95 was renumbered as section 1172.6, with no change in its text. (Stats. 2022, ch. 58, § 10.) 3 In relevant part, section 188 requires a principal in a crime to act with malice aforethought to be guilty of murder, and malice may not be imputed to a person based solely on his participation in a crime. (§ 188, subd. (a)(1)-(3).) Under section 189, a person is liable for first degree murder only if (1) he was the actual killer; or (2) he acted with an intent to kill in aiding and abetting the actual killer; or (3) he was a “major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e)(1)-(3).)