P. v. Kishor

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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
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THE PEOPLE,
Plaintiff and Respondent,
v.
CHANDRA KISHOR,
Defendant and Appellant.
C092425
(Super. Ct. No. 98F01523)
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.

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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

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is a lesser included offense of murder and it would be absurd for the legislation to apply
to murder but not to attempted murder. We disagree.
“ ‘If the language [of a statute] is clear, courts must generally follow its plain
meaning unless a literal interpretation would result in absurd consequences the
Legislature did not intend.’ [Citation.]” (People v. Flores (2020) 44 Cal.App.5th 985,
992 (Flores).)
Senate Bill No. 1437 was enacted to “amend the felony murder rule and the
natural and probable consequences doctrine, . . . to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with the intent to kill, or was
not a major participant in the underlying felony who acted with reckless indifference to
human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill No. 1437 achieved these
goals by amending sections 188 and 189, statutes pertaining to the crime of murder. The
legislation also added section 1170.95, which provides a mechanism for defendants
“convicted of felony murder or murder under a natural and probable consequences
theory” (§ 1170.95, subd. (a)) to file a petition in the sentencing court to have a murder
conviction vacated and to be resentenced.
“[S]ection 1170.95 authorizes only a person who was ‘convicted of felony murder
or murder under a natural and probable consequences theory [to] file a petition with the
court that sentenced the petitioner to have the petitioner’s murder conviction
vacated . . . .’ (Id., subd. (a), italics added.) If the petitioner makes a prima facie
showing that he or she is entitled to relief, the sentencing court must ‘hold a hearing to
determine whether to vacate the murder conviction and to recall the sentence and
resentence the petitioner on any remaining counts . . . .’ (Id., subd. (d)(1), italics added.)
In lieu of a resentencing hearing, the parties may stipulate that ‘the petitioner is eligible to
have his or her murder conviction vacated’ and to be resentenced. (Id., subd. (d)(2),
italics added.)” (Flores, supra, 44 Cal.App.5th at p. 993.)

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Numerous courts have reviewed the language of section 1170.95, subdivision (a)
and found it inapplicable to challenges by defendants with final judgments for
convictions of attempted murder. (People v. Lopez (2019) 38 Cal.App.5th 1087, 1104-
1105 [§ 1170.95 authorizes petitions by those convicted of murder directed at that
individual’s murder conviction], review granted Nov. 13, 2019, S258175 (Lopez); People
v. Munoz (2019) 39 Cal.App.5th 738, 754-756 [the plain language of § 1170.95 does not
encompass attempted murder], review granted Nov. 26, 2019, S258234 (Munoz); People
v. Larios (2019) 42 Cal.App.5th 956, 961, 969-970 [same], review granted Feb. 26, 2020,
S259983; People v. Medrano (2019) 42 Cal.App.5th 1001, 1008, 1018 [same], review
granted Mar. 11, 2020, S259948.) Defendant cites no persuasive authority for the
proposition that we must read “attempted murder” into section 1170.95 where the
Legislature has plainly omitted it. When the Legislature wishes a statute to encompass
both a completed crime and an attempt, it knows how to say so. (Munoz, supra, at
p. 757; see, e.g., §§ 12022.53, subd. (a)(18), 12022, subd. (a)(1), 667.5, subd. (c)(12),
1192.7, subd. (c)(22), (39).) We are not at liberty to add to the statute what the
Legislature has omitted. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 545; Munoz,
supra, at pp. 755-756.)
For similar reasons, we find unpersuasive defendant’s citation to Senate
Concurrent Resolution No. 48 (2017-2018 Reg. Sess.) resolution chapter 175, which
includes a brief reference to punishment for “nonhomicide matters,” to argue the
Legislature intended to include attempted murder in drafting section 1170.95. If, as
defendant contends, the reference to “nonhomicide matters” is a reference to attempted
murder, the fact the Legislature later omitted any such reference in section 1170.95
suggests the Legislature could have included attempted murder in the language, but
simply chose not to do so. (Munoz, supra, 39 Cal.App.5th at p. 755, review granted.)
Nor, contrary to defendant’s claim, is such an interpretation absurd or contrary to
the legislative intent. “The legislative goal was to eliminate the sentencing disparity

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caused by the felony murder rule. That goal was properly achieved by the section
1170.95 petition procedure to vacate those murder convictions.” (People v. Cervantes
(2020) 44 Cal.App.5th 884, 889; see Flores, supra, 44 Cal.App.5th at pp. 996-997.)
Moreover, the basic punishment for attempted murder is already less than that imposed
for first or second degree murder. (Munoz, supra, 39 Cal.App.5th at pp. 757-758, review
granted.) “Providing relief solely to defendants convicted of murder under a felony-
murder or natural and probable consequences theory does not conflict with the
Legislature’s stated objective to make ‘statutory changes to more equitably sentence
offenders . . . .’ ” (People v. Turner (2020) 45 Cal.App.5th 428, 439.)
Because the plain language of section 1170.95 is clear, and does not lead to an
absurd result, we will follow its plain meaning and conclude that convictions for
attempted murder are ineligible for section 1170.95 relief. In so doing, we are in accord
with the uniform line of decisions by other Courts of Appeal that section 1170.95 applies
to defendants convicted of murder, not to defendants who are convicted of attempted
murder or another lesser offense. (People v. Medrano, supra, 42 Cal.App.5th at
pp. 1008, 1018, review granted; People v. Larios, supra, 42 Cal.App.5th at p. 961, review
granted; Lopez, supra, 38 Cal.App.5th at pp. 1104-1105, review granted; Munoz, supra,
39 Cal.App.5th at p. 754, review granted; People v. Sanchez (2020) 48 Cal.App.5th 914,
916 [charged with first degree murder with a gang enhancement, pleaded guilty to
voluntary manslaughter and admitted enhancement]; People v. Turner, supra,
45 Cal.App.5th at pp. 431-432 [charged with first degree murder and firearm and gang
enhancements, pleaded guilty to voluntary manslaughter and admitted enhancement];
Flores, supra, 44 Cal.App.5th at pp. 989-990 [charged with murder with robbery and
gang enhancements, pleaded guilty to voluntary manslaughter and admitted
enhancements]; People v. Cervantes, supra, 44 Cal.App.5th at p. 887 [charged with
murder, pleaded no contest to voluntary manslaughter].)

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Defendant was convicted of attempted murder. Section 1170.95 does not provide
relief for persons convicted of attempted murder. Therefore, the trial court properly
denied the petition and was not required to hold an evidentiary hearing because defendant
was ineligible for resentencing as a matter of law.
II
Equal Protection
Defendant contends an interpretation of section 1170.95 that excludes attempted
murder convictions violates equal protection principles. We disagree.
“ ‘The first prerequisite to a meritorious claim under the equal protection clause is
a showing that the state has adopted a classification that affects two or more similarly
situated groups in an unequal manner.’ [Citations.] This initial inquiry is not whether
persons are similarly situated for all purposes, but ‘whether they are similarly situated for
purposes of the law challenged.’ ” (Cooley v. Superior Court (2002) 29 Cal.4th 228,
253.)
Defendant was convicted of attempted murder, a different crime than murder,
which carries a different punishment than murder and is not similarly situated to those
convicted of murder. (Lopez, supra, 38 Cal.App.5th at pp. 1109-1110 [“an individual
charged with, or convicted of, murder under the natural and probable consequences
doctrine is not similarly situated to an individual confronting a charge of attempted
murder . . . under the doctrine”]; Munoz, supra, 39 Cal.App.5th at pp. 760-761, review
granted [“Attempted murder and murder are different offenses”].) Defendant’s equal
protection challenge thus fails at the first step.

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DISPOSITION
The order denying the petition for resentencing under section 1170.95 is affirmed.
/s/
RAYE, P. J.
We concur:
/s/
HULL, J.
/s/
HOCH, J.

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