P. v. Sisneros

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Filed 3/29/21 P. v. Sisneros 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
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THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT SISNEROS,
Defendant and Appellant.
C089647
(Super. Ct. Nos.
STK-CR-FE-2002-0009102,
SF086673B)
Defendant Robert Sisneros appeals the trial court’s denial of his petition for
resentencing under Penal Code section 1170.95,1 arguing 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 disagree and will affirm the trial court’s order.
1 Undesignated statutory references are to the Penal Code.

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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
sentencing enhancements pursuant to sections 186.22, subdivision (b)(1), and 12022,
subdivision (a)(1).
At the May 3, 2004 sentencing hearing, the trial court imposed an aggregate prison
sentence of 20 years.
In March 2019, defendant filed a petition for resentencing under section 1170.95.
In his petition, defendant declared that he pleaded “guilty or no contest to 1st or 2nd
degree murder in lieu of going to trial” on murder charges pursuant to the felony-murder
rule or the natural and probable consequences doctrine, he “was convicted of 2nd degree
murder under the natural and probable consequences doctrine or under the 2nd degree
felony murder doctrine,” and he “could not now be convicted of murder” because of
changes to section 188. The trial court denied the petition on the ground that defendant
had not made a prima facie showing of relief because he had pleaded “guilty in a

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negotiated plea to charges that are not applicable to [] § 1170.95.” Defendant timely
appealed.
DISCUSSION
Defendant argues the trial court erred in summarily denying his request for
resentencing after finding section 1170.95 applies only to persons convicted of murder.
He reasons he is entitled to further proceedings because section 1170.95 applies to his
long-final attempted murder conviction. He claims attempted murder is a qualifying
offense in his case because he accepted a plea deal in lieu of a trial in which he could
have been convicted of first or second degree murder. He also asserts that “the failure to
apply section 1170.95 to petitioners who pleaded guilty to non-murder offenses after
being charged with murder would violate equal protection.” We join those courts that
have found that the plain language of section 1170.95 renders it inapplicable to
convictions other than for felony murder or murder under a natural and probable
consequences theory.
“ ‘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 (2017-2018 Reg. Sess.) (Senate Bill 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(f).) Senate
Bill 1437 achieved these goals by amending sections 188 and 189, statutes pertaining to
the crime of murder. The bill amended section 188 to provide: “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime
shall act with malice aforethought. Malice shall not be imputed to a person based solely

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on his or her participation in a crime.” (Stats. 2018, ch. 1015, § 2.) Section 189,
subdivision (e) now provides that a participant in the perpetration or attempted
perpetration of a felony specified in subdivision (a) in which death occurs is liable for
murder only if one of the following is proven: “(1) The person was the actual killer. [¶]
(2) The person was not the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] (3) The person 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.” 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.)
Numerous courts have analyzed the language of section 1170.95, subdivision (a)
and found it inapplicable to challenges by defendants convicted of attempted murder.
(See People v. Lopez (2019) 38 Cal.App.5th 1087, 1104-1105 [section 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)

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39 Cal.App.5th 738, 754-756 [the plain language of section 1170.95 does not encompass
attempted murder], review granted Nov. 26, 2019, S258234; People v. Medrano (2019)
42 Cal.App.5th 1001, 1008, 1018 [same], review granted Mar. 11, 2020, S259948.)
We find no support for the assertion that section 1170.95, subdivision (a)(2)’s
reference to individuals who “accepted a plea offer in lieu of a trial at which the
petitioner could be convicted for first degree or second degree murder” expands the scope
of relief under section 1170.95 to individuals who pleaded guilty to a crime less than first
or second degree murder. (See People v. Sanchez (2020) 48 Cal.App.5th 914, 918-919
[attempting to use the plea portion of subdivision (a)(2) to expand available relief ignores
the plain language of the introduction “ ‘that limits petitions to persons “convicted of . . .
murder” ’ ”]; Flores, supra, 44 Cal.App.5th at p. 995 [this clause must be read in context
and “the remaining portions of section 1170.95 repeatedly and exclusively refer to
murder, not manslaughter”]; People v. Turner (2020) 45 Cal.App.5th 428, 438 [“[v]iewed
together, the legislative history confirms that a defendant who faces murder liability
under the natural and probable consequences doctrine, but pleads guilty to manslaughter
in lieu of trial, is not eligible for resentencing under section 1170.95”].)
The Courts of Appeal have reached differing conclusions on whether Senate Bill
1437 (2017-2018 Reg. Sess.) applies to attempted murder convictions that are not final.
(Compare People v. Larios (2019) 42 Cal.App.5th 956, 964-968, review granted Feb. 26,
2020, S259983 [applies], review granted Feb. 26, 2020, S259983, and People v. Sanchez
(2020) 46 Cal.App.5th 637, 642-644 [applies], review granted June 10, 2020, S261768
(Sanchez), with People v. Munoz, supra, 39 Cal.App.5th at pp. 753-760 [does not apply],
review granted Nov. 26, 2019, S258234, and Lopez, supra, 38 Cal.App.5th at pp. 1103-
1105, 1113-1114 [does not apply], review granted Nov. 13, 2019, S258175.)
But, while these courts have disagreed on whether Senate Bill 1437 applies to
nonfinal attempted murder convictions, they agree the relief provided by section 1170.95
is limited to convictions for murder. (Larios, supra, 42 Cal.App.5th at p. 961 [“Although

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we find ourselves in fundamental disagreement with the Lopez and Munoz decisions on
the scope and legal ramifications of Senate Bill 1437 as it pertains to attempted murder,
we agree with their ultimate conclusion that section 1170.95 provides no relief for the
crime of attempted murder”], review granted Feb. 26, 2020, S259983.) Thus,
notwithstanding the split of authority, even the cases most favorable for individuals
convicted of attempted murder— i.e., Larios and Sanchez, supra, 46 Cal.App.5th 637,
review granted June 10, 2020, S261768—do not support defendant’s interpretation of
section 1170.95. Defendant acknowledges this, but asserts these cases were “wrong” on
this point and that he is entitled to relief under section 1170.95. We disagree and decline
defendant’s invitation to extend the rationale of Larios and Sanchez to open section
1170.95’s petition procedure to those defendants subject to a final judgment for
attempted murder. (See People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 [“In
general, an appealable order that is not appealed becomes final and binding and may not
subsequently be attacked on an appeal from a later appealable order or judgment”].)
We also do not agree with defendant that interpreting the statute to disallow claims
for relief for individuals convicted of anything less than the specified murder convictions
leads to an absurd result or renders language of section 1170.95, subdivision (a)(2)
superfluous. These arguments have been considered and rejected. (See, e.g., People v.
Sanchez, supra, 48 Cal.App.5th at pp. 918-919 [reasoning that this interpretation does not
produce an absurd result and clarifying that section 1170.95 applies to both murder
convictions by plea or trial is not surplusage].)
Finally, the Legislature’s decision to exclude attempted murder does not violate
principles of equal protection because “those charged with, or found guilty of, murder
are, by definition, not similarly situated with individuals who face other, less serious
charges. [¶] . . . The Legislature is permitted to treat these two groups of criminals
differently.” (Lopez, supra, 38 Cal.App.5th at pp. 1109-1110, review granted Nov. 13,
2019, S258175.) “And there is a rational basis for the Legislature’s decision to grant

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relief pursuant to section 1170.95 only to murder convictions and exclude attempted
murder convictions based on judicial economy and the financial costs associated with
reopening both final murder and final attempted murder convictions.” (People v.
Medrano, supra, 42 Cal.App.5th at p. 1018, review granted Mar. 11, 2020, S259948.)
Defendant’s conviction for attempted murder is not eligible for relief under section
1170.95.
DISPOSITION
The trial court’s order denying defendant’s request for resentencing is affirmed.
KRAUSE , J.
We concur:
MAURO , Acting P. J.
RENNER , J.

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