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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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)

----

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.
2

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 
3

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 felonymurder 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.