People v. Kishor CA3 ( 2024 )

Filed 10/8/24 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C100492
v. (Super. Ct. No. 98F01523)
CHANDRA KISHOR,
Defendant and Appellant.
In 1998, defendant Chandra Kishor sent three people to his estranged wife’s home
to rob and murder her. The three were to keep the proceeds of the robbery as payment for
the murder. In addition to robbing the victim, they assaulted her, tried to drown her,
smothered her with a bleach-soaked rag, tried to set her on fire, and stabbed her twice in
the back. The victim survived.
Defendant pleaded no contest to attempted murder and robbery. The trial court
sentenced him to state prison for an indeterminate term of life with the possibility of
parole consecutive to a determinate term of four years. Defendant’s judgment became
final in June 2001, after this court affirmed the judgment in an unpublished opinion,
People v. Kishor (Jan. 9, 2001, C034740).
1
In January 2024, defendant filed a motion in the trial court alleging his conviction
was obtained in violation of Penal Code section 745, the California Racial Justice Act of
2020 (the Racial Justice Act).1 The trial court dismissed the motion, concluding it did not
have jurisdiction to entertain such a motion after defendant’s case was final. The trial
court did, however, grant a separate motion to vacate certain fees under newly enacted
Government Code section 6111, but denied defendant’s request for a hearing to
determine his ability to pay the remaining fines and fees under People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas), concluding Dueñas did not apply retroactively to final
cases.
Defendant now contends the trial court erred in (1) dismissing his motion for relief
under the Racial Justice Act, and (2) denying his request for an ability-to-pay hearing.
Because the challenged orders are nonappealable, we will dismiss his appeal.
DISCUSSION
I
Defendant contends the trial court erred in dismissing his motion for relief under
the Racial Justice Act. The People counter that the trial court lacked jurisdiction to
entertain the motion because defendant’s judgment became final in June 2001. We agree
with the People.
Regarding the retroactivity of the Racial Justice Act, and as relevant to this case,
section 745, subdivision (j)(3) states that after January 1, 2024, the section applies to all
cases in which the defendant is serving a prison sentence and files a petition for writ of
habeas corpus. Here, defendant did not file a habeas corpus petition.
Defendant sought to have his final convictions and sentence vacated and declared
legally invalid. The “general rule is that ‘once a judgment is rendered and execution of
1 Undesignated statutory references are to the Penal Code.
2
the sentence has begun, the trial court does not have jurisdiction to vacate or modify the
sentence.’ [Citations.]” (People v. King (2022) 77 Cal.App.5th 629, 634 (King).) In
other words, “[w]here the trial court relinquishes custody of a defendant, it also loses
jurisdiction over that defendant.” (People v. Karaman (1992) 4 Cal.4th 335, 344
(Karaman); see People v. Vasquez (2016) 247 Cal.App.4th 513, 518-519.)
“There are important exceptions to this rule. Section 1170.03, subdivision (a)
gives a trial court the authority to recall a sentence on its own motion within 120 days of
the defendant’s remand, or at any time upon a request by various law enforcement
officials. [Citation.] The Legislature has also created other specific statutory avenues for
incarcerated defendants to seek resentencing in particular cases. [Citations.] If a
modification does not make a substantive change to a sentence but simply corrects a
clerical error, the trial court has the inherent power to correct its own records at any
time.[2] [Citation.] And a trial court may of course rule on a defendant’s challenge to an
unlawful sentence in a properly filed petition for a writ of habeas corpus.” (King, supra,
77 Cal.App.5th at p. 637.)
Here, the trial court concluded it lacked jurisdiction to entertain defendant’s
motion, and that defendant would be required to seek the requested relief by filing a
petition for writ of habeas corpus. Defendant argues this was error because section 745
allows a defendant to seek relief by filing a motion. Not so. Although section 745,
2 There is disagreement in the case law as to whether an unauthorized sentence may
also be corrected by the trial court at any time, even after the judgment is final and
the trial court has otherwise lost jurisdiction over the defendant. (See King, supra,
77 Cal.App.5th at p. 637 [“unauthorized sentence doctrine . . . does not itself create
jurisdiction for the trial court to rule on a motion challenging the legality of a sentence”];
People v. Boyd (2024) 103 Cal.App.5th 56, 65-69 [same]; cf. People v. Codinha (2023)
92 Cal.App.5th 976, 992-993 [disagreeing with King].) Defendant does not specifically
argue that he is serving an unauthorized sentence now that section 745 has taken effect.
Any such argument is therefore forfeited.
3
subdivision (b) does state that “[a] defendant may file a motion pursuant to this section,”
defendant’s argument takes the language out of context. The full sentence reads:
“A defendant may file a motion pursuant to this section, or a petition for writ of habeas
corpus or a motion under Section 1473.7, in a court of competent jurisdiction, alleging a
violation of subdivision (a).” (§ 745, subd. (b), italics added.) Thus, section 745
provides three different methods for obtaining relief, i.e., a motion under section 745,
a petition for writ of habeas corpus, and a motion under section 1473.7,3 and reaffirms
that for any such method to be effective, the court must have jurisdiction.
Subdivision (b) continues: “For claims based on the trial record, a defendant may
raise a claim alleging a violation of subdivision (a) on direct appeal from the conviction
or sentence. The defendant may also move to stay the appeal and request remand to the
superior court to file a motion pursuant to this section.” (§ 745, subd. (b).) The only
reason a defendant would need to stay the appeal and request remand in order to file a
motion under section 745 is that the trial court would otherwise lack jurisdiction to
entertain such a motion while the appeal was pending. (See People v. Cress (2023)
87 Cal.App.5th 421, 424-425.) This again confirms the Legislature’s understanding that
in order for a motion under section 745 to be considered, the trial court would need
jurisdiction to consider it.
And, as mentioned above, section 745, subdivision (j)(3) also states that an
incarcerated defendant with a final judgment can obtain jurisdiction over a Racial Justice
Act claim by filing a habeas petition. To sum up, the statute provides that a defendant
may obtain relief (1) before a judgment is entered, by filing a motion in the trial court
3 Section 1473.7 allows a person who is no longer in criminal custody to file a motion to
vacate a conviction or sentence. (§ 1473.7, subd. (a).) Although defendant’s motion
under section 745 checked a box indicating it was also made under section 1473.7, the
record indicates defendant remained in criminal custody at the time his motion was
dismissed by the trial court.
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under section 745; (2) after a judgment is entered and while a direct appeal is pending,
by seeking relief from the appellate court or by obtaining a stay of the appeal and filing
a motion in the trial court; or (3) after a judgment is final, by filing a petition for writ
of habeas corpus.
Viewing the relevant statutory language in context, as we must, we conclude it
does not create an exception to the general rule that “[w]here the trial court relinquishes
custody of a defendant, it also loses jurisdiction over that defendant.” (Karaman, supra,4 Cal.4th at p. 344.) Because the trial court lacked jurisdiction to rule on defendant’s
motion to vacate his convictions and sentence under section 745, the order dismissing the
motion is not appealable because it “could not have affected his substantial rights.”
(People v. Fuimaono (2019) 32 Cal.App.5th 132, 135; see King, supra, 77 Cal.App.5th at
p. 634; § 1237, subd. (b).)
II
Defendant also claims the trial court, while properly vacating certain fees under
Government Code section 6111, nevertheless erred in denying his request for an ability-
to-pay hearing under Dueñas, supra, 30 Cal.App.5th 1157. The People respond that the
trial court could not apply Dueñas retroactively to defendant’s final judgment and,
therefore, the challenged order is not appealable because it also does not affect his
substantial rights. We again agree with the People.
The trial court denied defendant’s request for an ability-to-pay hearing because
“no appellate court has applied Dueñas retroactively to final cases.” Defendant does not
dispute that particular trial court conclusion, and we have found no appellate decision
applying Dueñas retroactively to a final judgment.
Rather, in People v. Jinkins (2020) 58 Cal.App.5th 707, the appellate court
dismissed an appeal where the defendant filed a motion under Dueñas after execution of
his sentence had begun. The court explained that such a motion did not fall within any
exception to the general rule that once a judgment is rendered and execution of the
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sentence has begun, the trial court does not have jurisdiction to vacate or modify the
sentence. (Id. at p. 713.) Here, although the trial court possessed jurisdiction to vacate
the jail booking and classification fees under Government Code section 6111, that section
does not authorize a claim under Dueñas. Because defendant is not entitled to retroactive
application of Dueñas to his final judgment, the order denying his request for an ability-
to-pay hearing is not appealable because it could not have affected defendant’s
substantial rights.
DISPOSITION
The appeal is dismissed.
/S/
MAURO, Acting P. J.
We concur:
/S/
KRAUSE, J.
/S/
MESIWALA, J.
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