Opinion
E082064
04-18-2024
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL J. SINGH, Defendant and Appellant.
Michael J. Singh, in pro. per.; Robert L. Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. FSB1402703. Steve Malone, Judge. Affirmed.
Michael J. Singh, in pro. per.; Robert L. Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MILLER Acting P. J.
Defendant and appellant Michael Singh appeals from the trial court's order denying his petition for resentencing pursuant to Penal Code former section 1170.95 (now renumbered section 1172.6). For the reasons set forth post, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
STATEMENT OF THE CASE
On December 29, 2015, a jury convicted defendant of first degree murder under section 187, subdivision (a) (count 1); attempted murder under sections 664 and 187, subdivision (a) (counts 2 &3); and street terrorism under section 186.22, subdivision (a) (count 4). "The jury also found true the following: (1) a principal personally discharged a firearm causing great bodily injury or death under Penal Code section 12022.53, subdivisions (d) and (e)(1) as to counts 1 through 3; (2) a principal discharged a firearm under Penal Code section 12022.53, subdivisions (c) and (3)(1); and (3) the offenses were committed for the benefit of a criminal street gang under Penal Code section 186.22, subdivision (b)(1)(C). Moreover, the jury found the murder in count 1 to be first degree murder, and that the attempted murders were willful, deliberate, and premeditate[ed]." (People v. Singh (Dec. 11, 2020, E075484) [nonpub. opn.], *1.)
On March 20, 2017, the trial court sentenced defendant to an indeterminate term of 135 years to life and a consecutive determinate term of 48 years.
After defendant appealed, this court reversed defendant's convictions for attempted murder (counts 2 &3) and remanded the case for resentencing in People v. Singh (Nov. 22, 2019, E067985) [nonpub. opn.].)
On July 31, 2020, the trial court held a resentencing hearing for defendant. The court sentenced defendant to 50 years to life for the murder conviction, and a concurrent three years for the street terrorism conviction.
On January 10, 2022, defendant filed a petition for resentencing under section 1172.6. In the petition, defendant contended that an information was filed against him that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine, or other theory in which malice is imputed to a person based solely on that person's participation in a crime; defendant was convicted of murder following a trial; and he could not presently be convicted of murder because of changes to the law.
On June 27, 2022, the People filed opposition to the petition. The People argued "[t]he record of conviction shows as a matter of law that the petitioner was not convicted of murder under either the felony murder theory or under the natural and probable cause doctrine." With the opposition, the People attached exhibits, which included the information, jury instructions, jury verdict, minute orders, and abstract of judgment.
On November 1, 2022, defendant filed his reply to the People's opposition. The People filed a response to defendant's reply on November 23, 2022, which included exhibits.
On September 1, 2023, the trial court held a hearing on defendant's petition for resentencing. At the hearing, the court stated, "We are here this morning to determine whether or not [defendant] has stated a prima facie case for relief in his petition for resentencing."
Defense counsel argued that defendant was "clearly not the shooter" and "not present at the time of the shooting." Counsel then argued that under "the recent Appellate Court decision [in] People v. Langi [(2022) 73 Cal.App.5th 972], the defendant is entitled to issuance of an OSC and entitled to relief." Defense counsel then conceded "that the actual natural and probable consequence jury instruction was not given." Counsel, however, stated that "there was an instruction dealing with the discharge of a firearm and the death was a natural and probable consequence of that felony behavior, then liability can be attributed to [defendant]. I don't quite recall the instruction, but I think the Court is familiar with the instruction that I'm referring to and it's in my brief." Defense counsel then went on to state that if malice could have been imputed to defendant, that "would warrant a hearing under 1172.6 subdivision (D)(3)."
After the court stated, "I read all of your arguments in the paper that you submitted as well," it asked the prosecutor to speak. The prosecutor noted that defense "counsel's argument is basically premised on how Langi and some other cases which discuss the issue of implied malice theory of second degree murder and the jury instructions. [¶] What [defense counsel] basically articulated was that the instruction was not sufficient and because the instruction was not sufficient for second degree murder implied malice of second degree murder, that defendant had established a prima facie basis and thus was eligible for an OSC hearing. [¶] That is not the case here. The defendant was not convicted of second degree murder. The defendant was convicted of first degree murder. And the only theories of first degree murder that the jury was given was willful, premeditate[d], and deliberate and-murder during commission of a drive-by shooting." The prosecutor also argued that "[b]oth of those theories required intent to kill, specifically being found by the jury. By the jury finding him guilty of first degree murder, they determine[d] that he acted as an aider and abettor with intent to kill. Thus he will be ineligible under the law. [¶] This is not a felony murder case. This is not a natural and probable consequences case. And the decision of Langi aren't applicable because it's a first degree murder conviction."
After hearing argument from defense counsel and the prosecutor, the court stated: "The Court's ruling is to find that the petition fails to establish a prima facie case for relief and to deny the petition. The Court will, as always, explain further. The Court is not engaged in a position of factfinding today. The Court is simply looking at the record and there is no probability-or possibility that malice was imputed to [defendant]. [¶] The record clearly shows that the jury made a specific finding that he acted willfully, deliberately, with premeditation, and he acted with intent to kill the victim."
On September 5, 2023, defendant filed a notice of appeal.
DISCUSSION
Counsel has filed a brief under the authorities of People v. Wende (1979) 25 Cal.3d 436, Anders v. California (1967) 386 U.S. 739, and People v. Delgadillo (2022) 14 Cal.5th 216. In the brief, pursuant to Anders, appellate counsel has identified the following issue to assist the court in its search of the record for error: "Might the jury have convicted appellant on a natural and probable consequences theory because the jury instruction for murder used a definition of implied malice that included the phrase 'natural and probable consequences?' "
On January 30, 2024, we sent notice to defendant regarding the filing of a Delgadillo brief, as follows: "Counsel for appellant has filed a brief stating no arguable issues can be found. Because this is an appeal from the denial of a post-conviction proceeding, this court is not required to conduct an independent review of the record but may do so in its discretion. (People v. Delgadillo (2022) 14 Ca1.5th 216 []; People v. Serrano (2012) 211 Cal.App.4th 496.) The appellant is personally granted 30 days to file any supplemental brief deemed necessary. If appellant files a supplemental brief, this court will evaluate the specific arguments presented in that brief in its opinion. (Delgadillo, supra, 14 Ca1.5th 216[.]) Failure to timely file a supplemental brief may result in the dismissal of the appeal as abandoned."
On March 29, 2024, defendant filed a seven-page handwritten supplemental brief with exhibits. In the brief, defendant argues that the trial court erred in finding that "there was no possibility that malice was imputed unto petitioner based solely on his participation in a crime." In support of his argument, defendant contends that the court "erred in placing dispositive weight on the jury finding that petitioner intended to kill. An intent to kill finding does not as a matter of law establish the elements of aiding and abetting first degree murder." Moreover, defendant argues that "nothing in the instructions on malice aforethought and premeditated first degree murder unambiguously directed the jury to determine petitioner's personal mental state as an aider and abettor." Defendant contends that "malice was imputed unto petitioner based solely on his participation within a crime." Furthermore, defendant argues that the jury "instructions as a whole allow for petitioner to be convicted of murder and attempted murder if petition aided and abetted the gang confrontation."
Defendant's arguments lack merit. As the trial court stated at the hearing on defendant's petition, "[t]he record clearly shows that the jury made a specific finding that [defendant] acted willfully, deliberately, with premeditation, and he acted with intent to kill the victim." "[T]he jury signed verdict form 1(A) which is guilty of first degree murder. In order to reach that decision, the jury was instructed in CALCRIM 520,which instructs the jury that in order to find [defendant] guilty of murder, they must find that he acted with malice. [¶] The jury was further instructed under CALCRIM 521that before they conclude that [defendant] is guilty of first degree murder, they must be convinced beyond a reasonable doubt that [defendant] acted willfully, deliberately, with premeditation, and that he intended to kill [the victim]. [¶] Since the jury found the defendant guilty of first degree murder, the only conclusion that can be drawn is that the jury believe[d] [defendant] acted deliberately with premeditation and intent to kill."
Verdict Form 1-A stated: "We, the jury . . ., find the defendant, MICHAEL J. SINGH, guilty of the crime of FIRST DEGREE MURDER, in violation of PENAL CODE SECTION 187(a), as to Count 1."
A copy CALCRIM No. 520, as instructed to the jury, is attached to the People's opposition to defendant's petition, and as an exhibit to defendant's supplemental brief.
A copy CALCRIM No. 521, as instructed to the jury, is attached to the People's opposition to defendant's petition, and as an exhibit to defendant's supplemental brief.
Based on the above and our independent review of the record, we find that the trial court correctly determined defendant is ineligible for relief under section 1172.6. (Delgadillo, supra, 12 Cal.5th at p. 233.)
DISPOSITION
The order denying defendant's petition for resentencing under section 1172.6 is affirmed.
We concur: CODRINGTON J., MENETREZ J.