People v. Singh CA1/3 ( 2024 )

Filed 10/18/24 P. v. Singh CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A168215
v.
KAMALPREET SINGH, (Alameda County Super. Ct.
No. 20CR011941)
Defendant and Appellant.
Defendant Kamalpreet Singh appeals his conviction of second degree
murder. Singh asserts the police failed to provide an adequate Miranda1
warning, the trial court abused its discretion in allowing a deputy to be
posted in the courtroom during his testimony, and the trial court made
various instructional errors. He further contends the court violated his
constitutional rights by imposing fines without first assessing his ability to
pay.
We conclude the court failed to exercise its discretion in determining
whether the deputy’s presence was appropriate and erred by instructing the
jury with CALCRIM No. 361. Finding those errors harmless, and finding no
other basis for reversal, we affirm the judgment.
1 Miranda v. Arizona (1966) 384 U.S. 436.
1
FACTUAL AND PROCEDURAL BACKGROUND
Factual Background
Singh was employed by Manjeet “Jay” Summan at Summan Trucking
Company. Summan helped Singh purchase a green Cadillac Escalade sports
utility vehicle (SUV). On both the day of the incident and the previous day,
surveillance cameras recorded Singh at different convenience stores with the
SUV.
In the early evening of April 8, 2020, Anthony Garza and his friends
were in a shopping center parking lot, smoking marijuana in a friend’s
vehicle. Garza’s vehicle was parked next to them. Singh’s green Escalade
SUV pulled in front of the friend’s car and drove by slowly, during which the
driver gestured and “mean-mugged” them. The SUV then “almost did a circle
around us” before quickly leaving.
Approximately twenty minutes later, the SUV returned and parked
adjacent to the passenger side of Garza’s vehicle. Garza, who was sitting in
his car at the time, exited his vehicle and walked around to the passenger
side of his vehicle. A witness testified Garza was standing next to the
passenger side door of his car and “there was a gap” between his car and the
SUV; Garza “w[as]n’t up against the Escalade.” Just prior to the shooting
“everything” “seemed normal.” Garza was shot once in the chest, after which
the SUV immediately drove away. This encounter only lasted approximately
ten seconds.
Police responded to the shooting and found Garza bleeding but
coherent. Garza was unarmed. When asked who shot him, Garza responded,
“I don’t know. Dude just pulled up on me.” He identified the shooter’s
vehicle as a dark green Escalade. Garza subsequently died at the hospital.
2
Traffic cameras recorded the SUV traveling away from the shopping
center immediately following the shooting. Approximately an hour and a half
later, a traffic camera recorded the SUV driving in the immediate vicinity of
Summan Trucking Company. Police subsequently recovered the SUV from
Summan Trucking Company.
Approximately five months later, police arrested Singh in Denver,
Colorado. During the subsequent police interview, Singh admitted he had
shot Garza. He stated Summan had asked him to kill Garza because of a
dispute between Summan and Garza, and he had agreed to do so because he
needed money.
Procedural Background
The Alameda County District Attorney filed an information charging
Singh with murder (Pen. Code,2 § 187, subd. (a); count 1). The information
further alleged personal and intentional discharge of a firearm (§§ 12022.7,
subd. (a), 12022.53, subd. (d)) and infliction of great bodily injury (§ 12022.7).
During trial, the prosecution offered the police interview containing
Singh’s confession into evidence. Singh testified in his defense and denied
shooting Garza. He asserted Garza and Summan had an ongoing
disagreement, and Summan took his SUV. When he confronted Summan
about using the SUV, Summan responded that he would take care of it, “And
if you mention it to somebody, then worry about your family.” Summan also
told him to leave the area. Singh stated he lied to police during the interview
because he was worried about his family.
The jury found defendant guilty of second degree murder. The trial
court sentenced defendant to a prison term of 15 years to life for murder, and
25 years to life for the discharge of a firearm causing death.
2 All further undesignated statutory references are to the Penal Code.
3
DISCUSSION
Singh raises four main arguments on appeal. First, he contends the
police failed to provide a proper Miranda warning during his in-custody
interview, and he did not waive any Miranda rights. Second, Singh contends
the court abused its discretion by allowing the sheriff’s department to
position a uniformed deputy between himself and the jury during his
testimony. Third, Singh asserts he was denied a fair trial because the court
instructed the jury with CALCRIM No. 361 without any support for the
instruction. Fourth, Singh argues the court erred in refusing to instruct the
jury with CALCRIM No. 571. Singh also contends these multiple errors
cumulatively deprived him of a fair trial. Finally, Singh challenges the
imposition of certain fees without a showing of ability to pay. We address
each argument in turn.
I. In-Custody Police Interview
Singh contends his Miranda waiver was invalid and his statement was
involuntary because the police advised him of the Miranda warnings in
English and the entire interview was conducted in English. Singh asserts the
evidence does not support a finding that he sufficiently understood English to
knowingly waive his constitutional rights.
A. Relevant Law
“ ‘Miranda holds that “[t]he defendant may waive effectuation” of the
rights conveyed in the warnings “provided the waiver is made voluntarily,
knowingly and intelligently.” [Citation.] The inquiry has two distinct
dimensions. [Citations.] First, the relinquishment of the right must have
been voluntary in the sense that it was the product of a free and deliberate
choice rather than intimidation, coercion, or deception. Second, the waiver
must have been made with full awareness of both the nature of the right
4
being abandoned and the consequences of the decision to abandon it. Only if
the “totality of the circumstances surrounding the interrogation” reveals both
an uncoerced choice and the requisite level of comprehension may a court
properly conclude that the Miranda rights have been waived.’ ” (People v.
Combs (2004) 34 Cal.4th 821, 845.)
“[A] suspect who desires to waive his Miranda rights and submit to
interrogation by law enforcement authorities need not do so with any
particular words or phrases. A valid waiver need not be of predetermined
form, but instead must reflect that the suspect in fact knowingly and
voluntarily waived the rights delineated in the Miranda decision. [Citation.]
We have recognized that a valid waiver of Miranda rights may be express or
implied. [Citations.] A suspect’s expressed willingness to answer questions
after acknowledging an understanding of his or her Miranda rights has itself
been held sufficient to constitute an implied waiver of such rights.
[Citations.] In contrast, an unambiguous request for counsel or a refusal to
talk bars further questioning.” (People v. Cruz (2008) 44 Cal.4th 636, 667–
668.)
In assessing the totality of the circumstances to determine if the
defendant gave a valid Miranda waiver, and whether his statement was
voluntary for due process purposes, the court considers the “background,
experience, and conduct of the accused” (People v. Davis (2009) 46 Cal.4th
539, 586), including the defendant’s language abilities. (United States v.
Bernard S. (9th Cir. 1986) 795 F.2d 749, 751, disapproved on other grounds
in United States v. Dozier (9th Cir. 1988) 844 F.2d 701, 706.)
A defendant’s language abilities may impair his ability to give a
knowing and intelligent waiver and render his statement involuntary. (See,
e.g., United States v. Heredia-Fernandez (9th Cir. 1985) 756 F.2d 1412, 1415–
5
1416.) “Language is not a stumbling block when the suspect is advised of his
rights also in a language that he ostensibly understands. [Citation.] It
becomes a more difficult problem when the Miranda rights are given in
English only. In these instances, the courts consider what effort the officer
made to communicate, whether the defendant responded that he understood
his rights or ever indicated that he did not understand them, and what the
defendant displayed in English language skills.” (United States v. Castorena-
Jaime (D. Kan. 2000) 117 F.Supp.2d 1161, 1171.)
Even where a defendant has limited skills in English, however, he may
knowingly, intelligently, and voluntarily waive his Miranda rights, provided
the totality of the circumstances indicates he understood those rights when
he waived them. (See People v. Salcido (2008) 44 Cal.4th 93, 127–128; United
States v. Amano (9th Cir. 2000) 229 F.3d 801, 804–805.)
The prosecution must establish “the voluntariness of defendant’s
waiver and confession . . . by a preponderance of the evidence.” (People v.
Whitson (1998) 17 Cal.4th 229, 248.) On appeal, we conduct an independent
review of the trial court’s legal determinations. (People v. Williams (2010) 49
Cal.4th 405, 425.) When an interview is tape-recorded, the facts surrounding
an admission or confession are undisputed, making the issue subject to our
independent review. (People v. Linton (2013) 56 Cal.4th 1146, 1176–1177.)
B. Relevant Background
Singh initially sought to suppress evidence of the police interview and,
when that motion was rejected, moved to dismiss the information on the
basis that the magistrate judge erroneously denied his motion to suppress.
Singh alleged the police failed to provide an adequate and meaningful
advisement of his right to counsel during the interrogation, and he was
subjected to psychological interrogation techniques. During argument, Singh
6
also noted the police never offered him an interpreter or sought to determine
“whether [Singh] understood exactly what was going on.”
Following argument by counsel, the trial court rejected the motion to
dismiss. As relevant to this appeal, the court noted Singh “did not have any
questions about his rights, he never asked for an attorney at any time and
never asked that any questioning should cease. And the answers seemed to
be responsive to the questions, and if I can describe it, it seemed
conversational.”
Singh subsequently filed a motion in limine to suppress his statement
to the police. In response, the court conducted a hearing pursuant to
Evidence Code section 402 to address the admissibility of Singh’s statements
to police. Detective Brent Butcher was the sole witness; Singh did not testify.
The recording of the police interview was submitted to the court for its
review.
Detective Butcher testified that he advised Singh of his Miranda rights
from memory. After reciting the rights, Detective Butcher asked Singh if he
understood his rights. Singh responded in English, “Yeah.” Detective
Butcher testified that it appeared to him that Singh understood his rights.
Detective Butcher acknowledged that he was aware English was not Singh’s
first language and “potentially [Singh] did not speak English very well.”
Accordingly, Detective Butcher stated he had an interpreter option available.
However, Detective Butcher did not utilize the interpreter because he “did
not feel we needed to”; he felt Singh understood his questions, answered them
directly, and he understood Singh’s answers. Detective Butcher noted Singh
did not request an interpreter, and Singh did not invoke his right to remain
silent.
7
The transcript of the interview also indicates that Singh and the
detectives were able to communicate. With few exceptions, Singh never
indicated during the interview that he did not understand any of the
questions asked by the detectives or was confused by any terminology used by
the detectives. Rather, the only discussion about comprehension was when
Singh asked the detectives if they “understand my English,” to which they
responded affirmatively. And any temporary confusion between Singh and
the police—such as mistaking “temple” for “Tampa,” a mistake that could
have also been made by a native English speaker—was quickly clarified.
The court concluded Singh’s statements to the police were admissible.
On the issue of a translator, the court found the interview to be “a free-
flowing, back-and-forth exchange between the detectives and [Singh]. The
vast majority of clarifications that came about in terms of questioning largely
had to do with people involved, the events that were involved, the chain of
events as they were set forth, questions about days and questions about times
and questions about location. . . . [¶] I will concede there was a word here or
there that [Singh] appeared to struggle with, but eventually either found the
word, or . . . the detectives were able to quickly discern what it was he was
trying to say . . . . But, again, it appeared to this Court that although
[Singh’s] first language might not be English, he certainly appeared to be
fully conversant in the English language from the beginning of the interview
to the end.”
C. Analysis
Having reviewed the entire audio-recording of the detectives’ interview
of Singh, we find that Singh’s Miranda waiver was knowing and intelligent,
and his statements were not involuntary or obtained in violation of due
process. When Detective Butcher advised Singh of the entirety of the
8
Miranda warnings in English, and asked if he understood, Singh responded
affirmatively and in English.
Singh then proceeded to converse with the detectives—exclusively in
English—throughout the entire interview. The record indicates Singh
understood and appropriately responded to questions, giving information
about his background (e.g., whether he had been previously arrested, his
name and date of birth, his current and past residences) and his employment
with Summan. When Singh was asked to explain inconsistencies in his
initial story, such as how his SUV was involved in the shooting if Singh was
not driving it, Singh responded, “my boss he could drive.” In responding
rationally and appropriately to the questions, Singh showed he had a
sufficient understanding of English.
During the interview, Singh used more complex English words, such as
referencing the SUV’s “grille” and using the term “murder” before the phrase
was mentioned by the police Singh also demonstrated a substantial
understanding of English by attempting to bargain with them before
providing a confession: “so I need a guarantee who gonna save my parents in
India” before giving his confession. He then explained—in English—the
political situation impacting his parents, noting his parents’ situation “is very
bad there” because he “supported Kazakhstan” and asked if the detectives
knew Kazakhstan. Singh explained, because of his support of Kazakhstan,
his “dad had a[n] accident” and “so we need the money for house [sic].” He
explained his sister was “settle[d] in Canada” and “good,” but caring for his
parents was his responsibility as “the boy.” Singh then proceeded to give a
detailed summary of events, stating that his boss offered to pay him to kill
Garza because Summan had “some issue with him.” Singh explained he
“needed money” and Summan “pressured” him and gave him a gun. Singh
9
also explained how Summan ultimately never paid him, complaining “Look I
did this bullshit and he not give me more money.”
The record reflects that Singh was comfortable asking questions of the
detectives when he felt it was needed. But Singh never stated he did not
understand any questions or otherwise struggled to comprehend English
during the interview. Nor do his responses to the questions indicate any
meaningful inability to comprehend English. To the extent some of Singh’s
responses may have been disjointed or nonlinear, nothing in the record
suggests those responses were based on a misunderstanding of English.
Rather, our task is to view any such rambling responses in the context of the
entire interview. And viewed in such context, Singh’s responses demonstrate
a solid understanding of English.
Accordingly, based on the totality of the circumstances, we conclude
Singh was adequately informed of his Miranda rights, and he had the
capacity to—and did—knowingly and intelligently provide an implied waiver
of those rights. (See United States v. Rodriguez-Preciado (9th Cir. 2005) 399
F.3d 1118, 1127–1128 [“The district court’s finding that Rodriguez–Preciado’s
alleged difficulty with English did not prevent him from knowingly and
intelligently waiving his Miranda rights was not clearly erroneous. . . .
Rodriguez–Preciado ‘indicated that he understood his rights after they were
explained to him,’ [citation], and the district court found that, except for some
confusion regarding the word ‘methamphetamine,’ there was ‘no indication by
any of the officers that Mr. Rodriguez had difficulty understanding English
nor that the officers had trouble understanding his English.’ ”].) The trial
court did not err in finding the interview admissible.3
3 Because we find no error in admitting the statements, we need not
address Singh’s arguments regarding prejudice.
10
II. Placement of Deputy in Courtroom
Singh next contends the trial court abused its discretion by permitting
a sheriff’s deputy to sit between him and the jury midway through his
testimony. He asserts the presence of a uniformed deputy was prejudicial
and deprived him of a fair trial because it suggested there had been a
determination that he posed a danger.
A. Relevant Background
The record does not directly reflect when the sheriff’s deputy entered
the courtroom and where he or she sat. Accordingly, we consider the facts as
set forth in the parties’ subsequent arguments to the trial court as discussed
below.
After the court adjourned for the day, the court allowed defense counsel
to “lodge an objection to the procedure employed as it relates to having a
sheriff’s deputy in – well, with your client while he’s testifying.” Defense
counsel then set forth the following objection: “I would lodge an objection to
having the deputy sit, I would say relatively close to my client, specifically
next to the jurors. [¶] I think it displays an implication of dishonesty,
dangerousness, and a sense of guilt towards Mr. Singh as he testifies. [¶] I
do not believe he’s got a history at all whatsoever of any violent outbursts or
disrespect to this Court.· I think he’s been pretty obedient and respectful
throughout this process.· So I would object, or I just want to lodge an
objection to having the deputy sitting next to my client in the presence of the
jury under U.S. Constitution due process.”
The court then responded: “I would concur with your observations that
Mr. Singh has been more than compliant with any and all court orders.· He
hasn’t been disruptive at all, not even close. [¶] However, that’s not the
standard by which the Sheriff’s Department determines how it handles
11
custodial defendants, especially when they opt to testify. [¶] I think it’s
important to note that it’s essentially standard operating procedure to have a
deputy somewhere near an in-custody defendant while they testify. [¶] I
think it’s also important to note that each of the deputies has sat some
distance away, in stark contrast to . . . when on many occasions they sit right
in the witness box with them.· That’s certainly not the case here.· I don't
know if after a while if you notice the deputies were there.· Again, that’s their
call.· It’s their purview.· It’s not a court call and it’s not something I’m
inclined to disrupt.” The court further noted it would give a jury instruction
about a defendant testifying while in custody, which it thought would
“address[ ] any and all issues that the defense might be concerned about.”
B. Analysis
“Decisions to employ security measures in the courtroom are reviewed
on appeal for abuse of discretion.” (People v. Hernandez (2011) 51 Cal.4th
733, 741 (Hernandez).) The propriety of stationing a deputy near a defendant
during his or her testimony was addressed by the California Supreme Court
in two decisions, People v. Stevens (2009) 47 Cal.4th 625 (Stevens) and
Hernandez, supra, 51 Cal.4th 733. In Stevens, the California Supreme Court
held that the presence of a deputy—provided he or she “maintains a
respectful distance from the defendant and does not behave in a manner that
distracts from, or appears to comment on, the defendant’s testimony”—is not
inherently prejudicial. (Stevens, supra, 47 Cal.4th at pp. 639, 644.) However,
the court noted “the trial court must exercise its own discretion in ordering
such a procedure and may not simply defer to a generic policy.” (Id. at
p. 644.) The court further explained “[t]he trial court should state its reasons
for stationing a guard at or near the witness stand and explain on the record
12
why the need for this security measure outweighs potential prejudice to the
testifying defendant.” (Id. at p. 642.)
In Hernandez, the trial court did not follow the procedure set forth in
Stevens, i.e., “the trial court’s decision to station a deputy at the witness
stand during defendant’s testimony was not based on a thoughtful, case-
specific consideration of the need for heightened security, or of the potential
prejudice that might result.” Rather, “[t]he court asserted that it had seen a
deputy at the witness stand ‘in every trial I’ve ever done . . . because of
security’ ” and “refused to make an individualized finding that defendant’s
behavior warranted this heightened security measure. . . . These remarks
reveal that the court was following a general policy of stationing a courtroom
officer at the witness stand during any criminal defendant’s testimony,
regardless of specific facts about the defendant or the nature of the alleged
crime.” (Hernandez, supra, 51 Cal.4th at p. 743.) The court explained that
while stationing a deputy near a defendant during his or her testimony “is
not inherently prejudicial,” the trial court’s failure to exercise its own
discretion apart from deferring to generic policy constituted an abuse of
discretion. (Id. at pp. 742, 744.)
The California Supreme Court further concluded, however, that the
error was harmless. (Hernandez, supra, 51 Cal.4th at p. 746.) It explained
“nothing in the record suggests that this deputy’s demeanor was anything
other than respectful,” “the jury had little indication that defendant was in
protective custody,” and “the evidence presented at trial strongly supports
the jury’s verdict.” (Id. at pp. 746–747.)
Here, the trial court—as in Hernandez—did not exercise its own
discretion and instead referenced the Sheriff’s Department’s “standard
operating procedure to have a deputy somewhere near an in-custody
13
defendant while they testify” and stated the placement of a deputy is “their
purview” and “not a court call.” In so holding, the trial court misunderstood
its role and failed to properly exercise its discretion.
However, we find such error harmless. (See Hernandez, supra, 51
Cal.4th at pp. 744–745 [harmless error standard of People v. Watson (1956)
46 Cal.2d 818, 837 (Watson) applies].)
First, as noted in the record, the deputy was not seated adjacent to
Singh or the witness box but rather next to the jury. As described by the trial
court, the deputy sat “sat some distance away” and was sufficiently
unobtrusive that the court thought people could forget he or she was present.
The location of the deputy thus does not raise the same concerns as when he
or she is, for example, directly adjacent to the defendant.
Second, defense counsel expressly declined the court’s offer to instruct
the jury with CALCRIM No. 337 (witness in custody) because “all it does it
draw attention to something that I haven’t mentioned.” Instead, the court
simply instructed the jury “You must judge the testimony of each witness by
the same standards, setting aside any bias or prejudice that you might have.”
Third, the record indicates the deputy entered at some point during
Singh’s testimony. Since the deputy was not present for the entirety of
Singh’s testimony, a jury would not necessarily have assumed the deputy’s
presence was related to Singh’s testimony rather than for some other reason,
for example the deputy’s standard job duties in the courtroom.
Fourth and finally, Singh has not demonstrated that the presence of
the deputy affected the outcome. The record contained a compelling
confession given by Singh to the police, identification of his SUV as involved
in the shooting, and surveillance video of Singh driving the SUV on the day of
the shooting. (See People v. Winbush (2017) 2 Cal.5th 402, 461 [“[T]he
14
evidence against defendant was strong, much of it coming from his own
detailed statements to the police . . . . Given the compelling evidence of guilt,
it is not reasonably probable defendant would have obtained a more favorable
result absent the error.”].)
Accordingly, Singh has not demonstrated that it was reasonably
probable he would have received a more favorable result in the absence of the
error.
III. CALCRIM No. 361
Singh contends the court erred in instructing the jury with CALCRIM
No. 361, which addresses a defendant’s failure to explain or deny evidence.
He asserts he did not fail to explain or deny his incriminating statements to
police but rather contradicted those statements, which is not a valid basis for
the instruction. The Attorney General agrees the court erred in giving the
instruction, but asserts the error was harmless.
We agree the court erred by instructing the jury with CALCRIM No.
361. To determine whether a CALCRIM No. 361 instruction was improper,
we “ ‘ascertain if [the] defendant . . . failed to explain or deny any fact or
evidence that was within the scope of relevant cross-examination’ and was
‘within [the defendant's] knowledge which he did not explain or deny.’ ”
(People v. Grandberry (2019) 35 Cal.App.5th 599, 606; see People v. Cortez
(2016) 63 Cal.4th 101, 117 (Cortez) [instruction “applies only when a
defendant completely fails to explain or deny incriminating evidence, or
claims to lack knowledge and it appears from the evidence that the defendant
could reasonably be expected to have that knowledge”].) Testimony from the
defendant that is merely vague, improbable, or unbelievable is not enough to
support giving the instruction. (Cortez, at p. 117.)
15
Here, Singh testified he hung out alone at a park on the day of the
shooting, explained he lied about being the shooter in the police interview
because he was worried Summan would harm his family in India, and
categorically denied any involvement in the shooting. Accordingly, the court
lacked a valid basis to give the instruction.
However, we agree with the Attorney General that the error was
harmless. To obtain a reversal, Singh must show a reasonable probability
that he would have obtained a more favorable result at trial if the instruction
had not been given. (See Watson, supra, 46 Cal.2d at p. 836; People v.
Saddler (1979) 24 Cal.3d 671, 683–684 (Saddler) [assessing the harmlessness
of an instruction under CALJIC 2.62, the precursor to CALCRIM No. 361].)
He failed to do so.
CALCRIM No. 361 is a conditional instruction, leaving it to the jury to
determine, based on the jury’s view of the evidence, whether the instruction
applies. In particular, the instruction informed the jury that if Singh failed
to explain or deny evidence against him, and if he could reasonably be
expected to have done so based on what he knew, then the jury could—but
need not—consider his failure to explain or deny such evidence in evaluating
its weight. In addition, the trial court instructed the jury, pursuant to
CALCRIM No. 200, that “[s]ome of these instructions may not apply,
depending on your findings about the facts of the case,” the jury should “not
assume just because [the court gave] a particular instruction that [the court
was] suggesting anything about the facts,” and after deciding the facts the
jury was to “follow the instructions that do apply to the facts as you find
them.” We presume the jury followed CALCRIM No. 200. (People v. Cain
(1995) 10 Cal.4th 1, 34.) Thus, if CALCRIM No. 361 was given erroneously
because Singh had not failed to deny or explain adverse evidence within his
16
knowledge, the jury would have disregarded the instruction; any error in
giving it was therefore harmless. (Saddler, supra, 24 Cal.3d at p. 684; People
v. Vega (2015) 236 Cal.App.4th 484, 503 (Vega) [CALCRIM No. 200 mitigated
any prejudice from giving CALCRIM No. 361].)
And if the jury did find that CALCRIM No. 361 applied, the instruction
makes clear that Singh’s failure to explain or deny evidence “is not enough by
itself to prove guilt” and that the prosecution “must still prove the defendant
guilty beyond a reasonable doubt.” Rather than requiring the jury to draw an
adverse inference, the instruction allows the jury to “decide the meaning and
importance” of any failure to explain or deny. (People v. Ballard (1991) 1
Cal.App.4th 752, 756–757; People v. Lamer (2003) 110 Cal.App.4th 1463,
1472; Vega, supra, 236 Cal.App.4th at pp. 502–503.)
Finally, substantial evidence supported the jury verdict, regardless of
the CALCRIM No. 361 instruction. As previously discussed, the evidence
was undisputed that Singh’s vehicle—a green Cadillac Escalade SUV—was
involved in the shooting. Surveillance cameras captured Singh driving the
vehicle in the early morning hours of the day of the shooting as well as the
previous day. And Singh accurately described Garza’s movements and the
vehicle’s movements on the day of the shooting during the police interview.
Finally, a witness identified Singh as the possible driver of the Escalade,
stating she was “pretty sure that that’s who I seen driving the green
Escalade,” although she was not entirely certain. These facts, combined with
Singh’s confession during the police interview, amply support the jury
verdict.
Singh asserts the jury’s requests for readback of his testimony and the
police interview demonstrate that mens rea was a significant issue for jury
deliberations, the jury’s assessment of his credibility was critical, and the
17
instruction invited the jury to speculate as to what he failed to explain. He
thus argues the error was not harmless. But, as explained above, CALCRIM
No. 200 alerted jurors to the fact that some instructions may not apply; at
most, they would have assessed whether CALCRIM No. 361 was relevant.
And even if they erroneously found it applicable, CALCRIM No. 361 does not
instruct the jury to draw a negative inference based on a defendant’s failure
to explain or deny evidence. Rather, CALCRIM No. 361 simply advises the
jury that they may consider a defendant’s failure to explain or deny the
prosecution evidence and give it such weight as the jury deems appropriate.
Based on the instructions as a whole and substantial evidence of guilt,
we conclude instructing the jury with CALCRIM No. 361 did not constitute
prejudicial error.
IV. CALCRIM No. 571
Singh next asserts the trial court erred by refusing to give CALCRIM
No. 571 (imperfect self-defense). “Because imperfect self-defense reduces an
intentional, unlawful killing from murder to voluntary manslaughter by
negating the element of malice, this form of voluntary manslaughter is
considered a lesser and necessarily included offense of murder. [Citation.]
[¶] A trial court has a sua sponte duty to instruct the jury on a lesser
included uncharged offense if there is substantial evidence that would
absolve the defendant from guilt of the greater, but not the lesser, offense.
[Citation.] Substantial evidence is evidence from which a jury could conclude
beyond a reasonable doubt that the lesser offense was committed.
[Citations.] Speculative, minimal, or insubstantial evidence is insufficient to
require an instruction on a lesser included offense. [Citations.] [¶] We
review de novo a trial court’s decision not to give an imperfect self-defense
instruction.’ ” (People v. Simon (2016) 1 Cal.5th 98, 132–133 (Simon).)
18
A. Relevant Background
Defense counsel requested the court instruct the jury with CALCRIM
No. 571. Counsel argued “if the jury believes my client, in his interview with
police, there was mention of him observing potentially Mr. Garza reach for a
gun; there was some sense of fear. And I would say some talk about potential
argument or discussion of mean-mugging that was going on between them. . .
. That’s the factual basis for that request.” “Out of an abundance of caution,”
the prosecution did not object to the instruction.
The court declined to give the instruction, explaining “the doctrine of
imperfect self-defense is narrow,” and “[s]uch instruction is not required
unless there is substantial evidence to support the defense.” The court
further noted Singh, in his police statement, “admits to being the shooter and
briefly touches upon the fact, oh, I was scared. And then comes to court and
testifies, no, that was all baloney. It wasn’t even me. So I keep going back to
that. . . . [¶] . . . [And] if you believe his statement that he was, in fact, the
shooter, he drives into the Lucky’s lot, rolls around, comes upon Mr.
Garza. . . . He then leaves, . . . he had ample time to return to his home, grab
the firearm that he was pictured with, come back, drive immediately to
where Mr. Garza is and, in a matter of seconds, bang, bang, bang, out he
goes. [¶] So, again, I don’t see how any of that presents substantial evidence
that there’s self-defense of any kind.”
B. Analysis
Singh’s argument that he was entitled to a CALCRIM No. 571
instruction fails for two reasons. First, “[a]n instance of imperfect self-
defense occurs when a defendant acts in the actual but unreasonable belief
that he or she is in imminent danger of great bodily injury or death.” (Simon,
supra, 1 Cal.5th at p. 132.) To qualify as an imminent danger, “ ‘[t]he peril
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must appear to the defendant as immediate and present and not prospective
or even in the near future. An imminent peril is one that, from appearances,
must be instantly dealt with.’ ” ’ ” (People v. Manriquez (2005) 37 Cal.4th
547, 581, italics omitted.) “ ‘Fear of future harm—no matter how great the
fear and no matter how great the likelihood of the harm—will not suffice.’ ”
(Ibid.)
Singh argues there was a factual basis for the instruction because he
stated in his police interview that Garza “come to me.” He further stated he
“think [Garza] has a gun” and “trying to kill me,” so he was scared and
“before he shoot me, I shoot him.” However, Singh also stated he had already
decided to kill Garza after first seeing him in the parking lot because he
“pray to God” and decided Garza “is not a very good guy.” After returning to
the parking lot, Singh stated he “promised to God” that if Garza approached
him, he would shoot Garza, but if Garza did not approach him then he would
not shoot Garza. Neither of these statement suggest the shooting was the
result of an imminent fear of great bodily injury or death.
In total, Singh’s statements do not constitute substantial evidence from
which a jury could conclude Singh acted in imperfect self-defense; i.e., that
Singh actually believed he was in imminent danger of great bodily injury or
death. At most, they reflect a fear of harm at some point in the near future.
Singh did not state he saw Garza holding a gun or making any motions that
he believed were reaching for a gun. Nor did Singh state that Garza made
any comments or gestures threatening to harm Singh. Rather, Singh
provided generic statements that he believed Garza had a gun and wanted to
kill him. But these statements do not indicate that Singh believed Garza was
in the act of attempting to do so when Singh shot him. To the contrary,
Singh stated he had decided to shoot Garza if Garza approached his vehicle.
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Accordingly, the evidence does not reflect a genuine belief by Singh that he
was in imminent danger of great bodily injury or death.
Singh’s argument that he was entitled to a CALCRIM No. 571
instruction also fails because imperfect self-defense may not be invoked “by a
defendant who, through his own wrongful conduct (e.g., the initiation of a
physical assault or the commission of a felony), has created circumstances
under which his adversary’s attack or pursuit is legally justified.” (In re
Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.) Here, despite allegedly being
told that Garza had a gun and wanted to kill him, Singh sought him out and,
upon locating him, “mean mugged” at Garza and his friends. He then left,
went to his house to get his gun, and returned to the parking lot where he
saw Garza. He proceeded to park directly next to Garza. And when Garza—
unarmed—approached his vehicle, Singh did not attempt to leave but
immediately shot Garza. At every stage of the interactions between Singh
and Garza, Singh was the initiator. He cannot do so, and then attempt to
argue self-defense. (See People v. Beck and Cruz (2019) 8 Cal.5th 548, 649
[testimony and evidence indicated “Beck and Cruz executed a surprise attack
on the victims and brutally murdered them, and thus . . . provides no
substantial basis for an instruction on imperfect self-defense.”].)
Accordingly, the trial court properly declined to instruct the jury with
CALCRIM No. 571.
V. Cumulative Error
“ ‘Under the cumulative error doctrine, the reviewing court must
“review each allegation and assess the cumulative effect of any errors to see if
it is reasonably probable the jury would have reached a result more favorable
to [the] defendant in their absence.” [Citation.] When the cumulative effect
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of errors deprives the defendant of a fair trial and due process, reversal is
required.’ ” (People v. Doane (2021) 66 Cal.App.5th 965, 984.)
Here, two errors occurred: instructing the jury with CALCRIM No. 361
and the court’s failure to exercise its discretion in assessing whether a deputy
was required to be posted by the jury during Singh’s testimony. The question
thus is whether it is reasonably probable that, absent the errors, at least one
juror would have voted to acquit Singh of murder. (See People v. Soojian
(2010) 190 Cal.App.4th 491, 520–521 [hung jury more favorable result than
guilty verdict under Watson].) We conclude the answer is no. As discussed
above, substantial evidence supported Singh’s murder conviction. The
evidence reflects the jury carefully considered his police interview and
testimony. They requested transcripts of both be provided during
deliberations and found themselves “stuck on 1st or 2nd degree murder,”
before ultimately convicting Singh of second degree murder. The jury’s
detailed evaluation of the evidence indicates they did not assume guilt based
on these errors. Nor does any evidence suggest the errors negatively
impacted the jury’s deliberations. Based on the entire record, we conclude
beyond a reasonable doubt the two errors did not contribute to the guilty
verdict.
VI. Dueñas4 Claim
During sentencing, the trial court imposed in relevant part a court
security fee of $40 under section 1465.8, subdivision (a) and a criminal
conviction assessment of $30 under Government Code section 70373. Singh
objected, arguing he had “no economic ability to pay any of those fines” and
requested the court not impose such fines. The court noted that due to the
length of Singh’s incarceration, “there may be an ability to pay that over
4 People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
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time.” On appeal, Singh relies on Dueñas, supra, 30 Cal.App.5th 1157 to
argue the imposition of fees and court assessments without a prior
determination that he has the ability to pay violates his right to due process
and the prohibitions against excessive fines.
In Dueñas, the defendant was a chronically-ill, unemployed unhoused
woman with cerebral palsy and a limited education who supported her two
children through public aid. (Dueñas, supra, 30 Cal.App.5th at pp. 1160–
1161.) She had lost her driver’s license because of her inability to pay her
juvenile citations and then had acquired three misdemeanor convictions for
driving without a license because the accumulating fines and fees prevented
her from clearing the citations and recovering her license. (Id. at p. 1161.)
She thus experienced a series of “cascading consequences” because of “a
series of criminal proceedings driven by, and contributing to, [her] poverty,”
and she had already been ordered to pay the charges by the end of her
probation period. (Id. at pp. 1160, 1163–1164.) The Court of Appeal reversed
the challenged assessments, holding “the assessment provisions of
Government Code section 70373 and Penal Code section 1465.8, if imposed
without a determination that the defendant is able to pay, are . . .
fundamentally unfair [and] imposing these assessments upon indigent
defendants without a determination that they have the present ability to pay
violates due process . . . .” (Dueñas, at p. 1168.) It ordered the trial court to
stay the restitution fine “unless and until the People prove that [the
defendant] has the present ability to pay it.” (Id. at pp. 1172–1173.)
Here, Singh has not suffered a series of “cascading consequences”
because of a “series of criminal proceedings” which have resulted in his
inability to pay a $40 fine and $30 assessment. (See People v. Lowery (2020)
43 Cal.App.5th 1046, 1056 [“unique concerns addressed in Dueñas” were
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“lacking;” “Nothing establishes or even reasonably suggests that appellants
face ongoing unintended punitive consequences.”].) Furthermore, Singh has
been sentenced to a lengthy prison term. While at the time of sentencing he
may have had an inability to pay, nothing in the record indicates he will be
ineligible for or unable to perform prison work assignments. One can
therefore reasonably infer that an amount sufficient to cover the $70 in fines
will be deducted from his prison wages over the course of his incarceration.
(See People v. Aviles (2019) 39 Cal.App.5th 1055, 1076 [court “can infer
defendant . . . has the ability to pay the fines and fees imposed upon him from
probable future wages, including prison wages”]; People v. Johnson (2019) 35
Cal.App.5th 134, 139–140 [any Dueñas error was harmless given long prison
term and no evidence of inability to work].)5
DISPOSITION
The judgment is affirmed.
5 We therefore need not, and do not, weigh in on the correctness of
Dueñas’s reasoning, an issue on which the Supreme Court has granted
review. (People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26,
2019, S258946; People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov.
13, 2019, S257844.)
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_________________________
PETROU, J.
WE CONCUR:
_________________________
TUCHER, P. J.
_________________________
RODRÍGUEZ, J.
People v. Singh/A168215
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