People v. Singletary CA2/1

Filed 12/29/20 P. v. Singletary CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B301566
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA021100)
v.
ELLIOT SINGLETARY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Gregory A. Dohi. Appeal dismissed.
Juliana Drous, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_______________________________
On June 9, 1995, appellant, 19-year-old Elliot Singletary,
went to the mall with his codefendant Tommy Williams and four
young females, in a car driven by one of the females. Singletary
and some members of his group gathered outside the mall near
where Mohamed Seyedi, Ramtin Shaolin, and four other young
males were gathered. (People v. Williams (June 2, 1998,
B107685) [nonpub. opn.], p. 2.)1 Seyedi asked Singletary if he
had any marijuana. Singletary said no and asked Seyedi’s group
if they were gang members. Seyedi responded, with words to the
effect, “ ‘No. Do we look like gang-bangers? What kind of
question is that?’ ” (Ibid.) Singletary replied, with words to the
effect, “ ‘That’s the question I asked you.’ ” (Id. at pp. 2-3.) After
a bit, Singletary walked back to the car, where Williams was
sitting, and the two had a conversation. Then, Singletary
ordered the girls to get back in the car. (Id. at p. 3.)
The car carrying Singletary’s group drove off with one of
the girls in the driver seat, Singletary in the front passenger seat,
Williams on the right side of the rear passenger seat, and the
other three girls to the left of Williams in the rear passenger seat.
(People v. Williams, supra, B107685, p. 3.) Singletary directed
the driver to follow Seyedi’s group, as the group walked to their
car. On occasion, Seyedi’s group stopped, and the car stopped as
well. During the second such stop, Singletary and Williams
exited the car, opened the trunk, and moved their hands in a way
that suggested they were exchanging something. Seyedi’s group
continued to walk to their car, and the car carrying Singletary’s
group continued to follow them. (Ibid.) When Seyedi’s group
1 The cited opinion is from Singletary’s and Williams’s
direct appeals from their judgments of conviction.
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turned onto a pedestrian walkway, Singletary told the driver to
go around the back of a building to see if Seyedi’s group was
there. (Id. at p. 4.) When the car caught up to the group on foot,
Williams asked Singletary which member of Seyedi’s group “ ‘was
talking shit to him.’ ” (Ibid.) One of the girls pointed to Seyedi.
The driver pulled the car alongside Seyedi’s group and stopped.
Williams leaned out the back window of the car, fired about nine
gunshots, and shouted, “ ‘you don’t gang-bang, but you do now,’ ”
along with some profanity. (Ibid.) Shaolin died from a gunshot
wound, and two other members of the group (not Seyedi) were
struck by gunfire.
At Singletary and Williams’s joint trial, the trial court
instructed the jury on a direct aiding and abetting theory of
murder liability with CALJIC No. 3.00 (Principals -- Defined),
CALJIC No. 3.01 (Aiding and Abetting -- Defined), CALJIC No.
8.10 (Murder -- Defined), CALJIC No. 8.11 (“Malice
Aforethought” -- Defined), CALJIC No. 8.20 (Deliberate and
Premeditated Murder), CALJIC No. 8.30 (Unpremeditated
Murder of the Second Degree), and CALJIC No. 8.65 (Transferred
Intent). The trial court did not instruct the jury on felony murder
or the natural and probable consequences doctrine.
In 1996, a jury found Singletary guilty of the first degree
murder of Shaolin, as well as five counts of attempted murder.
The jury also found true the special allegations that a principal
was armed with a firearm during the murder and attempted
murders. The trial court sentenced Singletary to 27 years to life:
25 years to life for the murder, plus one year for the firearm
enhancement on the murder; and a consecutive life sentence for
attempted murder, plus one year for the firearm enhancement on
the attempted murder. The court imposed concurrent sentences
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of life plus one year for the other four attempted murder counts.
Singletary appealed his convictions.
As set forth in this court’s opinion in Singletary’s and
Williams’s direct appeals of their convictions, Singletary
challenged four of his five attempted murder convictions on the
ground the evidence was insufficient to demonstrate he
specifically intended to kill four of the alleged attempted murder
victims. Singletary did not challenge on appeal the sufficiency of
the evidence demonstrating he specifically intended to kill Seyedi
(the other attempted murder victim). (People v. Williams, supra,
B107685, pp. 5, 9.) Nor did he challenge his murder conviction.
As explained in the opinion, Singletary was guilty of Shaolin’s
murder under the doctrine of transferred intent, as he shared
Williams’s intent to kill Seyedi. (Id. at p. 9, fn. 8.) This court
reversed the four attempted murder convictions Singletary
challenged, concluding the evidence was insufficient to show
“Singletary shared Williams’s intent to kill anyone other than
Seyedi.” (Id. at p. 10.)
On March 14, 2019, Singletary filed a petition for
resentencing under Penal Code section 1170.95,2 a statute which
permits a person convicted of felony murder or murder under a
natural and probable consequences theory to petition the court to
have the murder conviction vacated and to be resentenced, if the
person could not be convicted of murder today in light of
amendments to sections 188 and 189. Senate Bill No. 1437,
which added section 1170.95 and amended sections 188 and 189,
was enacted in 2018 “to amend the felony murder rule and the
natural and probable consequences doctrine, as it relates to
2 Further statutory references are to the Penal Code.
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murder, 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), p. 6674; §§ 188, subd. (a)(3) & 189, subd. (e).)
On May 20, 2019, the district attorney filed a response to
Singletary’s section 1170.95 petition, attaching as exhibits to the
response, among other things, the jury instructions given at
Singletary and Williams’s trial and the opinion in Singletary’s
and Williams’s direct appeals of their convictions. The district
attorney urged the trial court to deny Singletary’s petition,
arguing (1) Singletary did not fall within section 1170.95, as he
was convicted of murder as a direct aider and abettor and not
under either a felony murder or natural and probable
consequences theory of culpability; and (2) section 1170.95 is
unconstitutional. On May 31, 2019, Singletary, as a self-
represented litigant, filed a supplemental brief in support of his
petition. On August 12, 2019, appointed counsel for Singletary
filed a brief in reply to the district attorney’s response to the
petition, arguing section 1170.95 is constitutional (but not
addressing whether Singletary falls within the provisions of
1170.95).
On August 16, 2019, after a hearing at which attorneys for
both sides were present, the trial court issued a minute order
denying Singletary’s petition for resentencing under section
1170.95 and stating: “Court finds that petitioner failed to make
required prima facie showing because petitioner was not
convicted on a felony murder or natural and probable
consequence theory and is therefore ineligible for relief.”
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Singletary filed a timely notice of appeal, and this court
appointed counsel for him. After examination of the record,
counsel filed an opening brief raising no issues and asking this
court to review the record independently pursuant to People v.
Wende (1979) 25 Cal.3d 436 (Wende). On July 9, 2020, we sent a
letter to Singletary and his appointed counsel, advising
Singletary that within 30 days he could personally submit any
contentions or issues he wanted us to consider, and directing
counsel to send the record and opening brief to Singletary
immediately. On July 22, 2020, Singletary’s appointed counsel
requested an extension until November 9, 2020 for Singletary to
file a supplemental brief, and we granted the requested
extension. As of the date of this opinion, Singletary has not filed
a supplemental brief, and we have received no further request for
an extension.
Because Singletary’s appeal is not his first appeal of right
from his conviction, he is not entitled to our independent review
of the record pursuant to Wende or its federal constitutional
counterpart, Anders v. California (1967) 386 U.S. 738. (See
People v. Kelly (2006) 40 Cal.4th 106, 119; People v. Serrano
(2012) 211 Cal.App.4th 496, 503 (Serrano); Pennsylvania v.
Finley (1987) 481 U.S. 551, 559.)3 He is entitled, however, to file
3 Under Serrano, in a criminal appeal in which Wende does
not apply, counsel who finds no arguable issues is still required to
(1) inform the court that counsel has found no arguable issues to
be pursued on appeal; (2) file a brief setting out the applicable
facts and law; (3) provide a copy of the brief to appellant; and
(4) inform the appellant of the right to file a supplemental brief.
(Serrano, supra, 211 Cal.App.4th at p. 503, citing
Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544 (Ben C.).)
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a supplemental brief and, if he files such a brief, to our review of
his contentions. (See Serrano, at p. 503; cf., Ben C., supra, 40
Cal.4th at p. 544, fn. 6; Ben C., at pp. 554–555 (dis. opn. of
George, C. J.).) If no supplemental brief is filed, we may deem
the appeal to be abandoned and dismiss the appeal. (Serrano, at
pp. 503-504.)
Under either Wende or Serrano, we are satisfied that
Singletary’s counsel has fully complied with counsel’s
responsibilities. (See Wende, supra, 25 Cal.3d at p. 441; Serrano,
supra, 211 Cal.App.4th at p. 503.) Singletary did not file a
supplemental brief. Accordingly, we dismiss Singletary’s appeal
as abandoned. (Serrano, at pp. 503-504.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
FEDERMAN, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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