Filed 9/30/20 P. v. Singer CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B302163
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA073169)
v.
HENRY ARNOLD SINGER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Victor D. Martinez, Judge. Affirmed.
Victor J. Morse, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and Thomas C. Hsieh,
Deputy Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Henry Arnold Singer appeals
from the denial of his petition for resentencing pursuant to Penal
Code section 1170.95.
Defendant was one of three individuals charged with the
first degree murder of a college student kidnapped, robbed and
left for dead in the mountains after her throat was slit.
Defendant pled guilty to first degree murder in exchange for a
dismissal of the special circumstance allegations and agreed to
testify against his codefendants. The record of conviction
demonstrates defendant was a major participant who acted with
reckless indifference to human life. Defendant is ineligible for
resentencing relief under the changes in the law regarding
liability for felony murder since his 2007 conviction. We
therefore affirm the trial court’s order denying defendant’s
petition.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2006, defendant was charged, along with
codefendant Markeisha Dixon, with one count of first degree
murder. (Pen. Code, § 187, subd. (a).) Robbery-murder and
kidnapping-murder special circumstances were also alleged.
(§ 190.2, subd. (a)(17).) The charges arose from the August 2001
murder of Christina Burmeister. In a separate information,
James Dixon was also charged with the Burmeister murder.
Neither Markeisha Dixon or James Dixon is a party to this
appeal.1
Two witnesses testified at the preliminary hearing,
Sergeant Joseph Purcell of the Los Angeles County Sheriff’s
1 Because of the common surname, we will refer to James
Dixon as Dixon and Markeisha Dixon as Markeisha.
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Department and Chanson Tyrone. Sergeant Purcell investigated
the death of Ms. Burmeister. Mr. Tyrone was a witness to the
crimes.
On August 18, 2001, a deputy sheriff discovered
Ms. Burmeister’s body in the front passenger seat of her truck on
a gravel turnout on Highway 39 in Azusa Canyon. Her throat
was cut and blood smears in the truck indicated she was killed in
that location. A later autopsy determined the cause of death to
be a knife wound to the throat, causing the victim to have
“drowned on her own blood.”
Sergeant Purcell recovered a cigar butt on the floorboard
beneath the driver’s seat of the victim’s truck. Later testing
established that DNA taken from the cigar butt matched the
DNA profile for Dixon. The investigation also revealed that
three ATM withdrawals, totaling $400, were made from
Ms. Burmeister’s account at Washington Mutual bank within the
span of 90 seconds on the evening of August 17, 2001. Security
footage from the bank showed a person making the withdrawals
holding the hood of their sweatshirt down to obscure their face.
Ms. Burmeister’s family told Sergeant Purcell that she had gone
out that night in her new truck to a fraternity party at her
college.
Mr. Tyrone testified he was with defendant on the night of
August 17, 2001. They were in San Bernardino walking down
the street headed to a liquor store when Dixon and Markeisha
pulled up alongside them in a sedan. Markeisha, who was
driving, called over to them and asked if they wanted to go get
some “cheese,” a slang term for money. Markeisha lived in the
same building as Mr. Tyrone. He had seen Dixon before with
Markeisha and Mr. Tyrone said “[h]e looked crazy.” Both
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defendant and Mr. Tyrone got into the sedan with Markeisha and
Dixon. They pulled onto the freeway and headed toward Pomona.
Markeisha stopped the car on a residential street where
some sort of party was going on. Mr. Tyrone noticed Dixon had a
handgun in his lap. Markeisha and Dixon got out of the car and
walked off. Mr. Tyrone and defendant stayed by the car, talking
and smoking cigarettes.
After a few minutes, Dixon returned walking next to a
white female unknown to Mr. Tyrone (Ms. Burmeister) who was
holding her hands up. Dixon appeared to whisper something in
her ear and she put her hands down. They walked toward a blue
truck, parked a couple of spaces away from the sedan, and both
Dixon and Ms. Burmeister got in the passenger side of the truck.
Markeisha said “come on” and then got in the driver’s seat of the
truck and drove off.
Defendant and Mr. Tyrone got into the sedan, with
defendant driving, and followed the truck. They eventually
arrived at a Washington Mutual bank in Montclair. Defendant
parked the sedan a short distance away from where Markeisha
had parked the truck. Markeisha, who was wearing a black
hooded shirt, got out of the truck and walked toward the ATM
machine. She never said what she was going to do, but it was
“pretty easy to figure out.” When she was walking back from the
ATM, she had money in her hands and was counting it.
Markeisha walked over to defendant and Mr. Tyrone and
told them she was having difficulty driving the truck because it
was a manual transmission. Defendant, who knew how to drive a
manual transmission, got into the truck and drove out of the
parking lot, as did Markeisha and Mr. Tyrone in the sedan.
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They drove to “a secluded little dark area” up in the
mountains. Markeisha parked the sedan a little bit away from
where defendant parked the truck. Defendant got out of the
truck, walked over to the sedan and got in with Markeisha and
Mr. Tyrone. Mr. Tyrone could see that Dixon was still in the
truck with Ms. Burmeister. After a few moments, he saw
Ms. Burmeister appear to grab at her neck “like she was gasping
for air or something.” Dixon got out of the truck and came back
to the sedan. Mr. Tyrone did not see any weapon in his hands.
Markeisha then drove them all back to San Bernardino. She and
Dixon dropped off defendant and Mr. Tyrone at Mr. Tyrone’s
apartment.
In November 2007, defendant pled guilty to first degree
murder. As part of the plea agreement, defendant agreed to
testify against Dixon and Markeisha. Defendant’s sentencing
was deferred until after he testified at Dixon’s trial. (Markeisha
pled guilty to first degree murder the day after defendant’s plea.)
At Dixon’s trial, defendant testified to a version of events
that differed from Mr. Tyrone’s preliminary hearing testimony in
several respects but substantially corroborated the evidence of
defendant’s major role in committing the crimes.
Defendant testified that on the evening of August 17, 2001,
he was driving around in San Bernardino with Mr. Tyrone. They
saw Markeisha and Dixon walking on the street and stopped to
talk to them. Dixon asked for a ride to Pomona. Defendant said
he did not have enough gas to drive there and Dixon offered to
pay.
During the drive to Pomona, Dixon suggested they make
some money by selling drugs once they arrived. All four of them
shared a blunt (a cigar with marijuana rolled inside). Once off
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the freeway, defendant followed Dixon’s directions to a
residential location and parked the car.
Markeisha and Dixon got out of the car, said they would be
right back and walked away. Defendant and Mr. Tyrone stayed
by the car and finished smoking the blunt. Five to 10 minutes
later, Markeisha and Dixon returned, driving a blue truck. They
pulled up next to defendant and told him to follow them.
Defendant followed the truck for awhile until they
eventually stopped at a bank in Montclair. Defendant parked his
car a few spaces away from the truck. He got out of his car and
sat on the hood. Mr. Tyrone got out and walked away to make a
phone call. Defendant saw Markeisha, who was wearing a
hooded sweatshirt, walk over toward the bank. Shortly
thereafter, Markeisha came over to defendant. Mr. Tyrone
returned and said there was a police car in the parking lot. They
all walked a short distance away from the vehicles and watched
the police car. Markeisha said they needed to get the truck out of
the parking lot.
After they saw the police car leave, they walked back to the
truck and Markeisha said she was having trouble driving it
because it had a manual transmission. She asked defendant to
drive it and he agreed. Markeisha told him there was a “white
girl” in the truck or words to that effect.
Before getting into the truck, defendant got a pair of socks
from the trunk of his car and put them on his hands because he
did not want to leave fingerprints in the truck. When he got into
the truck, he noticed that Dixon was not inside and that there
was a white female (Ms. Burmeister) lying face down on the floor
of the back cab area, with her shirt pulled up over her head and
her hands tied behind her back with red lace fabric, apparently
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her underwear. She was “gasping,” “moan[ing] in discomfort”
and “struggling” to move. Defendant did not ask if she was
alright or do anything to help her.
Defendant, driving the truck, followed the sedan, now
driven by Mr. Tyrone with Markeisha as a passenger, out of the
parking lot. Defendant saw Dixon standing on the side of the
road and stopped to pick him up. Before getting in, Dixon pulled
Ms. Burmeister from the back and put her in the front passenger
seat and then climbed into the back seat behind her. Defendant
asked Dixon what was going on and he pulled out a handgun and
told him not to worry about it. Ms. Burmeister told them to take
what they wanted and leave her alone or words to that effect.
When asked why he did not drive away from the others
before picking up Dixon, knowing Ms. Burmeister was tied up
and in need of assistance, defendant said “foul judgment” and
because he was “stoned.” Defendant also said he feared Dixon
might use the gun, but conceded Dixon did not point the gun at
him or threaten him with it.
Dixon told defendant to get on the freeway and gave him
directions to drive up into the mountains of Azusa Canyon.
Eventually, Dixon pointed out a dark turnout area and told
defendant to pull over. Defendant parked the truck and got out,
leaving Dixon in the truck with Ms. Burmeister.
Defendant walked over to his car and got in. He asked for
his keys and Markeisha gave them to him. Markeisha walked
over to the truck and stood on the passenger side where Dixon
was now standing with the door open. They appeared to be
talking. Markeisha then walked back to defendant and
Mr. Tyrone. Defendant saw Dixon lean into the truck for a bit,
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before closing the door. As he walked toward defendant’s car,
Dixon appeared to throw something.
Dixon told defendant to leave and gave him directions back
to the freeway. Dixon told Mr. Tyrone to throw Ms. Burmeister’s
cell phone out the window, and he did so.
On April 4, 2008, in accordance with the terms of the plea
agreement, defendant was sentenced to prison for 25 years to life,
and the prosecution dismissed the special circumstance
allegations and the allegation defendant had suffered a prior
strike conviction in 2002 for robbery. Defendant was awarded
834 days of custody credits.
In February 2019, defendant filed a petition for
resentencing pursuant to Penal Code section 1170.95 which
became effective January 1, 2019. The trial court appointed
defendant counsel and the parties submitted briefs.
On October 29, 2019, the court ordered the People to show
cause why the petition should not be granted and proceeded with
the evidentiary hearing. The court said it intended to consider
the record of conviction, including the abstract of judgment, the
information, and the transcript of the preliminary hearing. The
court also said it would consider the transcript of defendant’s
trial testimony in the Dixon case which had been submitted as an
exhibit to defendant’s brief. The court asked counsel if there was
any additional evidence to be submitted. Defense counsel said no
and agreed with the court’s description of the relevant evidence.
The prosecutor did not have any additional evidence but objected
to the consideration of defendant’s trial testimony. The court
overruled the objection.
After entertaining argument from the parties, the court
denied defendant’s petition, finding the evidence supported the
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conclusion that, whether analyzed as express malice, implied
malice or reckless indifference, “defendant would have been
found guilty” and therefore he was ineligible for resentencing.
This appeal followed.
DISCUSSION
Defendant contends the trial court erred in denying his
petition because the record does not contain evidence supporting
a first degree felony murder conviction in light of the changes
effected by Senate Bill 1437 (2017-2018 Reg. Sess.). Defendant
also argues the trial court abused its discretion by relying on an
incorrect standard of review in denying his petition. We disagree
with both contentions.
Penal Code section 1170.95 was enacted as part of the
legislative changes effected by Senate Bill 1437. “Senate
Bill 1437 was enacted to ‘amend the felony murder rule and the
natural and probable consequences doctrine, as it relates to
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, subd. (f).)” (People v. Martinez (2019)
31 Cal.App.5th 719, 723.)
With respect to felony murder, Penal Code section 189,
subdivision (e), as amended, now provides in relevant part that
“[a] participant in the perpetration or attempted perpetration of a
felony listed in subdivision (a) in which a death occurs is liable
for murder only if one of the following is proven: [¶] (1) The
person was the actual killer. [¶] (2) The person was not the
actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted
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the actual killer in the commission of murder in the first degree.
[¶] (3) The person was a major participant in the underlying
felony and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.”
Our Supreme Court has explained the evidentiary contours
of “act[ing] with reckless indifference to human life” within the
meaning of Penal Code section 190.2, subdivision (d). In People v.
Banks (2015) 61 Cal.4th 788, 807 (Banks), the court held that
“[r]eckless indifference to human life ‘requires the defendant be
“subjectively aware that his or her participation in the felony
involved a grave risk of death.” ’ ” A defendant’s “[a]wareness of
no more than the foreseeable risk of death inherent in any armed
crime is insufficient.” (Id. at p. 808.) There must be evidence the
defendant engaged in conduct “knowingly creating a ‘grave risk of
death.’ ” (Ibid.) The court reaffirmed this definition a year later
in People v. Clark (2016) 63 Cal.4th 522, 623.
We conclude the record amply supports defendant’s guilt of
first degree felony murder on a theory he was a “major
participant in the underlying felony and acted with reckless
indifference to human life.” (Pen. Code, § 189, subd. (e)(3).)
Banks cites a nonexhaustive list of factors articulated in
Tison v. Arizona (1987) 481 U.S. 137, 157 that courts may
consider in analyzing a defendant’s participation in criminal
activity and whether it carries a grave risk of death. Those
factors are: “What role did the defendant have in planning the
criminal enterprise that led to one or more deaths? What role did
the defendant have in supplying or using lethal weapons? What
awareness did the defendant have of particular dangers posed by
the nature of the crime, weapons used, or past experience or
conduct of the other participants? Was the defendant present at
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the scene of the killing, in a position to facilitate or prevent the
actual murder, and did his or her own actions or inaction play a
particular role in the death? What did the defendant do after
lethal force was used?” (Banks, supra, 61 Cal.4th at p. 803.)
None of the factors is required nor is any factor dispositive, and
other factors may be relevant. (Ibid.)
Several of the enumerated factors are present here.
Defendant agreed to drive the truck in which the victim was
bound. Defendant was aware the victim was bound, face down,
on the floor of the truck’s back cab and was “gasping,”
“moan[ing]” and “struggling” to move. He was alone with the
victim as he left the bank parking lot and could have driven off,
leaving the others behind and taking the victim to a place of
safety. Instead, defendant stopped and picked up Dixon and
drove a significant distance to a secluded mountain location.
Once up in the mountains, he left the victim alone in the truck
with Dixon, knowing Dixon had a handgun. Defendant drove all
the accomplices from the scene of the crime. Once back home,
defendant did nothing to summon aid for the victim. These facts
distinguish this case from In re Scoggins (2020) 9 Cal.5th 667,
where the Supreme Court found the defendant did not act with
reckless indifference to human life because he was not present at
the crime scene, could not see the confrontation that led to the
killer’s use of force, did not know the killer had a gun or would
use lethal force, and after the shooting, went to check if the
victim was still breathing and stayed to give a police interview.
Defendant was a major participant in the crimes, and his
behavior demonstrated a reckless disregard for the life of
Ms. Burmeister. The trial court did not err in concluding, beyond
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a reasonable doubt, that defendant was ineligible for
resentencing.
Defendant also argues the trial court used the wrong legal
standard in reviewing his petition. The argument is without
merit. Penal Code section 1170.95, subdivision (d)(3) provides in
pertinent part that “[a]t the hearing to determine whether the
petitioner is entitled to relief, the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.”
The court here stated it had analyzed the evidence
presented and concluded defendant would have been found guilty
under any theory of murder. The court acknowledged the
relevance of Banks and found the facts supported felony murder.
The court’s ruling is not infirm simply because the trial court did
not expressly recite that it found the prosecution had met its
burden of showing ineligibility beyond a reasonable doubt.
Defendant points out the trial court stated that “the People
could have proceeded on an express murder, [an] express malice
case.” This does not support a conclusion the court relied upon
an incorrect legal standard. The court stated this only to
emphasize that while the evidentiary record plainly supported
guilt beyond a reasonable doubt under a Banks felony murder
theory, it believed the evidence was strong enough to prove
express malice. The statement emphasized the court’s view of
the strength of the evidence against defendant, not the use of an
improper standard.
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DISPOSITION
The trial court’s order denying Henry Arnold Singer’s
petition for resentencing is affirmed.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.
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