Filed 3/3/22 Sehmbey v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIFTH APPELLATE DISTRICT

NIRMAL SEHMBEY,

Petitioner,

v.

SUPERIOR COURT OF KERN COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

F079755

(Kern Super. Ct. No. HC 015370A)

OPINION

Appeal from an order of the Superior Court of Kern County. Michael E. Dellostritto, 

Judge.

Charles M. Sevilla for Petitioner.

No appearance for Respondent.

Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant 

Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Eric L. 

Christoffersen and Sally Espinoza, Deputy Attorneys General, for Real Party in Interest.

-ooOoo-
2

Defendant seeks postconviction relief from his conviction of conspiracy to commit 

robbery of Manjit Singh. We conclude the evidence on which he relies was either: not 

“newly discovered,” or not “evidence of actual innocence,” or was lacking in credibility. 

(See Pen. Code, §§ 1473.6–1473.7.)

1 We therefore affirm the trial court’s denial of 

postconviction relief. 

BACKGROUND

Nirmal Sehmbey (defendant) was convicted by a jury of conspiracy to commit 

robbery (§§ 182, subd. (a)(1), 212.5, subd. (c); count 1) and conspiracy to commit assault 

with a deadly weapon or by means of force likely to produce great bodily injury (§§ 182, 

subd. (a)(1), 245, former subd. (a)(1); count 2). He was acquitted of making criminal 

threats. (§ 422; count 3.) Defendant was sentenced to a total unstayed term of three years in 

prison and ordered to pay restitution and various fees, fines, and assessments.

In an opinion issued on direct appeal, this court struck defendant’s conviction on 

count 2 (conspiracy) and otherwise affirmed the judgment.2 Defendant subsequently sought 

postconviction relief in the superior court, which was denied. Defendant appeals, claiming 

the court erred in denying postconviction we relief. We affirm.

I. Trial Evidence3

As of February 2011, Dr. Ravinderjit Singh and her husband, Manjit Singh, had been 

attending temple at the Sikh Temple on P Street in Bakersfield for a number of years.4 

Manjit acted as a secretary of the temple, a volunteer position that was one of respect. 

When the couple married in 2003, however, many in Ravinderjit’s family disapproved of 

the marriage. Defendant, who was married to Ravinderjit’s aunt, was not happy with the 

1 All statutory references are to the Penal Code unless otherwise stated.

2 We grant defendant’s unopposed request to take judicial notice of this prior 

decision.

3 The factual summary in this section of the opinion is taken almost entirely from our 

opinion in People v. Sehmbey (May 3, 2016, F069142) [nonpub. opn.].

4 For clarity, we refer to the Singhs by their first names. Undesignated dates in this 

section of the opinion are to the year 2011.
3

marriage because he perceived Ravinderjit and Manjit as being unequal. Defendant said 

Manjit did not know who defendant was and how much power he had, and that the couple 

could not get married. Although Manjit took the words as a threat, he and Ravinderjit 

married anyway.

After time passed, everything grew quiet. The Singhs had no relationship with 

defendant, and he left them alone until the summer of 2010, when Ravinderjit’s aunt stayed 

with the couple for a few days. Defendant, who was angry the couple had allowed his wife 

to stay at their house when she had been kicked out of her home, made threatening 

telephone calls to the Singhs and said he was going to “come and get them.” Eventually, the 

aunt returned to defendant.

Around February 1, a third party telephoned Manjit and connected defendant to the 

call. Defendant stated he was very upset and asked why Manjit had kept defendant’s wife at 

Manjit’s house. Defendant said he had power and money and could do horrible things to 

Manjit, and that Manjit only had two weeks to live. Manjit called the police the next day 

and made a report because defendant kept calling. Manjit declined to pursue legal action 

against defendant, however.

On February 20, the Singhs attended temple with their two young children. They 

arrived between 11:00 a.m. and 11:30 a.m. and parked their vehicle in the parking lot. 

Manjit was driving; Ravinderjit was sitting in the back seat with the children.

Ravinderjit saw two Hispanic males approaching the car from the back. Neither she 

nor Manjit had ever seen the men before. Ravinderjit saw small guns in their hands. Manjit 

got out of the car and went to open the back door for his children, and the men immediately 

attacked him. A fight ensued. Manjit managed to hold one of them down; this man, who 

was young, tall, and thin, repeatedly struck Manjit in the nose. The other, who was shorter 

and chubbier, punched Manjit in the head and back. Ravinderjit got out of the car and tried 

to help Manjit by hitting the men with a large spoon. Ultimately, the heavier man stopped 

assaulting Manjit and fled. Manjit held the other man down until the police arrived. Manjit 

suffered abrasions to his hands and legs, a bloody nose, and a severely injured finger.
4

Prior to the assault, Manjit was wearing his turban, which he habitually did when 

attending temple. When he was hit in the head, his turban was removed. After the assault 

ended and the heavier man fled, the turban was nowhere to be found.5 Manjit never 

received it back. The turban had no monetary value but was “the most valuable for a 

family.” In Sikh culture, the turban is worn as a symbol of respect, pride, and dignity. It is 

invaluable. To lose one’s turban is to lose one’s respect. A person removing another’s 

turban would be showing great disrespect. As a result of the attack, members of the 

congregation saw Manjit without his turban.

On March 3, Kern County Sheriff’s Detective Brunsell set up a pretext telephone call 

between Manjit and defendant.6 In the conversation, defendant said he was not going to 

cuss at Manjit over the phone, but would meet him face-to-face, and to “get ready.” When 

Manjit called defendant a name and asked what he was going to do, defendant instructed 

him not to curse at defendant, and said, “You already got the result for cursing.” Manjit 

asked, “What result did I get? What did I get? Your man has been caught.” Defendant 

called Manjit an obscene name, then said, “You got beaten in front of women, in front of all 

the congregation. In front of children you got beaten.” He then asked how much more 

humiliation Manjit needed. When Manjit said defendant’s man had been caught and was in 

jail, defendant responded that he came out on bail. Manjit asked if defendant got him freed; 

defendant replied, “What need do I have to get him freed, you sister f[**]ker. Whose ever 

man he is will get him freed. Why do I need to get him freed?” Manjit said the man was 

caught and named defendant, whereupon defendant demanded to know who said it. After 

further insults, defendant said, “Listen to me. I will shove a stick up your ass hard. You 

stop or else.” Manjit asked how defendant would do it. Defendant responded, “I say 

straighten up. Straighten up. Become a man, you idiot. Sister f[**]ker, you will get killed 

5 Ravinderjit told police that during the incident, she saw the heavier man remove the 

turban from Manjit’s head and throw it to the ground.

6 The call was presented at trial by Satvinder Kaur Franco, a registered interpreter in 

the Punjabi and Hindi languages. She explained that the two parties spoke over each other. 

Defendant yelled and seemed agitated.
5

by my hands.” Defendant said he had men who would abduct Manjit from Manjit’s house. 

Manjit called defendant a jackal and suggested his men were also jackals. Defendant 

responded, “That’s why the stick went in your ass.” When Manjit asked how it went in, 

defendant answered, “All that humiliation in front of women, men, the whole congregation, 

all of Bakersfield. You sister f[**]ker, you should die of shame.” Manjit said defendant 

was the one who was humiliated, because everyone said defendant sent men but could not 

do anything. Defendant responded that he was a millionaire, and if he wanted to fight with 

Manjit, defendant would send his army, and they would abduct Manjit and bring him.

After further insults, defendant demanded to know why Manjit had kept defendant’s 

“woman” in Manjit’s house and told her to get a divorce. The subject then returned to who 

had been humiliated. Defendant asked, “How else do you understand humiliation? Got 

beaten in front of women, in front of the whole congregation.” He also said, “Where is your 

turban? The Mexicans took your turban,” and told Manjit to go and get it from “those 

ruffians.” Defendant also said, “Blood was flowing from your mouth. Blood was flowing 

from your nose,” and that “the Mexican” kicked Manjit in the face. He did not answer when 

Manjit asked how he knew. Defendant told Manjit to get his turban, and then Manjit would 

be worthy to talk to defendant.

A day or two later, defendant telephoned Manjit again. Defendant told Manjit, 

“[G]et ready. I’m going to get you.” Manjit took this as a death threat. It caused him to be 

afraid, and he contacted the police.

Testimony of Jorge Negrete

On February 20, Paul Macias gave Jorge Negrete (Negrete) and Negrete’s nephew, 

Jose Macias, a ride to Bakersfield.7 Negrete came to Bakersfield to assault someone. He 

carried out the assault. He did not know his victim. He carried out the assault because he 

was going to be paid. He received his payment after the assault.

7 Paul Macias and Jose Macias are not related.
6

At trial, Negrete professed not to remember some parts of the incident. He testified 

he did not recognize a photograph of Manjit, although the picture “[p]robably” was the man 

he assaulted. He did not recall how much he was paid for the assault. He denied seeing 

anyone in the courtroom who paid him for the assault. When shown a photographic lineup 

by police on August 29, however, he identified a photograph of defendant.8 In addition, he 

identified defendant at the preliminary hearing. Defendant was one of the two people with 

whom Negrete met.9 Negrete said he testified at the preliminary hearing that he knew 

defendant as Sayer Singh.

In February, Negrete was living in Van Nuys. He met with defendant down the street 

from Negrete’s house. Defendant was driving a white BMW.10 Defendant − who had 

initiated contact with Negrete − asked if Negrete would be willing to go to Bakersfield and 

scare someone and take that person’s turban. Defendant said he would pay Negrete to do it. 

Although Negrete could not remember the amount he was to be paid, he believed it was 

$1,000. Defendant was the person with whom Negrete made the deal. Afterward, someone 

else wearing a turban handed Negrete the money. Defendant was present but remained 

inside his vehicle.

8 Detective Brunsell conducted this interview with defendant. An audio recording of 

the interview was played for the jury.

9 Negrete testified at trial that before he was shown the photo array, he was shown a 

single photograph of defendant. According to Detective Brunsell, however, he had never 

shown Negrete a photograph of defendant prior to when he showed him the photographic 

lineup.

10 Negrete did not recall subsequently telling police that the license number of 

defendant’s car was 5NXF961. At the preliminary hearing, however, he testified that was 

the number of the BMW he would see when he met with defendant. At trial, he testified he 

was being truthful at the preliminary hearing.

Detective Brunsell first interviewed Negrete on June 22, the day Negrete was 

arrested in connection with this case. Negrete volunteered information about defendant’s 

vehicle. Prior to this time, Brunsell had never seen defendant’s vehicle; however, Manjit 

had told him defendant drove a white BMW, and had given Brunsell the license plate 

number sometime around February 24. Negrete provided the license plate number, which 

he said he had memorized because he did not trust defendant. The number Negrete 

provided was 5NXF961. He said the car was a white 2006 BMW.
7

Negrete was not familiar with Bakersfield but was supposed to go to a temple to 

commit the assault. When he arrived, everybody was wearing a turban. Negrete knew 

whom he was supposed to assault, because he first met with someone a couple of houses 

down from the temple. That person pointed out the intended victim. The person gave 

Negrete something like a bandana to wear on his head.

The victim had just gotten out of his car when Negrete and Jose Macias walked up. 

They surrounded him. The victim quickly turned toward Jose, whereupon Negrete rushed 

him and started hitting him. The victim tackled Jose, who went to the ground. Negrete 

started kicking the victim and trying to get him off Jose, but other people started coming 

over and helping to stop the attack. Negrete fled with the victim’s turban.

Defendant had told Negrete to scare someone. Negrete took it upon himself to 

assault the victim. Negrete did not remember defendant telling him to take the turban; 

Negrete did take it, however, and believed he left the location with it.11 Negrete threw the 

turban away, because Jose Macias had been caught at the scene, and Paul Macias had 

already left town. Negrete got rid of the turban at a little market a couple of blocks from the 

temple. He took a bus back home. After he was paid for the assault, he paid Paul Macias 

and Jose Macias, who was out on bail.

Negrete was arrested several months later and brought to Bakersfield, where he 

spoke with law enforcement officers. He believed he identified the kind of vehicle 

defendant drove and gave them the license number, although he could not recall with 

certainty.12

At the time he testified, Negrete was in custody in state prison. As of February 2011, 

he was a heroin addict who used the drug every day, and he also had an alcohol problem. 

He had previously been in prison for selling cocaine to support his habit, and had been 

11 At the preliminary hearing, Negrete testified he came to Bakersfield at defendant’s 

direction to scare the victim and get his turban from him.

12 The parties stipulated defendant was the registered owner of a 2006 BMW, with 

California license plate number 5NXF961.
8

involved, on the street, with a Los Angeles-based Southern Hispanic gang since 1998. He 

had had a number of run-ins with the law for theft-related crimes, including stealing cars.

Negrete entered into a plea agreement for his role in Manjit’s assault. As part of that 

agreement, he understood he would have to testify against defendant. As part of the case 

settlement agreement in the present case, Negrete pled to battery causing serious bodily 

injury − a strike − and understood he would be going to state prison. He did in fact go to 

state prison. In exchange, he agreed to provide truthful testimony in the prosecution of 

defendant. He had no other understanding or belief concerning the agreement, although his 

nephew only getting a year in custody and three years’ probation influenced him.

After he committed the assault in Bakersfield, Negrete committed a robbery in Los 

Angeles County by punching a woman in the face and stealing her purse. He had already 

gone to prison in the Bakersfield case when he entered into a plea agreement in the robbery 

case, and he was currently in custody for that robbery. Negrete’s Los Angeles County case 

was not discussed when his plea agreement was negotiated in the Kern County case.

After Negrete’s arrest in the present case, he had a conversation with Detective 

Brunsell. From the beginning, Brunsell tried to induce Negrete to cooperate. Brunsell said 

Jose Macias was facing over 20 years, and Negrete should cooperate with them because 

they were after the “big fish.” Negrete believed that if he cooperated, it would help his 

nephew get less time. Negrete’s expectation came true. Negrete also expected to get some 

credit for his Los Angeles County case, but he received “four years consecutive” in that 

matter. His total sentence in the two cases was five years.13

In closing argument, the prosecutor highlighted Negrete’s identification of defendant 

at a photographic lineup, the preliminary hearing, and trial. The prosecutor also referenced 

the pretext call by asking rhetorically how defendant knew “Mexicans” had committed the 

13 Negrete originally was charged with two counts of attempted kidnapping, one 

count of conspiracy to commit assault with great bodily injury, one count of conspiracy to 

commit robbery, and two counts of conspiracy to commit kidnapping. Those counts all 

were dismissed because of the plea agreement.
9

assault when there was no evidence anyone had previously described the events to 

defendant.

Defense Evidence

Private Investigator Bruce Groesbeck (Groesbeck) and defense counsel interviewed 

Negrete on November 7, 2013, at the Los Angeles County Jail. During the interview, 

defense counsel asked whether Negrete had any expectations or deals regarding his current 

case. Negrete said he was awaiting sentencing on his Los Angeles County case and 

expected his sentence in that case would run concurrently to his sentence in his Kern County 

case. Negrete said this expectation was based on what his public defender told him. 

Negrete also said he had a cousin with the last name of Macias who was arrested in this 

case, and he was concerned about him. Negrete said it was his understanding that if he 

(Negrete) would “take the heat” in the Kern County case, the district attorney would be 

lenient with Macias.

Negrete talked extensively about his state of mind. He said he had been “loaded” on 

a daily basis from approximately November 2009 through the day of his arrest in this case. 

He said he could not recall much about the incident, because it had occurred so long ago,

and he was under the influence of drugs when he gave his previous statements. Negrete said 

that when he was arrested, he was under the influence PCP and had injected heroin about 20 

minutes earlier. Negrete said he was unable to make an identification from the first 

photographic lineup, which he was shown after he had been in custody for six to 10 days. 

He was shown another six photographs and made a selection, but the detective told him that 

he had picked the wrong person. As for his identification of the car, Negrete said he could 

not identify any car’s make or year or model. He stated the detective told him what year the 

BMW was, and Negrete got the license plate number from a photograph the detective 

showed him.
10

Negrete said he was paid a couple of days after his involvement in the case. He said 

defendant was not the man who paid him.14 Asked why he identified defendant in court, 

Negrete said he was just trying to “get it over with.”15

During deliberations, the jury sent a note asking for a transcript of the call between 

Manjit and defendant or, alternatively, a readback of testimony concerning the call. The 

note also asked for the date of Negrete’s plea deal. Finally, the note asked if “psychological 

injury” would be considered great bodily injury. In a later note, the jury asked for 

definitions of battery and assault, and asked if they are synonymous. The latter note also 

asked if the jury could “use” Negrete’s rap sheet as “circumstantial evidence.”

II. Civil Lawsuit16

Manjit and Ravinderjit filed a civil lawsuit against defendant in 2012, alleging he 

conspired to assault Manjit. That lawsuit is relevant to the present matter because much of 

the evidence defendant relies upon in his efforts to obtain postconviction relief in criminal 

court comes from depositions given in Manjit’s civil lawsuit. We will therefore summarize 

some of the deposition testimony from the civil lawsuit.

Tejpal Singh

Tejpal Singh was deposed on July 13, 2016. Manjit is a friend of Jobanjit Singh 

who, in turn, is a friend of Tejpal’s.

On February 20, 2011, Tejpal was on his way to a different Sikh temple when 

Jobanjit called him and told him to come to the P Street temple because “something 

happened.” By the time Tejpal arrived, the incident involving Manjit was already over. 

Jobanjit told Tejpal that a couple people had attacked Manjit, and that one person was in 

custody, and another had fled.

14 Negrete was not asked if defendant was present when he received the money, or if 

he had made the deal originally with defendant.

15 Negrete claimed he did not remember telling Grosebeck certain details like this 

one.

16 The aspects of Negrete’s civil testimony on which defendant relies is described 

after this section.
11

Tejpal asked Manjit what happened. Manjit said that as soon as he parked his car 

and got out, people attacked him. Manjit had a scratch that was bleeding a “little bit.” 

Manjit was wearing an “orange kind of turban” but it was not on right, as if someone had 

taken it off and Manjit had put it quickly back on. Tejpal did not see Manjit wearing a 

patka. A patka is a smaller cloth sometimes worn under a turban.

A few days later, Manjit, Ravinderjit and Jobanjit came to Tejpal’s house. “They” 

told Tejpal that someone had tried to kidnap their children.

Tejpal told Manjit and Ravinderjit that he did not see the person who ran away after 

assaulting Manjit. Nonetheless, they wanted Tejpal to claim that he did see the person and 

to help identify him. Manjit and Ravinderjit came to Tejpal’s house “[m]ore than three 

times” asking for Tejpal’s help. Manjit also called Tejpal many times asking him to falsely 

identify the assailant who fled. Jobanjit told Tejpal that if the assailant is not identified, he 

could return and kidnap Manjit’s children. Tejpal agreed to identify the individual to police. 

Tejpal later “learned” that nobody had tried to kidnap Manjit’s children.

Manjit and Jobanjit told Tejpal that defendant had sent the assailants. “They” also 

described a plan to tell police that somebody took Manjit’s turban.

Tejpal went to meet with a detective at the P Street temple twice. Manjit was there as 

well. Manjit told Tejpal separately to identify photograph number six in the photo lineup.

At a second meeting with the detective, Manjit told Tejpal in Punjabi to select 

photograph number four in the photo lineup. Tejpal had never seen the individuals before 

and selected the particular photographs solely based on the information provided by 

Manjit.17

After the assault, Tejpal accompanied Manjit and Jobanjit to Castaic. “They” tried to 

have another person provide “fake evidence” against defendant. When asked what specific 

fake evidence they were after, Tejpal testified: “I don’t recognize, but they want him to go 

17 In his own deposition, Manjit denied telling Tejpal which photographs to select.
12

against [defendant], to say something to what he may be done wrong in LA or something 

and what his character.” Eventually, the man declined to do so.

Manjit asked Tejpal to testify at trial, but Tejpal said he would “speak the truth in 

front a judge. I’m not going to lie.” Tejpal did not testify at trial.

Tejpal understood that Manjit and Jobanjit were no longer friends because of a 

dispute involving the sale of a home to Jobanjit.

Jobanjit

Jobanjit gave a deposition on July 21, 2015.

Jobanjit testified that he filed a lawsuit against Manjit in October or November 2014, 

several months before his deposition. Jobanjit claimed that Manjit had “forced” him to buy 

Manjit’s house. Jobanjit’s credit score was low, and Manjit said it was no problem. Manjit 

said they did not need to “change the loan right now,” which was in Manjit’s name. Jobanjit 

made substantial improvements to the house, made payments for the mortgage, insurance 

and taxes for five years. Manjit eventually changed his mind and said he did not want to 

sell the house to Jobanjit. This dispute led to a separate civil lawsuit between Jobanjit and 

Manjit.

Jobanjit met Manjit because their fathers are best friends. On the day Manjit had 

been assaulted in early 2011, Manjit called Jobanjit and told him to come to the P Street 

temple because there had been a “fight.” When Jobanjit arrived at the temple, the police 

were there and had “a Mexican guy” in custody. Manjit was wearing “a little turban on his 

head” and a larger turban was in the front seat of his car. Jobanjit then testified as follows:

“Q What color was that turban in the front seat? What color was it?

“A I forgot. Yellow color. It was, like, a little turban. It was yellow.

“Q Uh huh. [¶] And he was wearing a smaller turban?

“A Yeah.”

Manjit told Jobanjit to say that he heard the “Mexican guy” say “Sehmbey sent me.” 

Jobanjit knew Manjit and defendant had been engaged in a prior argument so Jobanjit told 

Manjit: “[N]o problem, man.” However, Jobanjit did not even know defendant.
13

Manjit also told Jobanjit that “Mohinder Dhaliwal sen[t] this guy.”18 When Jobanjit 

later refused to implicate Dhaliwal, Manjit became upset.

Manjit later called Jobanjit several times and told him to say the assailant had said, 

“Sehmbey sent me over.” Jobanjit complied and told law enforcement investigators that he 

heard Macias say, “Sehmbey sent me.” In fact, Jobanjit had not heard Macias say that. 

Before defendant’s trial, Jobanjit told David Zulfa19 that he did not hear Macias say 

“Sehmbey sent me.”

Manjit and Ravinderjit made up a story that someone tried to kidnap their daughters. 

Manjit also told Jobanjit that he made up the story about his turban being stolen. Jobanjit 

also testified that Manjit lied about a finger injury to get out of his work as a nurse.

According to Jobanjit, there were “a lot of people” who Manjit coerced into lying to 

law enforcement.

Jobanjit “guess[ed]” that he told investigators that Macias had a gun. In actuality, 

Jobanjit does not “think” Macias had a gun.20

Jobanjit said that Manjit was removed from his position as secretary of the Sikh 

temple because he would offend some people in his comments at temple.

Jobanjit was not called to testify at defendant’s trial.

Mandeep Singh

Mandeep Singh gave a deposition on September 30, 2015.

On the morning of the assault, Jobanjit called Mandeep and told him something had 

happened to Manjit at temple. When Mandeep arrived, Manjit had a “small turban” on his 

head.

18 Dhaliwal is defendant’s self-described “best friend.”

19 David Zulfa was the deputy district attorney who tried the criminal case against 

defendant.

20 Defendant observes that this contradicts the trial testimony of Manjit and 

Ravinderjit. However, Jobanjit’s testimony on this issue is not evidence that defendant was 

actually innocent of conspiring to rob Manjit.
14

Two or three days later, Manjit and Mandeep spoke about the incident over the 

phone. Manjit did not tell Mandeep that anyone had tried to kidnap his children. Mandeep 

does not remember Manjit ever asking him to say anything to the sheriff’s department that 

made him uncomfortable. Manjit did not ask Mandeep to say he heard the assailant say, 

“Sehmbey sent me.”

Four or five days after the incident, the sheriff’s office asked Mandeep to call 

defendant. Mandeep knew defendant through common friends. On the call, defendant 

denied involvement in the attack. Someone from the sheriff’s office recorded the 

conversation.

Mohinder Dhaliwal

Mohinder Dhaliwal gave a deposition on February 27, 2015. 

Dhaliwal and Manjit were friends until they had a dispute in temple.

According to Dhaliwal, defendant did not like Ravinderjit. However, defendant 

never talked about Manjit and when asked about Manjit’s marriage, defendant would say, “I 

don’t want to talk about it.” Other times, defendant would say, “She can go get married to 

anybody. I have nothing to do with that.” According to Dhaliwal, defendant did not have 

any objection to Manjit’s marriage with Ravinderjit. However, defendant’s wife did object 

to their marriage because of the caste difference and age difference. By six months after the 

wedding, defendant and his wife were not associated with Manjit and Ravinderjit any 

longer.

Dhaliwal claimed that he and defendant never spoke of the attack on Manjit. Later, 

Dhaliwal testified that defendant told him, “I don’t know why they are accusing me.” 

Defendant denied involvement in the attack.

Ravinder Kaur Rai

Ravinder Kaur Rai gave a deposition on February 29, 2016.

Rai was working in the temple kitchen on the day of the assault. Someone told Rai 

there was a fight in the parking lot. By the time Rai got outside, the police had already 

arrived. The police did not let anyone get close to the scene. However, Rai could see 
15

Manjit from a distance, and he did not have a turban or a patka on his head. She saw that he 

had an orange turban in his hand. Rai was certain it was a turban in Manjit’s hand, not a 

patka.

Gurprinder Kaur

Gurprinder Kaur gave a deposition on February 25, 2016.

Kaur volunteers at the Sikh temple. On the day of the assault, she saw Manjit and 

Ravinderjit had “got[ten] ahold” of a man on the ground. Kaur initially testified that Manjit 

had a turban on as he was holding the man, but at some point, it fell off. She later testified 

that the turban was already on the ground when she arrived at the scene. Kaur did not 

remember the color of the turban. Manjit’s yellow patka “moved a little bit” but was “still 

there.” Manjit later put his turban back on.

Manjit had a bloody nose, his pants were torn, and he was bleeding form the arms 

and legs. Manjit went to the hospital after the assault and missed work.

A group of people at the temple helped catch one of the assailants. Kaur helped this 

group. People from the group asked the assailant, “Who has sent you?” The man 

responded, “Sammy.” He repeated it three times. Ravinderjit said that was her uncle’s 

name.

Detective Brunsell

Detective Brunsell gave a deposition on February 20, 2018.

Brunsell investigated the assault on Manjit. Manjit conveyed to Brunsell that 

defendant’s wife told him that defendant had been involved in the assault. Brunsell did not 

obtain her statement because he was concerned for her safety, and he knew that any 

statement would be inadmissible under the marital privilege.

Brunsell had Manjit conduct several “pretext calls” with defendant. The first 

occurred on March 3 and was transcribed by a certified Punjabi interpreter. No calls other 

than the March 3rd call were sent to the certified interpreter in Fresno.

After the first pretext call, Brunsell gave Manjit a digital recorder and told him to 

record any future contact with defendant. Manjit told Brunsell about subsequent recordings, 
16

but Brunsell testified he did not think he ever “actually took those into ... custody.” Manjit 

described the subsequent calls to Brunsell as “just more of the same” type of conversation 

from the March 3 call.

Tejpal identified Negrete as an assailant. Negrete was subsequently arrested and 

initially cooperated with law enforcement. Brunsell told Negrete that, because of his 

involvement with the investigation, Brunsell could talk to the district attorney on Negrete’s 

behalf. Negrete did ultimately receive a reduced sentence.

In his first interview with Brunsell, Negrete said defendant drove a 5 series BMW 

and provided the license plate number. Brunsell was clear that he did not provide the 

license plate number to Negrete nor would he “ever do something like that.”

According to Brunsell’s report, Manjit said he had been wearing a white turban on 

top of an orange turban. Brunsell did not recall whether Manjit said one or both turbans 

were taken.

When Brunsell obtained the “call data” for defendant and Negrete, he did not have 

the detailed information identifying cell phone towers.21 Later, Brunsell said he did not 

recall whether the data on defendant’s phone showed what cell tower he was close to when a 

call was placed. Brunsell testified, “I think after reviewing some of the report that we had to 

go back with Mr. Negrete and go through the phone numbers and he identified phone 

numbers that we would commonly refer to as burner phone numbers that he contacted Mr. 

Singh on.”

Manjit Singh

The trial court summarized Manjit’s testimony as follows.22

21 A search warrant dated February 24, 2011, seeking defendant’s phone records was 

attached to defendant’s postconviction motion to dismiss. The records sought included “cell 

site location information from any and all telephones called or being called by each target 

number.” Detective Brunsell’s statement of probable cause said the records sought “could 

also be used to track suspects[’] movements before, during, and after a crime.”

22 The following is from the postconviction court’s ruling, except that references to 

“petitioner” have been changed to “defendant.”
17

Defendant is his wife’s uncle, and he has known him since 1991, however, has only 

seen him a couple of times. In the two or three in-person meetings between 1991 and 2000, 

petitioner never threatened him.

Defendant disapproved of the marriage due to the caste difference. Defendant 

threatened harm to him over the marriage.

He received threatening phone calls from defendant as a result of allowing 

defendant’s wife to live with them for about seven to 10 days after defendant kicked her out 

of the house. Defendant was threatening to do horrible things to him and telling him that he 

(Manjit) only had two weeks to live. After receiving a call at work, he called the police and 

asked to press charges. He was impeached with the police report, which indicated he did 

not want to pursue legal action.

He has been wearing a turban since he was five years old due to his Sikh religion. 

He’s required to wear a turban at the temple. The turban is considered a symbol of dignity 

and respect. He was wearing a light-yellow turban at the time of the incident. His turban 

went off his head during the attack. He does not know where the turban went and believes 

somebody took it. In a photo shown to him (defendant’s exhibit N), he identified an orange 

cloth in his lap as a handkerchief. He grabbed the handkerchief so he would not have a bare 

head.

He did give the detective the license number of defendant’s white BMW.

During the investigation, he worked with Detective Brunsell to make pretext phone 

calls. He did not remember the number of times he called to do a pretext call wherein he 

received no answer. During the successful pretext call, he was not told to make defendant 

mad or what to say to defendant by the detective.

He did file a lawsuit against defendant alleging a conspiracy to assault him. He seeks 

money damages, which include $79,000 for lost wages.

In his deposition in 2017, he denies the claims of those stating he asked them to lie 

about the incident, as set forth herein below. The remainder of his deposition testimony is 
18

consistent with his trial testimony, but for some lapses in his memory. In the deposition, he 

describes the turban as being cream color and his patka, worn under the turban, as orange.

Additional Deposition Testimony

Manjit also testified that he could not recall any contact he had with defendant from 

2003 to 2011. Manjit saw Negrete running away from the scene of the assault with a turban 

tucked under his left arm.

On the day of the assault, Manjit did not mention to law enforcement that his turban 

had been stolen. Nor did he relay the assailant’s identification of defendant. Manjit 

testified that while his turban was important, conveying the details concerning his children 

and his injuries was more urgent.

Manjit testified that he thought there were two pretext calls between him and 

defendant. The first was more than 10 minutes and the second was “probably” more than 20 

minutes. Detective Brunsell was also with Manjit during the second call, which was 

recorded. Manjit believed he had a transcript for both calls.

Manjit “believe[s]” Mandeep also had a pretext call with defendant.

III. Postconviction Criminal Proceedings

On January 9, 2017, defendant filed what he referred to as a petition for writ of 

habeas corpus (habeas petition). Though framed as a habeas petition, defendant cited 

extensively to section 1473.7, which concerns motions to vacate a conviction. (See 

§ 1473.7.)

Defendant contended that there was newly discovered evidence of his actual 

innocence. Specifically, defendant pointed to a declaration Jorge Negrete executed on 

July 12, 2016, and to his deposition in a civil case on October 20, 2016. He primarily relies 

on the following claims Negrete made in those two instances:

• Defendant never “spoke to me, hire[d] me, or pay [sic] me any money to 

assault the victim.” An individual named Singh told him one of his “buddies” 

had an issue out of Bakersfield.
19

• Detective Brunsell repeatedly urged Negrete to select defendant in a 

photographic lineup, but Negrete said, “it’s not the same guy.” The person 

who paid Negrete was known as “Singh” and was about 40 years old – much 

younger than defendant.

• Negrete “only knew of the license plate number because [Detective] Brunsell 

told him the number.”

• Negrete implicated defendant because Detective Brunsell and the district 

attorney pressured him to cooperate to ensure his own “deal” and his 

nephew’s deal.

On March 27, 2018, defendant filed a motion to dismiss based on alleged 

loss/destruction of evidence by law enforcement.

In a ruling dated June 8, 2019, the court found that even if law enforcement failed to 

retain certain evidence, it was not done in bad faith. The court also ruled that much of the 

evidence relied on by defendant was not “newly discovered.” Finally, the court found that 

“Negrete has no credibility with this court.” The court denied defendant’s motion and 

petition for writ of habeas corpus. Defendant appeals.

DISCUSSION

I. Defendant Has Not Met the Standard Applicable to Raising 

Loss/Destruction/Fabrication of Evidence Issues in an Out-of-Custody, 

Postconviction Motion to Vacate

In his March 27, 2018, motion to dismiss, defendant raised the issue of 

loss/destruction of evidence. At the outset, we must identify the statutory basis for such a 

motion, as it will dictate the type of showing defendant was required to make below. 

Defendant references several potential grounds for postconviction relief, including: sections 

1473.6, 1473.7, 1385, and the law governing writs of habeas corpus (see § 1473). As 

explained below, only section 1473.6 provides even a potential basis for defendant’s claims 

regarding lost/destroyed evidence.
20

First, we consider section 1385. That statute authorizes judges to order an action 

dismissed “in furtherance of justice.” (§ 1385, subd. (a).) However, this provision does not 

support the type of postconviction relief defendant seeks because it is an “established 

principle that section 1385 does not authorize dismissals after a judgment has become final, 

...” (People v. Wiley (2019) 36 Cal.App.5th 1063, 1068; see also People v. Chavez (2018) 4 

Cal.5th 771, 777.)

Next, we note that writs of habeas corpus may be prosecuted on the basis of false 

evidence. (§ 1473, subd. (b)(1)–(2).) However, such writs may only be prosecuted by 

persons “unlawfully imprisoned or restrained of their liberty, ...” (Id., subd. (a).) See 

People v. Morales (2018) 25 Cal.App.5th 502, 511–512.) Defendant is not such a person.23

In contrast, section 1473.7 does apply to persons who are “no longer in criminal 

custody.” (§ 1473.7, subd. (a).) However, such a person may file a motion to vacate their 

conviction or sentence for only three specific reasons:

“(1) The conviction or sentence is legally invalid due to prejudicial 

error damaging the moving party’s ability to meaningfully understand, defend 

against, or knowingly accept the actual or potential adverse immigration 

consequences of a conviction or sentence. A finding of legal invalidity may, 

but need not, include a finding of ineffective assistance of counsel.

“(2) Newly discovered evidence of actual innocence exists that requires 

vacation of the conviction or sentence as a matter of law or in the interests of 

justice.

“(3) A conviction or sentence was sought, obtained, or imposed on the 

basis of race, ethnicity, or national origin in violation of subdivision (a) of 

Section 745.”

Loss/destruction of evidence is not an enumerated ground for making an out-ofcustody motion to dismiss under section 1473.7. (See § 1473.7, subd. (a).) 

23 Because defendant’s claims regarding lost/destroyed evidence can only be sought 

under section 1473.6, and not habeas generally, defendant’s reliance on authorities like 

California v. Trombetta (1984) 467 U.S. 479, Arizona v. Youngblood (1988) 488 U.S. 51, 

People v. Fultz (2021) 69 Cal.App.5th 395, and People v. Alvarez (2014) 229 Cal.App.4th 

761, are misguided. Section 1473.6, subdivision (a) sets forth standards that are different 

than those set forth in “exculpatory evidence” cases.
21

That leaves only section 1473.6 as a plausible basis for defendant’s claims related to 

lost or destroyed evidence. That statute permits a motion to vacate judgment24 for the 

following reasons:

“(1) Newly discovered evidence of fraud by a government official that 

completely undermines the prosecution’s case, is conclusive, and points 

unerringly to his or her innocence.

“(2) Newly discovered evidence that a government official testified 

falsely at the trial that resulted in the conviction and that the testimony of the 

government official was substantially probative on the issue of guilt or 

punishment.

“(3) Newly discovered evidence of misconduct by a government 

official committed in the underlying case that resulted in fabrication of 

evidence that was substantially material and probative on the issue of guilt or 

punishment. Evidence of misconduct in other cases is not sufficient to 

warrant relief under this paragraph.” (§ 1473.6, subd. (a)(1)–(3).)

Defendant argues that the alleged “destruction” of certain evidence by law 

enforcement falls under these categories. For the sake of argument, we will assume that 

destruction of evidence can constitute “fraud” as used in subdivision (a)(1). Because it is 

the only possible basis for defendant’s claims regarding lost/destroyed evidence, we will 

apply section 1473.6 to those claims.25

At this point, it is important to observe that section 1473.6, subdivision (a)(1) sets a 

very high bar for relief. Indeed, postconviction relief is almost universally difficult to 

obtain, and for good reason. Society has a legitimate interest in the finality of its criminal 

judgments. (In re Martinez (2017) 3 Cal.5th 1216, 1231.) “ ‘If a criminal defendant has 

unsuccessfully tested the state’s evidence at trial and appeal and wishes to mount a further, 

collateral attack, “ ‘all presumptions favor the truth, accuracy, and fairness of the conviction 

and sentence; defendant thus must undertake the burden of overturning them. Society’s 

24 Defendant incorrectly argues that this statute provides for habeas relief, rather than 

a motion to vacate conviction.

25 Therefore, we conclude the court had jurisdiction to consider the motion pursuant 

to this statute. However, we also conclude that defendant failed to establish entitlement to 

relief under the statute.
22

interest in the finality of criminal proceedings so demands[.]’ ” ’ [Citation.]” (Ibid, italics 

removed.)

Here, subdivision (a)(1) lays the difficult burden on defendants to provide “[n]ewly 

discovered evidence of fraud by a government official that completely undermines the 

prosecution’s case, is conclusive, and points unerringly to his or her innocence.” (§ 1473.6, 

subd. (a)(1).) This provision is not satisfied by new evidence that is merely adverse to the 

prosecution’s case. It must completely undermine the prosecution’s case by conclusively

and unerringly pointing to defendant’s innocence.

As described below, defendant’s failure to appreciate that section 1473.6 is the only 

potential ground for relief leads him to argue the wrong standard for proving entitlement to 

postconviction relief. When the standard set forth in section 1473.6 is applied, defendant’s 

claims clearly lack merit.

Mandeep Mann Pretext Call

For example, defendant argues that the purportedly missing Mandeep Mann pretext 

call constituted “exculpatory evidence,” because defendant denied culpability on the call. 

Additionally, defendant contends the evidence would have undermined the prosecutor’s 

argument there was no way for defendant to have known about certain details of the assault 

before his pretext call with Manjit.26

However, “exculpatory” is not the appropriate standard for determining whether 

newly discovered evidence satisfies section 1473.6, subdivision (a)(1). Rather, the statute 

requires evidence that “completely undermines the prosecution’s case, is conclusive, and 

points unerringly to [defendant’s] innocence.” (§ 1473.6, subd.(a)(1).)27 This is a much 

26 Defense counsel contended at oral argument that this triggers subdivision (a)(3) of 

section 1473.6, which deals with the fabrication of evidence. However, this claim does not 

involve fabrication of evidence. Rather, defendant is asserting that the prosecutor made an 

improper argument in light of law enforcement’s purported failure to retain evidence. Thus, 

subdivision (a)(3) is not applicable.

27 This assumes that failure to retain a pretext call even constitutes “fraud” by a 

government official under section 1473.6, subdivision (a)(1) – an assumption we highly 
23

higher standard than determining whether the evidence was merely “exculpatory.” 

Consequently, even assuming defendant’s characterization of the situation is accurate – that 

law enforcement failed to retain the pretext call and the pretext call would have shown 

defendant denying involvement – his claim fails at the outset. Evidence of a defendant’s 

self-interested denial of responsibility for a crime – though marginally “exculpatory” – does 

not “completely undermine[] the prosecution’s case” and it does not conclusively point 

unerringly to defendant’s innocence. Similarly, while the call could have had some utility to 

the defense as a potential explanation for defendant’s purported knowledge of certain details 

during the pretext call with Manjit, it does not rise to the level of “completely undermining” 

the prosecution’s case.

Phone Records

The same can be said of defendant’s claim regarding the purported failure to book 

into evidence or disclose to the defense, phone records showing “no cellular connection 

between [defendant] and Negrete.” Again, even assuming defendant’s characterization of 

these records and of law enforcement’s related conduct (or misconduct) was unassailable, 

this evidence would still fail to meet the standard of section 1473.6. That defendant and 

Negrete did not speak on their phones to one another does not conclusively point unerringly 

to defendant’s innocence. The two could have spoken on other phones, could have 

communicated through intermediaries, or could have communicated by other means.

Defendant speculates that cell site detail in the original records might have shown 

that he and Negrete were not in physical proximity to one another during the relevant time 

periods. However, defendant acknowledges that the phone records he provided in the 

proceedings below did not contain cell site location detail because it was no longer 

available. It is therefore clear that defendant has not shown that the cell site location detail 

would have conclusively pointed unerringly to his innocence.

doubt. Nonetheless, we will indulge it temporarily to explain why defendant’s claim fails 

regardless.
24

Manjit’s Pretext Calls

Defendant’s claims regarding recordings of pretext calls between himself and Manjit 

Singh in March and April fail for similar reasons. Defendant contends law enforcement 

“discarded” the recordings as “unhelpful.” He then contends that evidence that is not 

helpful to the prosecution is “necessarily helpful to the defense, or at least could be.” Even 

if true, defendant’s urged inference that the recordings “could” have been “helpful” is not 

the same as affirmatively showing the recordings would “completely undermine[]” 

(§ 1473.7, subd. (a)) the prosecution’s case.

In addition, we note that the trial court found that if it were assumed that law 

enforcement did collect and fail to preserve additional pretext calls between Manjit and 

defendant, it was not done “in bad faith.” The court found it reasonable for Detective 

Brunsell to accept Manjit’s representation that the additional calls had no value. Defendant 

argues it was not reasonable for Detective Brunsell to rely on Manjit’s assertion. However, 

the ultimate question is not whether Detective Brunsell’s failure to preserve the additional 

pretext calls was reasonable, but whether it was fraudulent. Even assuming, without 

deciding, that best practices would have counseled to retain the pretext calls, it has not been 

shown that the failure to do so was “fraud” as referenced in section 1473.6. 

II. Defendant is not Entitled to Relief Under Section 1473.7

Defendant also seeks postconviction relief on grounds other than lost/destroyed 

evidence. He contends his conviction must be vacated based on evidence that he is innocent 

of the crime for which he was convicted.

Law

Generally, persons no longer in custody or otherwise legally restrained cannot seek a 

writ of habeas corpus. (See People v. Morales (2018) 25 Cal.App.5th 502, 511–512; see 

also § 1473, subd. (a) [a person “unlawfully imprisoned or restrained of their liberty ... may 

prosecute a writ of habeas corpus”].) However, in certain circumstances, such persons may 

bring a postconviction motion to vacate under section 1473.7. (§ 1473.7, subd. (a).)
25

One basis for a motion to vacate under section 1473.7 is found in subdivision (a)(2). 

A person no longer in criminal custody may move to vacate their conviction or sentence on 

the grounds that “[n]ewly discovered evidence of actual innocence exists that requires 

vacation of the conviction or sentence as a matter of law or in the interests of justice.”

(§ 1473.7, subd. (a)(2).)

The motion must be filed “without undue delay from the date the moving party 

discovered, or could have discovered with the exercise of due diligence, the evidence that 

provides a basis for relief.” (§ 1473.7, subd. (c).)

The statute does not define “evidence of actual innocence.” However, from its use in 

closely related contexts, it is clear that “evidence of actual innocence” is that which 

undermines the entire prosecution case and points unerringly to innocence. (In re Lawley 

(2008) 42 Cal.4th 1231, 1239; see also § 1473.6.28) If a reasonable jury could have rejected 

the evidence, it does not suffice as newly discovered evidence of actual innocence. (In re 

Lawley, supra, 42 Cal.4th at p. 1239.) That is, defendant must show that, in light of all the 

evidence, no reasonable juror would have convicted him.

“Newly discovered” evidence is that which is discovered after trial and could not 

have been discovered earlier with reasonable diligence. (People v. Perez (2020) 47 

Cal.App.5th 994, 999.)

It is the defendant’s burden to establish grounds for relief under section 1473.7, 

subdivision (a) by a preponderance of the evidence. (See § 1473.7, subd. (e)(1); People v. 

Perez, supra, 47 Cal.App.5th at p. 997.) When a defendant relies on subdivision (a)(2), he 

or she must prove by a preponderance of the evidence that newly discovered evidence of 

actual innocence requires vacation of the conviction or sentence as a matter of law or in the 

interests of justice. (§ 1473.7, subds. (a)(2) & (e)(1).)

28 To the extent defendant suggests the phrase as used in section 1473.7, means 

something substantially different than other postconviction contexts, we are unpersuaded. 

Moreover, we see no functional difference between this definition from the standards 

proposed by defendant.
26

It is important to note that while preponderance of the evidence is a relatively lower 

burden of proof than other criminal contexts, the fact to be proven by such evidence is 

difficult to establish: that there exists newly discovered evidence of actual innocence that 

requires vacation of the conviction or sentence as a matter of law or in the interests of 

justice. In other words, that it is more likely that not that no reasonable juror would have 

convicted in light of the new evidence. Here, the trial court found defendant failed to carry 

his burden to prove such evidence exists. We agree. As explained, the evidence defendant 

cites is either not “newly discovered”; or not evidence of “actual innocence” requiring relief 

“as a matter of law or in the interests of justice”; or both.

Negrete’s Posttrial Evidence

Defendant points to Negrete’s posttrial claim that Detective Brunsell urged him to 

select defendant in a photographic lineup even though it was “not the same guy.” This 

evidence, while exculpatory, is not “newly discovered.” The defense investigator testified 

at trial that Negrete claimed the detective administering the photographic lineup coerced 

him. Negrete said he had “selected” someone in a photographic lineup, and the detective 

responded that Negrete had “picked the wrong guy.”

Defendant also observes that Negrete claimed he “only knew of the license plate 

number because [Detective] Brunsell told him the number.” Again, this claim was not new. 

The defense investigator testified at trial that Negrete claimed he recited the license plate 

number from a photograph the detective had showed him.29 The defense investigator 

testified that Negrete said he could not identify any car’s make or year or model. Negrete 

also told the defense investigator that the law enforcement personnel who interviewed him 

had told him “what the year of the BMW was.”

Defendant also points to several instances after trial where Negrete stated defendant 

was not the man who hired or paid him. However, defendant has not shown that this 

“evidence” was “newly discovered.” To the contrary, Negrete testified to that effect at 

29 The reporter’s transcript says “defendant” showed him the photograph. Both 

parties agree this should have said “detective.”
27

defendant’s trial.30 When asked if he saw in the courtroom the person who paid him to 

commit the assault, Negrete testified, “No.” When asked if he had previously identified 

defendant in a photographic lineup, Negrete testified, “That’s not even the guy. He looks a 

lot different. That’s not even him.” When asked if defendant was the person who had paid 

him in Van Nuys, Negrete testified, “It was another guy that I met with in Van Nuys that 

paid me the money. I had said that.” Because this evidence was available and offered at 

trial, it was not “newly discovered.” 

Defendant counters that Negrete also offered testimony at the preliminary hearing 

and at trial implicating defendant as the man who hired him. Defendant acknowledges, “To 

be sure, Negrete made inconsistent statements, but was always brought around to testify 

[defendant] was his co-conspirator.” Defendant is incorrectly conflating evidence that 

contradicts trial testimony with evidence that is “newly discovered.” It is true that Negrete 

made some inculpatory statements at the preliminary hearing and at trial, and that those 

statements are contradicted by his exculpatory posttrial statements. But that is a different 

issue than whether Negrete’s posttrial exculpatory statements were “newly discovered.”

A hypothetical will illustrate the distinction. Imagine a witness to a car collision 

initially testified at trial that a particular traffic light was red when the collision occurred and 

then later testified in the same trial that the traffic light was, in fact, green when the collision 

occurred. Then, imagine that after trial, the witness executed a declaration stating the traffic 

light was red. While the declaration would contradict some of the witness’s trial testimony 

(i.e., the testimony that the light was green), it would still not be considered “newly 

discovered” evidence because it had already been conveyed by other portions of the 

witness’s trial testimony (i.e., the testimony that the light was red). It would not be fruitful 

to argue that while the testimony was “inconsistent,” the witness did eventually “come 

around to testify” that the traffic light was green. The point is that the witness testified at 

one point that the light was red, and therefore repeating that same claim after trial is not

30 Negrete identified defendant at the preliminary hearing but offered different 

testimony at trial.
28

“newly discovered evidence.” Similarly, here, the fact that Negrete’s posttrial declaration 

contradicted some of his testimony incriminating defendant does not preclude the finding 

that the evidence is not “newly discovered.” The dispositive point here is not that Negrete 

may have lied at trial, but rather – as the postconviction court put it – that his purported lies 

and coerced testimony were discovered prior to the conclusion of trial.

Defendant notes that while Negrete testified at trial that defendant was not the person 

who paid him, he did testify that defendant was present when he was paid. Negrete also 

testified that he met with defendant before the incident, and that defendant was the one who 

arranged for him to go to Bakersfield and commit the “crime.” However, while Negrete 

identified defendant at the preliminary hearing as the second person he met with prior to the 

assault, at trial he testified that, in fact, defendant “[d]oesn’t even look like him.” Again, 

this is a situation where Negrete’s incriminating claims and his statements undermining 

those claims were both before the jury.

Moreover, even if it were clear that Negrete offered some incriminating testimony 

that was undermined for the first time by his postconviction statements (rather than by 

statements made before or at trial), it would not suffice here. Because while such evidence 

would arguably be “newly discovered,” its lack of credibility prevents it from rising to the 

level of “evidence of actual innocence ... that requires vacation of the conviction or 

sentence as a matter of law or in the interests of justice.” (§ 1473.7, subd. (a)(2), italics 

added.) Put another way, if a reasonable jury could have rejected the evidence, it does not 

suffice as postconviction evidence of actual innocence. (In re Lawley, supra, 42 Cal.4th at 

p. 1239.)

Here, the postconviction court found that Negrete’s posttrial statements concerning 

false information purportedly fed by law enforcement were not credible. We find no fault 

with that credibility determination.31 Negrete’s posttrial statements accuse Detective 

31 Defendant agrees that we review factual matters presented under a standard 

deferential to the lower court. Even if that were not the case, we would independently 

conclude Negrete’s posttrial statements lack credibility.
29

Brunsell of blatant misconduct during recorded interviews and contradict his prior 

statements at preliminary hearing. Detective Brunsell emphatically denied the accusation. 

We also note that Negrete had previously been imprisoned for selling drugs. (See Evid. 

Code, § 788.) Because we agree that Negrete’s posttrial statements are not credible, they 

are not sufficient to carry defendant’s burden on a motion under section 1473.7, subdivision 

(a)(2).32

Manjit’s Turban

None of the remaining evidence cited by defendant entitles him to postconviction 

relief.

Defendant observes that Manjit did not tell law enforcement about the turban on the 

day of the incident. He points to evidence such as the police report, which does not mention 

any claim by Manjit that his turban was stolen. Defendant argues that Manjit even admitted 

on the pretext call that his turban had not been stolen.33 Again, this information was 

available before trial and cannot constitute “newly discovered” evidence.

Defendant also points to the civil deposition testimony from several witnesses –

including Tejpal, Rai, Jobanjit and Kaur as described above – indicating that Manjit had a 

turban after the attack. However, defendant has merely established a conflict in the 

evidence. In contrast to the evidence cited by defendant there is also considerable evidence 

that Manjit’s turban was stolen – not the least of which is Negrete’s admission at trial that 

he indeed took Manjit’s turban.34 In addition, Manjit repeatedly maintained under oath that 

32 Defendant’s speculation in his briefing that law enforcement could have conveyed 

information to Negrete secretly during his two months in custody or while Detective 

Brunsell was alone with Negrete in a car or interrogation room is similarly unpersuasive and 

lacking in credibility.

33 Manjit testified at his deposition that he told defendant he had the turban just to get 

more information out of him.

34 Defendant points to Negrete’s statements during his initial interview with 

Detective Brunsell and at the preliminary hearing, indicating he did not take Manjit’s 

turban. Again, this is not newly discovered evidence, having arisen before trial.

After trial, Negrete testified in his civil deposition that he was “under the influence” 

at the time and did not recall whether he took Manjit’s turban or not. Later in the 
30

his turban was gone (though he retained his orange patka). Ravinderjit also testified at trial 

that Manjit’s turban was gone, and he never got it back.

Thus, there is no doubt that some testimony from the witnesses in civil depositions 

taken years after defendant’s conviction are contrary to Manjit’s claims about the turban. 

However, as explained above, none of it constitutes newly discovered evidence of “actual 

innocence that requires vacation of the conviction or sentence as a matter of law or in the 

interests of justice.” (§ 1473.7, subd. (a)(2).)

Jobanjit’s Testimony Regarding Assailant’s Statement

Defendant next points to Jobanjit’s posttrial testimony that Manjit told him to tell 

police that an assailant had said, “Sehmbey sent me.” But, as defendant acknowledges, the 

“Sehmbey sent me” statement was not introduced at his trial.

Jobanjit’s Recording of Manjit

In his reply brief, defendant cites to a portion of the police report referencing a video 

recording Jobanjit made of Manjit speaking to deputies after the incident. Defendant says 

the video “could have” shed light on whether Manjit had his turban. Such speculation does 

not suffice to carry defendant’s evidentiary burden.

Manjit’s Article

In his civil deposition, Manjit testified that he wrote an “article” in Punjabi. A 

Punjabi to English translation of the article was used as an exhibit to Manjit’s deposition. 

While Manjit did not accept every word of the translation document, he agreed that the gist 

deposition, Negrete testified that he did not “think” they took the turban and repeated that he 

did not “even remember taking the turban.” Negrete initially testified he did not recall 

saying he took the turban at trial because they (prosecution/law enforcement) wanted him to. 

Negrete then immediately testified that he “believe[d] so because they kept saying about 

that turban. Turban. Turban. Even the detective, turban. You took that turban with you. 

You took that turban.” This testimony, as a whole, is far from a clear denial of ever taking 

the turban. Even if it were a clear denial, it would merely establish a conflict with the 

evidence introduced at trial. Also, as noted herein, the trial court found Negrete lacks 

credibility – a determination with which we concur. In sum, this testimony is not evidence 

that defendant was actually innocent, requiring vacation of conviction as a matter of law or 

in the interests of justice.
31

of the translation was correct as to the subject-matter of the following excerpt: “Manjit 

Singh asked a third question regarding his [the attacker’s] relationship with the person who 

had sent him. The attacker began to reveal his illicit relationship with the daughter of the 

man who sent him but the women gathered in the crowd started to beat him leaving his 

response incomplete.”

Manjit testified in his deposition that this portion of the article he wrote was not true. 

However, Manjit explained that his articles contained both fiction and nonfiction elements.

Defendant says this testimony establishes Manjit’s “lying character.” Even if we 

disregarded Manjit’s claim that his articles were not purely works of nonfiction, defendant’s 

claim fails because he did not raise it below. (See People v. McCullough (2013) 56 Cal.4th 

589, 593 [rights of criminal defendants can be forfeited by failure to make a timely assertion 

before a tribunal having jurisdiction to determine it].)

DISPOSITION

The June 8, 2019 order denying defendant’s claims for postconviction relief is 

affirmed.

POOCHIGIAN, Acting P. J.

WE CONCUR:

FRANSON, J.

SNAUFFER, J.