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Filed 2/6/24 P. v. Singer CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

KENNETH GENE SINGER, III,

Defendant and Appellant.

 A167198

 (Lake County

 Super. Ct. No. CR2656)

In 1989, a jury found defendant Kenneth Gene Singer, III, guilty of 

first degree murder and second degree robbery and found he personally used 

a firearm in the commission of the offenses. Singer, who was 21 years old 

when he committed the offenses, was sentenced to life in prison without the 

possibility of parole. 

In 2022, Singer filed a petition for recall and resentencing pursuant to 

Penal Code section 1170, subdivision (d) (§ 1170(d)). The trial court denied 

the petition on the ground the recall and resentencing procedure is available 

only to defendants who were under 18 years old when they committed the life 

offense, but Singer was 21 years old when he committed his offense. 

On appeal, Singer contends he is eligible for recall and resentencing 

because section 1170(d)(8)(B) provides that youth is a factor to be considered 

in resentencing and a “youth” is any person who was under 26 years old when 
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the offense was committed. We reject Singer’s reading of section 1170(d) and 

therefore affirm the trial court’s order denying his petition. 

DISCUSSION

We review questions of statutory interpretation de novo. (MacIsaac v. 

Waste Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 

1081–1082.) Our task is to determine the Legislature’s intent, and we first 

“look to the words of the statute themselves.” (Id. at p. 1082.) “If the 

statutory language is clear and unambiguous, our task is at an end, for there 

is no need for judicial construction.” (Id. at p. 1083.) Accordingly, we begin 

with the language of section 1170(d). 

Subparagraph (d)(1) identifies who is eligible to file a petition for recall 

and resentencing. It specifies that “a defendant who was under 18 years of 

age at the time of the commission of the offense for which the defendant was 

sentenced to imprisonment for life without the possibility of parole has been 

incarcerated for at least 15 years . . . may submit to the sentencing court a 

petition for recall and resentencing,” so long as the defendant did not torture 

the victim and the victim was not a public safety official. (§ 1170(d)(1)(A) and 

(B), italics added.) 

Subparagraph (d)(2) sets forth the requirements for a petition. “The 

petition shall include the defendant’s statement that the defendant was 

under 18 years of age at the time of the crime and was sentenced to life in 

prison without the possibility of parole, the defendant’s statement describing 

their remorse and work towards rehabilitation, and the defendant’s 

statement that one of [four specified circumstances] is true.” (§ 1170(d)(2), 

italics added.)1 

1 A petition must include a statement that one of the four following 

circumstances is true: “(A) The defendant was convicted pursuant to felony 
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If a trial court determines that one or more of the four specified 

circumstances applies, then subparagraph (d)(5) requires the court to “recall 

the sentence and commitment previously ordered and hold a hearing to 

resentence the defendant in the same manner as if the defendant had not 

previously been sentenced . . . .” (§ 1170(d)(5).)

Subparagraphs (d)(6) through (9) and (11) of section 1170 provide 

guidance to the trial court at the resentencing stage. 

As relevant to Singer’s appellate claim, subparagraph (d)(8) provides in 

part: “[T]he court may also resentence the defendant to a term that is less 

than the initial sentence if any of the following were a contributing factor in 

the commission of the alleged offense: [¶] (A) The person has experienced 

psychological, physical, or childhood trauma, including, but not limited to, 

abuse, neglect, exploitation, or sexual violence. [¶] (B) The person is a youth 

or was a youth as defined under subdivision (b) of Section 1016.7 at the time 

of the commission of the offense. [¶] (C) Prior to the instant offense, or at the 

time of the commission of the offense, the person is or was a victim of 

intimate partner violence or human trafficking.” (§ 1170(d)(8), italics added.) 

A “youth” under section 1016.7, subdivision (b), is “any person under 26

years of age on the date the offense was committed.” 

murder or aiding and abetting murder provisions of law. [¶] (B) The 

defendant does not have juvenile felony adjudications for assault or other 

felony crimes with a significant potential for personal harm to victims prior 

to the offense for which the sentence is being considered for recall. [¶] (C) 

The defendant committed the offense with at least one adult codefendant. 

[¶] (D) The defendant has performed acts that tend to indicate rehabilitation 

or the potential for rehabilitation, including, but not limited to, availing 

themselves of rehabilitative, educational, or vocational programs, if those 

programs have been available at their classification level and facility, using 

self-study for self-improvement, or showing evidence of remorse.” 

(§ 1170(d)(2).) 
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Singer contends “the inclusion of subdivision (d)(8)(B) in section 1170, 

makes him eligible for resentencing because he was under the age of 26 years 

at the time the murder was committed.” The language of section 1170(d) 

clearly and unambiguously provides otherwise. The eligibility requirements

of section 1170(d)(1) include the circumstance that the defendant “was under 

18 years of age at the time of the commission of the offense for which the 

defendant was sentenced to imprisonment for life without the possibility of 

parole.” Further, a compliant petition must include a “statement that the 

defendant was under 18 years of age at the time of the crime and was 

sentenced to life in prison without the possibility of parole.” (§ 1170(d)(2).) 

Section 1170(d)(8), on the other hand, identifies circumstances that 

may be considered at the resentencing stage, but it does not expand the pool 

of defendants who are eligible to petition for recall and resentencing in the 

first place. Section 1170(d)(8)(A), for example, allows a court to consider the 

circumstance that “psychological, physical, or childhood trauma” was a 

contributing factor in the offense, but this cannot plausibly mean that anyone 

who has experienced trauma is now eligible for recall and resentencing under 

section 1170(d).

Singer argues we should nonetheless read section 1170(d)(8)(B) to 

mean he is eligible for recall and resentencing under the “rule of lenity.” 

Under this rule, “when a statute defining a crime or punishment is 

susceptible of two reasonable interpretations, the appellate court should 

ordinarily adopt that interpretation more favorable to the defendant.” 

(People v. Avery (2002) 27 Cal.4th 49, 57.) “ ‘The rule [of lenity] applies only 

if the court can do no more than guess what the legislative body intended’ ”; it 

does not apply “ ‘unless two reasonable interpretations of the same provision 

stand in relative equipoise, i.e., that resolution of the statute’s ambiguities in 
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a convincing manner is impracticable.’ ” (Id. at p. 58.) The rule does not 

apply in this case because section 1170(d) is not ambiguous. Moreover, even 

assuming ambiguity, we would not construe section 1170(d)(8)(B) in a 

manner that would implicitly repeal an eligibility requirement clearly stated

in section 1170(d)(1). (See Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th 

627, 637 [“Repeals by implication are disfavored”].)2 

DISPOSITION

The order denying defendant’s petition for recall and resentencing is 

affirmed.

2 Singer argues for the first time in his reply that the trial court’s 

reading of the statute renders section 1170(d)(8)(B) superfluous and should 

be rejected. We do not consider arguments raised for the first time in reply. 

(People v. Newton (2007) 155 Cal.App.4th 1000, 1005).
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_________________________

Miller, J.

WE CONCUR:

_________________________

Richman, Acting P.J.

_________________________

Mayfield, J.*

A167198, People v. Singer

* Judge of the Mendocino Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.