California Court of Appeal Mar 16, 2022 No. E073965MPublished
Filed 3/16/22 (unmodified opn. attached) CERTIFIED FOR PUBLICATION
COURT OF APPEAL -- STATE OF CALIFORNIA FOURTH DISTRICT DIVISION TWO
THE PEOPLE, E073965 Plaintiff and Respondent,
v. (Super.Ct.No. SICRF1989169810)
The County of Inyo JODY ANN CLEMENTS, Defendant and Appellant. ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING [No Change in Judgment] ______________________________________
THE COURT
The petition for rehearing is denied. The Opinion filed in this matter on February 16, 2022, is modified to add the following after the last paragraph prior to the disposition:
Clements argues in a petition for rehearing that we should review the trial judge’s
ruling independently, rather than for substantial evidence, because his inquiry was limited
to a cold record—the trial transcript and prior appellate decision—without observation of
live testimony. She points out correctly that the trial judge did not preside over the
original trial in this matter, which occurred before he took the bench. She argues under
these circumstances the trial judge has no advantage over us when making factual
findings, and that we should not defer to his findings. However, our Supreme Court has
held in the context of a Proposition 36 petition for recall of sentence that “even if the trial
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court is bound by and relies solely on the record of conviction to determine eligibility,
[where] the question . . . remains a question of fact . . . we see no reason to withhold the
deference generally afforded to such factual findings.” (People v. Perez (2018) 4 Cal.5th
1055, 1066.)
Clements relies on People v. Vivar (2021) 11 Cal.5th 510, 524 (Vivar). In Vivar,
choice to “accord finality to the findings of a statewide agency that are supported by
substantial evidence on the record considered as a whole” rather than require
independent judgment review], italics added; Topanga Assn. for a Scenic Community v.
County of Los Angeles (1974) 11 Cal.3d 506, 515 [“If the Legislature had desired
otherwise, it could have declared as a possible basis for issuing mandamus the absence of
substantial evidence to support the administrative agency’s action”].)
The trial judge and the People analogize the trial judge’s task with a substantial
evidence review on the basis of the statute’s use of the word “could” in subdivision (a).
They argue that if Clements is eligible only if she “could not be convicted,” then the
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People were required to prove only that she “could be convicted” under current law. That
is, the People must prove a counterfactual—that it’s possible a jury would convict her—
which they can do by establishing there’s sufficient evidence for a jury instructed under
current law to conclude she is guilty of second degree murder. In other words, if there is
substantial evidence to support a murder conviction under a still-valid theory, Clements
could still be convicted of murder under the amended law, and thus she is ineligible for
relief.
While we recognize the appeal of the interpretation, we think it puts too much
emphasis on the mood of a verb in subdivision (a). That provision concerns what it takes
to make a prima facie showing, not establishing ultimate entitlement to relief. It’s natural
to use a verb mood focusing on whether it’s possible the petitioner wouldn’t have been
convicted of murder if tried under the amended law at the stage where the court is
deciding whether to hold a hearing on resentencing. It doesn’t follow that, at that ultimate
hearing, the People can show the petitioner shouldn’t get relief by arguing the conviction
was simply possible. That interpretation extends the hypothetical nature of the inquiry
from the prima facie stage to the hearing stage. As our sister court has explained, “Use of
a conditional verb in section 1170.95, subdivision (a)(3), is a normal grammatical
construct to express the hypothetical situation an inmate . . . faces when filing [a]
petition—what would happen today if he or she were tried under the new provisions of
the Penal Code? [Citation.] But once a prima facie case of eligibility has been made and
an order to show cause issued, the prosecution’s burden is neither conditional nor
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hypothetical. Under subdivision (d)(3) the prosecutor must prove ‘the petitioner is
ineligible for resentencing,’ not that he or she might be or could be ineligible.”
(Rodriguez, supra, 58 Cal.App.5th at p. 241.)
When interpreting the statute, we must attend to the Legislatures’ clear purpose in
subdivision (d) of requiring a fact finding at the ultimate hearing on the merits.
Subdivision (d) specifies the purpose of the hearing is “to determine whether the
petitioner is entitled to relief” and places “the burden of proof . . . on the prosecution to
prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” This
plain language shows the People are required to establish the defendant is guilty under
current law as a matter of fact and beyond a reasonable doubt. (See Rodriguez, supra, 58
Cal.App.5th at p. 241 [“[The] legislative goal is best effectuated by resentencing
individuals convicted of . . . second degree murder under the natural and probable
consequences doctrine . . . whether from the record of conviction alone or with new and
additional evidence introduced at the subdivision (d)(3) hearing, fails to establish beyond
a reasonable doubt they, in fact, acted during the crime with the now-required mental
state”].) Applied to this case, the judge was required to determine whether the People
satisfied their burden of proving beyond a reasonable doubt that Clements committed
implied malice murder based on the evidence contained in the record of conviction.
The People’s interpretation of the statute also has the demerit of leaving
completely obscure what the trial judge would be asked to do in a case where there is a
trial transcript and new live testimony. The statute is explicit that either party “may rely
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on the record of conviction or offer new or additional evidence to meet their respective
burdens.” (§ 1170.95, subd. (d)(3).) Under our interpretation, the judge simply reviews
the record, hears the testimony, and decides as a factual matter whether the petitioner
committed murder under the current law. (Rodriguez, supra, 58 Cal.App.5th at p. 242
[“How is the superior court to evaluate that additional evidence if not as an independent
factfinder? It would be pointless for the court’s role in this situation simply to be deciding
whether a jury could credit a new witness’s testimony and thus could conclude the
petitioner had acted with express malice”].)
It’s true that it’s unusual to ask the trial judge to sit as the fact finder and (in some
cases) make factual determinations on a cold record, as the judge did in this case. While
that is not the ideal position for a fact finder, it is possible to review a trial transcript and
reach an opinion about what actually happened. The Legislature landed on that
compromise as a way of extending the ameliorative benefits of its redefinition of murder
to people previously convicted under prior law, which they judged to be too harsh. They
could have directed that qualifying offenders receive a new trial by a new jury on the
critical factual questions. But that was impractical for many reasons; the expense would
have been enormous and the chances of obtaining live testimony from witnesses who
remembered the events from years or decades earlier is small. The Legislature also could
have simply refused to make the benefits of the new law available to people already
validly convicted under the old law. They chose the middle course of requiring trial
judges to decide the critical factual questions based—at least in some cases—on a cold
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record. While the Legislature’s compromise is not perfect, it is adequate. And if either
party believes it’s important to put on live testimony to allow the trial judge to make
credibility determinations based on cues other than consistency and plausibility, the
statute expressly allows them that opportunity.
After we issued our opinion, the Legislature confirmed our view by amending
section 1170.95. The amended provision now specifies that “[a] finding that there is
substantial evidence to support a conviction for murder . . . is insufficient to prove,
beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95,
subd. (d)(3), as amended by Stats. 2021, ch. 551.)
We therefore conclude the trial judge erred to the extent it based its conclusion
that Clements was not eligible for resentencing on the ground that substantial evidence in
the record of conviction supported finding her guilty of second degree murder under an
implied malice theory. That conclusion doesn’t end our inquiry, however, because the
trial judge held Clements isn’t eligible for resentencing on the alternative ground that she
was in fact guilty of second degree murder.
D. Sufficiency of the Evidence to Support the Trial Judge’s Factual Finding
Recognizing we might interpret the statute to require it to sit as the trier-of-fact,
the trial judge added a belt to its suspenders and found “the People have proven the
defendant guilty of one count of murder arising out of the death of [Clements’ brother], in
the second degree.” Clements argues this conclusion was erroneous because the record
shows a reasonable doubt as to her guilt on the second degree murder charge under an
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implied malice theory.
We review the trial judge’s fact finding for substantial evidence. (People v.
Gregerson (2011) 202 Cal.App.4th 306, 320.) We ‘“examine the entire record in the light
most favorable to the judgment to determine whether it contains substantial evidence—
that is, evidence that is reasonable, credible, and of solid value that would support a
rational trier of fact in finding [the defendant guilty] beyond a reasonable doubt.”’
(People v. San Nicolas (2004) 34 Cal.4th 614, 657-658.) Our job on review is different
from the trial judge’s job in deciding the petition. While the trial judge must review all
the relevant evidence, evaluate and resolve contradictions, and make determinations as to
credibility, all under the reasonable doubt standard, our job is to determine whether there
is any substantial evidence, contradicted or uncontradicted, to support a rational fact
finder’s findings beyond a reasonable doubt. (Ibid.)
Of course, in a section 1170.95 petition, the trial judge isn’t charged with holding
a whole new trial on all the elements of murder. Instead, the parties will focus on
evidence made relevant by the amendments to the substantive definition of murder.
Senate Bill No. 1437 amended section 188 to require the prosecution to prove that all
principals to a murder acted with malice aforethought. (§ 188, subd. (a)(3).) Though this
change abolished the natural and probable consequences doctrine, it maintained the
viability of murder convictions based on implied malice, and the definition of implied
malice remains unchanged. (§ 188.) In this case, the elimination of the natural and
probable consequences doctrine raises the question whether the evidence supports a
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second degree murder verdict under an implied malice theory. The trial judge found that
the evidence does support that verdict, and we conclude there is sufficient evidence in the
record of conviction, including Clements’ own testimony, to support the finding that she
acted with conscious disregard for her brother’s life, and thus harbored implied malice.
Second degree murder is “the unlawful killing of a human being with malice
aforethought but without the additional elements, such as willfulness, premeditation, and
deliberation, that would support a conviction of first degree murder.” (People v. Knoller
(2007) 41 Cal.4th 139, 151.) Malice may be either express, i.e. when a defendant
manifests an intention to kill, or implied. (People v. Blakeley (2000) 23 Cal.4th 82, 87.)
‘“Malice is implied when the killing is proximately caused by ‘an act, the natural
consequences of which are dangerous to life, which act was deliberately performed by a
person who knows that his conduct endangers the life of another and who acts with
conscious disregard for life.’”’ (People v. Cravens (2012) 53 Cal.4th 500, 507.) Thus,
implied malice includes an objective component—an act that is dangerous to life—and a
subjective component—the defendant’s awareness of and disregard for the danger.
(People v. Knoller, at pp. 153-154, 157.)
For implied malice in this case, the critical question is whether substantial
evidence in the record of conviction shows Clements’ act of requesting and coordinating
the assault on her brother was deliberate and performed with knowledge of the danger to,
and conscious disregard for, his life. Though the trial judge instructed the jury on this
element of implied malice, they weren’t required to find she acted in this way to convict
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her under a natural and probable consequences theory. So, the trial judge’s eligibility
determination hinges on the third element.
Clements’ own trial testimony provided substantial evidence that she acted
deliberately and with a conscious disregard for life. She was aware recruiting Earl and
Michael to assault Jim was going to endanger Jim’s life, and she acted anyway, knowing
the risk. First, it was basically uncontested that she solicited Earl to assault Jim. She told
Earl about the problems she was having with Jim on their June 1989 call and asked him
to come to California because she thought he could “teach him a lesson,” and “put his
foot down.” She acknowledged she asked Earl to “straighten [Jim] out” by “disciplining”
him and that Earl said he was going to kill Jim. She also acknowledged he said he had
wanted to kill Jim in Texas, but he didn’t think he could get away with it. The best she
could say for herself is she responded, “Well, I don’t want you to kill him. Could you just
beat him up?” But Earl told her “he was going to take care of it his way.”
Second, there was substantial evidence she understood the risk of her solicitation.
She was familiar with Earl’s violent temperament and proclivity for violence, including
deadly violence. She had seen Earl attack an ex-boyfriend twice unprovoked. In June
1989, about a month before the murder, Earl called Clements at work and told her he was
in trouble in Oklahoma because he had assaulted a man so badly he was in a coma and at
risk of dying. More, Clements told police Earl’s brother had warned her about asking Earl
to discipline Jim, saying “You better watch out. This isn’t the first time Earl’s done this,
you know.” The police asked whether he meant this wasn’t the first time Earl had killed
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someone, and Clements responded yes. She was also aware Earl was angry with Jim and
blamed him for their breakup. At trial, Clements admitted she knew the tension between
the two was mounting.
After the June phone call, Clements and Jim got into a fight, during which she said
to him, “I’ll see you dead, and my friends will do it.” Afterward, Clements spoke to Earl
on the phone a second time. She told him about the fight and he “cuss[ed] Jim really
bad,” and said he was “going to get him.” Earl said, “That son [of] a bitch just crossed
me. [¶] . . . [¶] And he shouldn’t of crossed me and he shouldn’t hurt you because I told
him not to ever hurt you.” Earl said he had warned Jim that if Jim ever crossed him or
Clements, “he was going to have to pay for it.”
Once Earl arrived in California, it became clear Earl intended to kill Jim. He again
told Clements as much. He kept his car hidden from view, and Clements explained it was
because he didn’t want anyone to know he was there because he was going to kill Jim.
Later, Clements overheard Earl and Michael discussing how angry they were at Jim, and
she heard Earl ask Michael for help killing Jim. Earl asked Michael, “are you going to
help me get rid of Jim?” Michael responded, “are you really serious about this?” Earl
replied, “I’m serious about this.” Both Earl’s statements and his actions therefore
communicated to Clements that he was serious about his threat to kill Jim.
On the day of the murder, Earl and Michael were gone for several hours, and when
they returned, they told Clements they had been digging a trench in the desert. That
evening, as Earl was leaving, Clements said she told Earl not to kill Jim. As she
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explained it during her testimony, “I think it was that day that I told him [not to kill Jim].
Because when he said he was going to go get him I was thinking about what he told me
on the phone and stuff, but I didn’t – I just told him not to do that. I just told him not to
kill him because I didn’t think he would.” This comment shows Clements continued
facilitating the assault despite being aware of the risk Jim would be killed. Indeed, while
Earl and Michael were out committing the murder, Clements said she told her mother she
was worried they were going to kill Jim. Her mother testified too, and said Clements
actually told her they had gone to kill Jim, not that she was worried that was what was
happening. Under either version, Clements was consciously aware that Jim’s life was in
danger due to the assault she solicited.
We conclude this evidence—including Clements’ own testimony trying to
minimize her culpability—provides a more than adequate basis for the trial judge’s
finding beyond a reasonable doubt that she was aware recruiting Earl to commit an
aggravated assault of Jim endangered Jim’s life and that she acted in conscious disregard
of that risk. On that basis, we affirm the order denying Clements’ section 1170.95
petition for resentencing.
Clements argues the recent amendment of section 1170.95 raises new questions
about this conclusion. She is correct that Senate Bill No. 775 expanded the scope of
section 1170.95 from petitioners “convicted of felony murder or murder under the natural
and probable consequences doctrine” to petitioners convicted under any “other theory
under which malice is imputed to a person based solely on that person’s participation in a
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crime.” (§ 1170.95, subd. (a) as amended by Stats. 2021, ch. 551, § 2.) However, we
disagree with Clements’ attempt to present herself as a person convicted of implied
malice based solely on her participation in a crime. On the contrary, Clements was an
active participant in the solicitation and planning of the assault and the evidence,
including her own testimony, establishes she acted with conscious disregard for human
life.
The recent case of People v. Langi illustrates the circumstances when the new
language applies. In that case, the defendant was part of a group who accosted the victim
with the purpose of robbing him. The confrontation ended in a fist fight, and the victim
was killed by a blow to the head suffered after he was punched by one member of the
group. (People v. Langi, supra, 73 Cal.App.5th at p. 975.) Langi argued the jury could
have found him “guilty of murder if it found that (1) the killing resulted from the actual
killer’s intentional act; (2) appellant aided and abetted that intentional act; and (3) the
killer ‘deliberately performed [the act] with knowledge of the danger to, and with
conscious disregard for, human life’—whether or not appellant knew of or consciously
disregarded the danger to human life.” (Id. at p. 981.) He argued “[t]he instructions thus
permitted the jury to impute malice to appellant based solely on his participation in a
crime, without having to find that he personally acted with malice.” (Ibid.) In other
words, he argued the aiding and abetting instructions allowed the jury to convict him
under a vicarious felony murder theory no longer permitted under the amended definition
of murder. The Court of Appeal agreed and remanded to the trial court for a hearing on
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whether Langi could be convicted under the amended definition of murder. (Id. at
p. 984.)
This case is different. As we’ve explained, there was significant evidence that
Clements personally acted with knowledge of the danger to, and conscious disregard for,
the life of her brother.
III
DISPOSITION
We affirm the order denying Clements’ section 1170.95 petition.
CERTIFIED FOR PUBLICATION
SLOUGH J.
We concur:
CODRINGTON Acting P. J.
FIELDS J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that an appellate opinion is part of the record of conviction for a section 1170.95 petition and that a trial judge acts as a fact finder at a section 1170.95(d) hearing, applying a deferential standard of review to factual findings.
Issues
Whether an appellate opinion is part of the record of conviction for a section 1170.95 petition.
Whether a trial judge acts as a fact finder at a section 1170.95, subdivision (d) hearing.
Whether independent review or substantial evidence review applies to a trial judge's factual findings in a section 1170.95 proceeding.
Disposition. affirmed
Quotations verified verbatim against the opinion
“We hold an appellate opinion is part of the record of conviction and may be relied on in deciding a section 1170.95 petition on the merits”
“We also hold the trial judge sits as a fact finder at a hearing under section 1170.95, subdivision (d)”
“the question whether Clements acted with reckless indifference to human life is predominantly a factual determination.”