People v. Clements

Filed 2/4/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073965
v. (Super.Ct.No. SICRF1989169810)
JODY ANN CLEMENTS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Inyo County. Brian Lamb, Judge. Affirmed.
Reed Webb, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Meredith S.
White, Deputy Attorneys General, for Plaintiff and Respondent.
1
In 1989, after appellant Jody Ann Clements solicited her ex-husband and her
boyfriend to assault her 16-year-old brother, the two killed the brother by stabbing him
and bludgeoning him with a rock and then buried his body in the desert. A jury convicted
Clements of second degree murder in 1990 after the trial judge instructed them on both
natural and probable consequences and implied malice theories of murder.
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(SB 1437), which, among other things, amended the definition of murder to eliminate the
natural and probable consequences doctrine. (Pen. Code, §§ 188, subd. (a)(3); 189, subd.
(a), unlabeled statutory citations refer to this code.) The Legislature also added a new
provision to the Penal Code, which establishes a procedure for vacating murder
convictions predating the amendment if they could not be sustained under the amended
definition of murder. (§ 1170.95; Stats. 2018, ch. 1015, § 4.)
Clements filed a petition arguing she was convicted of second degree murder
under a natural and probable consequences theory and could not be convicted under the
current law. After a hearing, at which the parties agreed to limit the evidence to the
record of conviction, the trial judge looked to our decision in Clements’ original appeal
and other portions of the record of conviction and made two alternative determinations
that: (1) substantial evidence supported the determination that Clements could have been
convicted of second degree murder under an implied malice theory and (2) Clements in
fact committed implied malice second degree murder beyond a reasonable doubt. The
trial judge therefore denied her petition on each of these independent, adequate grounds.
2
Clements argues the trial judge erred by considering this court’s opinion in her
original appeal, by misconstruing the nature of the eligibility determination it was
required to make under the new statute, and by denying her petition in the absence of
substantial evidence supporting a finding of implied malice.
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, so the trial judge did not err in
doing so in this case. We also hold the trial judge sits as a fact finder at a hearing under
section 1170.95, subdivision (d) and that substantial evidence supports the trial judge’s
finding beyond a reasonable doubt that Clements committed implied malice second
degree murder. The trial judge correctly denied Clements’ petition for resentencing for
that reason.
I
FACTS
A. The Facts as Set Out in the Opinion from Clements’ First Appeal
The facts in this part of the opinion come directly from the unpublished opinion
we issued in 1994, affirming Clements’ conviction in case No. E008001.
In January 1988, Clements and her ex-husband located the victim at a juvenile
facility in New Mexico. Clements and the victim, who were brother and sister, had been
separated during childhood. The three traveled some and eventually settled in Texas,
during which time sexual relations took place between Clements and the victim, and
between all three at once. This caused fighting between Clements and her ex-husband,
3
and Clements returned to California with the victim in late April or early May.
The relationship between Clements and the victim soured in California. After the
murder, Clements admitted she had been envious because the minor victim received
money from the social security system due to the death of their father and she, because of
her majority, did not. Although Clements was, by May before the murder, having a
sexual relationship with her new boyfriend, and was not interested in continuing to have
sex with the victim, the latter did not share her feelings and resented her relationship with
her boyfriend. According to Clements, the victim was taking drugs (although she also
admitted supplying them to him), drinking, hot-rodding his car, and being abusive to her
and her mother, all of which additionally upset her. Clements and the victim often
argued, and two fights in particular erupted into physical confrontations, during one of
which Clements said to the victim, “I’ll see you dead, you son of a bitch, and my friends
will do it.” At some point, Clements told a relative that she never hated anyone in her life
as much as she hated the victim and she feared she would kill him if they got into another
fight.
Clements’ boyfriend testified at trial that Clements told him during this time that
she wanted the victim dead. He stated that in late June, she called her ex-husband in
Texas, reported to him her extreme unhappiness with the victim and asked him to come
out and kill the victim. According to the boyfriend, Clements also asked him to help in
the killing, after her ex-husband arrived in California and made clear his intention to
proceed with the murder, and they discussed together the various ways this could be
4
accomplished. The boyfriend stated that on July 5, after Clements’ ex-husband had twice
informed her that he and the boyfriend were going to kill the victim that night, the two
men took the victim to a remote area of the desert, stabbed the victim and bludgeoned
him with a rock, and buried him in a grave they had dug earlier in the day. Upon their
return to Clements’ home, the boyfriend testified, the ex-husband told her what they had
done.
Clements’ mother and her boyfriend’s mother testified that Clements lied to the
latter twice that night about the boyfriend’s whereabouts. Clements’ mother also testified
that after the men left that night to get the victim, Clements told her that they had gone to
kill the victim. Clements’ mother confirmed the boyfriend’s testimony that Clements was
told about the killing when the men returned to the house. Clements, herself, admitted at
trial that she tried to wipe the victim’s blood off her ex-husband’s shoes and body, and
she went with him twice in the days following the killing to destroy evidence. She also
admitted that she and her mother took some of the victim’s possessions when the men
returned from the murder scene with them.
A relative testified that in the weeks following the killing, Clements and her ex-
husband attempted to obtain the victim’s social security checks, which were still coming
because the body had not yet been discovered.
Months later, Clements admitted to her boyfriend’s then new girlfriend that she
and the boyfriend had killed the victim because she did not like him.
Clements testified in her own behalf and admitted complaining to her ex-husband
5
about the victim, but she claimed she asked him only to beat the victim up and never
intended or anticipated that the victim would be substantially harmed. She denied
engaging in conversations about the victim’s demise before the fateful day. She also
denied knowing that her ex-husband and boyfriend had set out that day to kill the victim
or even knowing that they had accomplished their task until the following day.
B. Additional Trial Evidence Concerning Malice
Though not recounted in the original appellate decision, the trial transcript
contains testimony relevant to whether Clements had the intent necessary to sustain a
conviction for second degree murder under an implied malice theory. Specifically, the
testimony recounted in part B is relevant to whether Clements was aware soliciting her
ex-husband (Earl) and her boyfriend (Michael) to assault her teenage brother (Jim) would
endanger the brother’s life, and whether she acted in conscious disregard of that risk.
Clements admitted she had witnessed Earl’s violent temperament firsthand on
several occasions. She had seen him attack an ex-boyfriend unprovoked at least twice.
She had also seen him hit her brother Jim. She recounted one occasion when the three of
them were driving and Jim called her a bitch. Earl turned around and hit Jim, and the two
started fighting. She pulled the car over, and ultimately Jim called the police. On another
occasion she recounted, Clements stepped in between the two and tried to push Earl out
of the house “because he was ranting and raving and tore the curtains down and he was –
he was being awful.”
Clements also admitted she was aware Earl was angry with Jim and had threatened
6
to harm him. While they still lived in Texas, Earl and Clements had stopped seeing each
other in part because of her relationship with Jim. She said Earl was angry with Jim over
the breakup and had told her he was “going to get him, you know, for what he had done
and stuff, and he says—okay. Earl felt like Jim had taken me away from him.” At trial,
Clements admitted she knew the tension between the two was mounting. She said Earl
told her she had to choose between the two men, and she chose Jim.
After they moved to California, Clements and Jim started arguing and having
problems. 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. He said the
man “was in the hospital in a coma, that that guy was just hurt real bad and they had
pretty good charges on him.” Earl told her he fought the man because both were involved
with the same woman and “they didn’t know if that guy was going to live or not.” It was
during that conversation that Clements first told Earl about the problems she was having
with Jim. She said she thought he had “gotten out of hand,” and she could no longer
control his behavior. She asked Earl to come to California because she thought Earl could
“straighten him out.”
Earl told Clements he was already mad at Jim and he wanted to get back at him for
the things he had done to them in Texas. He told her he was going to kill Jim and said he
had wanted to kill him when they were in Texas, but he couldn’t find a place to bury the
body and he didn’t think he could get away with it.1 According to Clements, she
1 The trial judge admitted this testimony for the purpose of proving Clements’
state of mind.
7
responded, “Well I don’t want you to kill him. Could you just beat him up?” Earl said “he
was going to take care of it his way.”
During her interview with detectives, Clements described a conversation she had
with Earl’s younger brother when she related her problems with Jim. “Well, Jim’s not
even going to be able to leave California and stuff like that. He’s going to be stuck in the
desert forever and suffer like this, you know, and I was kind of wondering if Earl had told
him.” She said he warned, “[Y]ou better watch out. This isn’t the first time [he’s] done
this, you know.” The detective asked Clements whether the brother meant this wasn’t the
first time Earl had killed someone. She said, “And – yeah. And I was a little worried
about it, but not really because I didn’t think he would ever hurt me, you know, but I
don’t know.”
After the first phone call with Earl, Clements and Jim got into a physical fight, and
she told him, “I’ll see you dead and my friends will do it.” Clements and Earl then spoke
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.” Referring to Jim, 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.”
Once Earl arrived in California, he kept his car hidden from view. Clements
explained he did this “because he didn’t want anyone to know he was there because he
was going to kill Jim.” Clements said she asked Earl why he thought he had to kill her
brother and again asked him to “straighten [Jim] up” by beating him up. Later, she
8
overheard Earl and Michael discussing Jim and how angry at him they were. She heard
Earl ask, “[A]re you going to help me get rid of Jim?” Michael responded, “are you really
serious about this?” Earl replied, “I’m serious about this.”
On the day of the murder, Earl and Michael were gone for several hours. When
they returned, they told Clements they had been digging a trench in the desert. That
evening, as Earl was leaving to get Jim, Clements said she told him not to kill her brother.
As she explained during her testimony, “I think it was that day I told him. 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.”
While the two were out committing the murder, Clements told her mother she was
worried they were going to kill Jim and admitted she was worried about him. Her mother
testified Clements told her outright that Earl had gone to kill her brother, not that she was
worried that would happen.
C. Jury Instructions and Conviction
In 1989, Clements was charged generally with murder for her involvement in the
killing. The trial judge instructed the jury on several theories of murder liability. First, the
judge instructed the jury on second degree implied malice murder, telling them that crime
is the unlawful killing of a human being when: “1) the killing resulted from an intentional
act, 2) the natural consequences of the act are dangerous to human life, and 3) the act was
deliberately performed with knowledge of the danger to, and conscious disregard for,
9
human life.” The judge also instructed the jury Clements was guilty of murder if she
caused the victim’s death, “as a natural and probable consequence of a request to commit
a felony inherently dangerous to human life,” and that the felony could include
aggravated assault.
The jury acquitted Clements of first degree murder but convicted her of second
degree murder. Clements appealed on grounds different from the issues now on appeal
and this court affirmed her conviction.
D. Clements’ 1170.95 Petition
In January 2019, Clements filed a petition under newly enacted Penal Code
section 1170.95, which, among other things, allows people convicted of second degree
murder under the natural and probable consequences doctrine to seek to vacate their
convictions and seek resentencing for the underlying offense. The trial judge appointed
counsel for Clements and ordered the parties to submit briefing on her eligibility for
relief. After briefing, the parties and the trial judge agreed Clements had made a prima
facie showing of eligibility, and the judge ordered an evidentiary hearing.
The trial judge held the hearing on July 25, 2019. Though section 1170.95
specifically allows the introduction of new or additional evidence, the parties agreed they
would not introduce such evidence. With Clements’ agreement, the People submitted the
record of conviction, including trial transcripts, to the court. No one testified. The parties
disagreed whether the trial judge should rely on the statement of facts from our prior
opinion, recounted in part I.A. above. The trial judge then took the case under
10
submission.
On September 30, 2019, the trial judge denied Clements’ petition in a written
opinion. He concluded the prior opinion of this court is part of the record of conviction
and it was proper for him to consider the factual history set out in the opinion to the
extent it was relevant. The judge noted the parties agreed Clements satisfies the first two
conditions on eligibility under section 1170.95 and that the only issue is whether “[t]he
petitioner could not be convicted of first or second degree murder because of the changes
to Section 188 or 189” effected by passage of SB 1437.
The trial judge determined, “based on the record of conviction properly before the
court, [that] the People have met their burden of establishing the fact that defendant is
ineligible for resentencing because she ‘could . . . be’ convicted of second degree murder
for the death of [her brother Jim], notwithstanding changes to Penal Code Section 188 or
189 made effective January 1, 2019.” The trial judge recognized a vagueness in section
1170.95 about the nature of the judge’s role in making that determination and for that
reason issued alternative holdings.
First, the trial judge held the People had established the evidence in the record
was, as a legal matter, sufficient to uphold a conviction for second degree murder under a
still-valid implied malice theory. “In the court’s view, the newly-enacted statute does not
entitle the defendant to a plenary re-trial on the charge of second degree murder of which
she stands convicted. Rather, the issue for the court for decision, when an order to show
cause is issued and a hearing is held, is whether the People can prove, beyond a
11
reasonable doubt, that the petitioner ‘could . . . be’ convicted of second degree murder
under the current law of murder. That presents to the court a legal question, that is, the
issue of the legal sufficiency of the evidence before the court to sustain the defendant’s
conviction for one count of murder in the second degree, under the current law of murder,
as set forth in the Penal Code sections 188 and 189, as recently amended.” The court held
the record of conviction “conclusively establishes an ample and legal sufficient basis to
sustain, under the law of murder as currently formulated, the prior court’s verdict, finding
the defendant guilty of one count of murder in the second degree.”
Second, the judge, sitting as a fact finder, determined the evidence in the record of
conviction proved beyond a reasonable doubt that Clements was guilty of second degree
murder, notwithstanding the change to the law. “Alternatively, the statute may be read as
allowing the defendant what amounts to a retrial on the issue of murder, where the court
sits as the trier-of-fact, and the evidence is the record of conviction in the case, as
supplemented by any new or additional evidence adduced at the hearing on the petition.
Under this theory, the court puts itself in the place of the jury, determining whether the
People have proven the defendant is guilty of murder in the second degree, based on the
evidence before it. Applying this theory, the court, sitting as the trier-of-fact, based on the
evidence before it, and fully advised of the requirements of the law of murder as currently
formulated, hereby finds that 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 filed a timely notice of appeal.
12
II
ANALYSIS
Clements challenges the sufficiency of the evidence that she acted with implied
malice required to establish second degree murder. Along the way, she argues the trial
judge erred by considering the facts as set out in our opinion in her direct appeal and by
conducting a substantial evidence review of the trial record. She argues section 1170.95
requires the judge to make an independent factual finding whether Clements would have
been convicted of second degree murder even if the jury hadn’t been instructed on the
natural and probable consequences doctrine. She also argues the record shows reasonable
doubt as to whether she acted with implied malice. That means, she says, she is entitled
to be resentenced under section 1170.95.
A. Senate Bill 1437
“Generally, malice is an essential element of the crime of murder. (§ 187.) Malice
may be either express or implied. It is express ‘when there is manifested a deliberate
intention to unlawfully take away the life of a fellow creature.’ (§ 188, subd. (a)(1).) It is
implied ‘when no considerable provocation appears, or when the circumstances attending
the killing show an abandoned and malignant heart.’ (Id., subd. (a)(2).) Implied malice
has “‘both a physical and a mental component. The physical component is satisfied by
the performance of ‘an act, the natural consequences of which are dangerous to life.’ . . .
The mental component is the requirement that the defendant ‘knows that his conduct
endangers the life of another and . . . acts with a conscious disregard for life.”’” (People
13
v. Johns (2020) 50 Cal.App.5th 46, 57.)
Before S.B. 1437, the natural and probable consequences doctrine was an
exception to the actual malice requirement. The doctrine made “a person who aids and
abets a confederate in the commission of a criminal act . . . liable not only for that crime
(the target crime), but also for any other offense (nontarget crime) [including murder]
committed by the confederate as a ‘natural and probable consequence’ of the crime
originally aided and abetted.” (People v. Prettyman (1996) 14 Cal.4th 248, 254, 262-
263.) Because a nontarget murder “is unintended, the mens rea of the aider and abettor
with respect to that offense is irrelevant and culpability is imposed simply because a
reasonable person could have foreseen the commission of the [murder].” (People v. Chiu
(2014) 59 Cal.4th 155, 164.) For that reason, our Supreme Court held “punishment for
second degree murder,” rather than first degree murder, “is commensurate with a
defendant’s culpability for aiding and abetting a target crime that would naturally,
probably, and foreseeably result in a murder under the natural and probable consequences
doctrine.” (Id. at p. 166.)
Effective January 1, 2019, the Legislature changed the substantive definition of
murder by enacting SB 1437. The new law was designed “to ensure that murder liability
is not imposed on a person who is not the actual killer, did not act with the intent to kill,
or was not a major participant in the underlying felony who acted with reckless
indifference to human life.” (SB 1437, § 1.) Relevant to this case, SB 1437 eliminated the
exception that had allowed a second degree murder conviction under the natural and
14
probable consequences doctrine. As amended, Penal Code section 188 directs malice may
not “be imputed to a person based solely on his or her participation in a crime.” (Pen.
Code, § 188, subd. (a)(3).) Instead, “to be convicted of murder, a principal in a crime
shall act with malice.” (Ibid.)
The Legislature also added section 1170.95 to the Penal Code, which creates a
procedure for offenders previously convicted of murder under a natural and probable
consequences theory to obtain the benefits of these changes retrospectively. Convicts
may petition for relief in the court where they were sentenced if (1) the complaint or
information filed against them “allowed the prosecution to proceed . . . under the natural
and probable consequences doctrine,” (2) they were “convicted of first degree or second
degree murder following a trial or accepted a plea offer in lieu of a trial at which the
petitioner could be convicted for first degree or second degree murder”, and (3) they
“could not be convicted of first or second degree murder because of changes to Section
188 or 189.” (§ 1170.95, subd. (a).) If a petitioner makes a prima facie showing that
they’re entitled to relief, the judge must issue an order to show cause and hold “a hearing
to determine whether to vacate the murder conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same manner as if the petitioner
had not . . . previously been sentenced.” (§ 1170.95, subds. (c), (d)(1).)
At the hearing “to determine whether the petitioner is entitled to relief, the burden
shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is
ineligible for resentencing.” (§ 1170.95, subd. (d)(3).) Both parties “may rely on the
15
record of conviction or offer new or additional evidence to meet their respective
burdens.” (Ibid.) As we’ve seen, in this case, both parties chose to rely on the record of
conviction. “If the prosecution fails to sustain its burden of proof, the prior conviction,
and any allegations and enhancements attached to the conviction, shall be vacated and the
petitioner shall be resentenced on the remaining charges.” (Ibid.) If the trial judge
determines the “petitioner is entitled to relief, [and] murder was charged generically, and
the target offense was not charged, the petitioner’s conviction shall be redesignated as the
target offense or underlying felony for resentencing purposes.” (Id., subd. (e).)
Clements’ appeal implicates the question whether the People sustained their
burden of proving beyond a reasonable doubt that she was not entitled to relief because
the record of conviction shows she acted with implied malice.
B. Consideration of the Appellate Opinion on Direct Review
Clements argues the trial judge erred when he ruled this court’s opinion in her
direct appeal was part of the record of conviction and could be considered in determining
whether she was entitled to relief.
In People v. Woodell (1998) 17 Cal.4th 448, our Supreme Court held an appellate
opinion is generally “part of the record of conviction that the trier of fact may consider in
determining whether a conviction qualifies under the sentencing scheme at issue.” (Id. at
p. 457.) It’s true that when introduced at trial to prove the defendant’s conduct, the
contents of an appellate court opinion are subject to the ordinary rules regarding the
admission of hearsay. (Id. at pp. 457-458; see also Lockley v. Law Office of Cantrell,
16
Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.) However, in posttrial
proceedings, statements from prior appellate opinions are admissible as reliable hearsay
even if they would not be admissible at trial. (See People v. Guilford (2014) 228
Cal.App.4th 651, 660 [Proposition 36 proceedings].)
Section 1170.95, subdivision (d)(3) explicitly allows “[t]he prosecutor and the
petitioner [to] rely on the record of conviction or offer new or additional evidence to meet
their respective burdens” at the evidentiary hearing. We presume the Legislature was
aware of the precedent holding an appellate decision is part of the record of conviction
admissible in posttrial proceedings when they enacted section 1170.95. (In re W.B.
(2012) 55 Cal.4th 30, 57.) We therefore conclude the Legislature intended to allow trial
judges to consider prior appellate opinions in deciding after a hearing whether 1170.95
petitioners are eligible for relief.
This court has already held a trial judge may consider a prior appellate decision at
the earlier stage of determining whether a petitioner has made a prima facie showing
entitling them to a hearing on the merits. (People v. Law (2020) 48 Cal.App.5th 811, 820-
821; see also People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, fn. 7; People v.
Verdugo (2020) 44 Cal.App.5th 320.) If a prior appellate opinion is part of the record of
conviction which the trial judge may consider at a proceeding where the Legislature
didn’t expressly allow the parties to rely on it, there’s no basis for excluding the opinion
at a hearing where the Legislature expressly did allow such reliance.
It’s a separate question “[w]hether and to what extent an opinion is probative in a
17
specific case.” (People v. Woodell, supra, 17 Cal.4th at p. 457.) It’s easy to conceive of a
case where the issues on appeal implicate different facts than a later resentencing petition.
For example, a defendant convicted of natural and probable consequences murder with a
gang enhancement may have challenged only the gang enhancement on direct appeal
because the evidence of the murder was, under prior law, very strong. The original
appellate decision in such a case may focus on facts not relevant to a later petition
challenging the murder conviction. Here, the trial judge properly noted that possibility
and limited its consideration to only the “relevant and admissible evidence in the record
of conviction.”
In any event, Clements has not identified any portion of our prior opinion that was
not relevant or admissible but which the trial judge relied upon, so she’s provided no
basis for overturning the trial judge’s ruling on the ground that it reached its ultimate
conclusion that she was not entitled to relief based on irrelevant or inadmissible
information in our prior opinion. (Del Real v. City of Riverside (2002) 95 Cal.App.4th
761, 766 [“It is the appellant’s burden to demonstrate the existence of reversible error”].)
C. The Trial Judge’s Role as Fact Finder
As we noted above, the trial judge first considered the legal issue of whether the
record of conviction contained substantial evidence to support the murder conviction on a
theory other than the natural and probable consequence doctrine and concluded it did
provide a sufficient basis to sustain the verdict. Clements argues it was error to use a
substantial evidence standard to assess her eligibility for relief. This is a question of
18
statutory construction which we review de novo. (People v. Gonzalez (2017) 2 Cal.5th
1138, 1141.) It’s also a question of first impression in our appellate district and a matter
of disagreement in the other district Courts of Appeal. (People v. Rodriguez (2020) 58
Cal.App.5th 227 (Rodriguez) [error to use substantial evidence standard at a section
1170.95, subd. (d)(3) hearing]; People v. Lopez (2020) 56 Cal.App.5th 936 [same];
People v. Duke (2020) 55 Cal.App.5th 113, review granted Jan. 13, 2021, S265309
[holding substantial evidence standard applies at a section 1170.95, subd. (d)(3)
hearing].)
Under section 1170.95, subdivision (a), defendants convicted under a natural and
probable consequences theory may file a petition for resentencing if they were charged in
a way that allowed the prosecution to proceed under the natural and probable
consequences doctrine, were convicted or pled guilty to first degree or second degree
murder, and “could not be convicted of first or second degree murder because of changes
to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(1)-(a)(3).)
Here, it’s established that Clements was charged with murder generally, convicted of
second degree murder, and her jury was instructed on a natural and probable
consequences theory. So, Clements made a prima facie showing of eligibility under
section 1170.95, subdivision (a), and the trial judge properly ordered a hearing to
determine whether she is entitled to relief under section 1170.95, subdivision (d).
Once the petitioner has made a prima facie showing for relief and the court issues
an order to show cause, the trial judge must “hold a hearing to determine whether to
19
vacate the murder conviction and to recall the sentence and resentence the petitioner on
any remaining counts in the same manner as if the petitioner had not been previously
been sentenced.”2 (§ 1170.95, subd. (d)(1).) The parties may waive the hearing if they
agree the petitioner should be resentenced under the new law. (§ 1170.95, subd. (d)(2).) If
the People don’t agree to resentencing, the petitioner is entitled to a “hearing to determine
whether the petitioner is entitled to relief.” (§ 1170.95, subd. (d)(3).)
At that point, the statute shifts the burden to the People. The Legislature specified
“the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that
the petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3).) To sustain their
burden, the People may rely on the record of conviction “or offer new or additional
evidence.” (Ibid.) The judge must determine whether the People sustained their burden of
proof, and if they have not done so it directs “the prior conviction, and any allegations
and enhancements attached to the conviction, shall be vacated and the petitioner shall be
resentenced on the remaining charges.” (Ibid.)
Thus, taken together, the People had the burden to prove the record of conviction
and any new or additional evidence the parties submit establish beyond a reasonable
doubt that Clements committed murder under the amended law. (§ 1170.95, subd. (d)(3).)
The trial judge concluded this inquiry “presents to the court a legal question, that is, the
issue of the legal sufficiency of the evidence before the court to sustain the defendant’s
2The statute bars the trial judge from imposing a sentence greater than the original
sentence. (§ 1170.95, subd. (d)(1).)
20
conviction for one count of murder in the second degree.”
We disagree with the trial judge’s construction of the statute. The question is
whether the petitioner committed murder under a still-valid theory, and that is a factual
question. The Legislature made this clear by explicitly holding the People to the beyond a
reasonable doubt evidentiary standard and by permitting the parties to submit new or
additional evidence at the hearing on eligibility. (§ 1170.95, subd. (d)(3).) Reading the
statute to require the trial judge to decide only whether substantial evidence supports a
conviction under a still-valid theory would undercut that explicit requirement. The
substantial evidence test asks only “whether substantial evidence supports the conclusion
of the trier of fact, not whether the evidence proves essential facts beyond a reasonable
doubt, or by clear and convincing evidence.” (In re Joseph E. (1981) 124 Cal.App.3d
653, 661, italics added.) By contrast, a fact finder tasked with holding the People to the
beyond a reasonable doubt standard, “must impartially compare and consider all the
evidence that was received throughout the entire trial” and determine whether that “proof
. . . leaves you with an abiding conviction that the charge is true.” (CALCRIM No. 220;
see also Pen. Code, § 1096 [reasonable doubt “is that state of the case, which, after the
entire comparison and consideration of all the evidence, leaves the minds of jurors in that
condition that they cannot say they feel an abiding conviction of the truth of the charge”],
italics added.) We presume the Legislature was aware of this distinction when they
enacted section 1170.95, and therefore conclude the plain text of the statute requires the
trial judge to sit as a fact finder, not as a quasi-appellate court.
21
Indeed, because the substantial evidence inquiry strips the standard of proof from
the reviewing court’s analysis, interpreting the statute as directing trial judges to sit as
quasi-appellate courts would effectively read the standard of proof out of the provision.
The statute is too clear that the People must prove the petitioner is not entitled to relief
beyond a reasonable doubt for that interpretation to be correct. “It is a maxim of statutory
interpretation that courts should give meaning to every word of a statute and should avoid
constructions that would render any word or provision surplusage.” (Tuolumne Jobs &
Small Bus. Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1038.) If the Legislature
had intended trial judges to review the record of conviction and grant relief only in an
absence of substantial evidence to support a still-valid theory, they knew how to enact
that standard and would have done so explicitly. (See Tex-Cal Land Management., Inc. v.
Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 346 [upholding Legislature’s
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
22
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
23
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
24
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
25
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.
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
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
26
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
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
27
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
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
28
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
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
29
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
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
30
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.
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.
31