THE PEOPLE, Plaintiff and Respondent, v. JODY ANN CLEMENTS, Defendant and Appellant.
E073965
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Filed 2/4/21
CERTIFIED FOR PUBLICATION; (Super.Ct.No. SICRF1989169810)
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.
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. (
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.
We hold an appellate opinion is part of the record of conviction and may be relied on in deciding a
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The facts in this part of the opinion come directly from the unpublished opinion we issued in 1994, affirming Clements’ conviction in case No. E008001.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,
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
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
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
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
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
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,
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
The trial judge held the hearing on July 25, 2019. Though
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
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
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
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.
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
A. Senate Bill 1437
“Generally, malice is an essential element of the crime of murder. (
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
The Legislature also added
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.” (
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,
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
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
Under
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
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.” (
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. (
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. (
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
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
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
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
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
Of course, in a
Second degree murder is “the unlawful killing of a human being with malice
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
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
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
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’
III
DISPOSITION
We affirm the order denying Clements’
CERTIFIED FOR PUBLICATION
SLOUGH
J.
We concur:
CODRINGTON
Acting P. J.
FIELDS
J.