Decision of Court of Appeal is part of the Record of Conviction in a 1170.95 Hearing

People v. Clements (Cal. Ct. App., Feb. 4, 2021, No. E073965) 2021 WL 388834, at *1

Summary: In 1989, Jody Ann Clements solicited her ex-husband and her boyfriend to assault her 16-year-old brother who then two killed the brother by stabbing him and bludgeoning him with a rock.  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 amended the definition of murder to eliminate the natural and probable consequences doctrine. (Pen. Code, §§ 188, subd. (a)(3); 189, subd. (a)) The Legislature also added a new provision to the Penal Code, which establishes a procedure for vacating murder convictions 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 the Court of Appeal  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.

Clements argues the trial judge erred by considering the appellate 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.

Holding: 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. The trial judge sits as a fact finder at a hearing under section 1170.95, subdivision (d) and substantial evidence supported 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.

Clements’ 1170.95 Petition

In January 2019, Clements filed a petition under Penal Code section 1170.95, which 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.

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 the Cour of Appeal’s Opinion. The trial judge then took the case under 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.”

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. 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.

Clements filed a timely notice of appeal.

Consideration of the Appellate Opinion on Direct Review

Clements argues the trial judge erred when he ruled that the Court of Appeal’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, 71 Cal.Rptr.2d 241, 950 P.2d 85, 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, 71 Cal.Rptr.2d 241, 950 P.2d 85.)  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, 71 Cal.Rptr.2d 241, 950 P.2d 85; see also Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885, 110 Cal.Rptr.2d 877.) 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, 175 Cal.Rptr.3d 640 [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, 144 Cal.Rptr.3d 843, 281 P.3d 906.)  The Court concluded 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.

Here, the 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 her brother  endangered His  life and that she acted in conscious disregard of that risk. The Court  affirmed the order denying Clements’ section 1170.95 petition for resentencing.

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