Modification: People v. Clements

THE PEOPLE,

Plaintiff and Respondent,

v.

JODY ANN CLEMENTS,

Defendant and Appellant.

No. E073965

(Super.Ct.No. SICRF1989169810)

The County of Inyo

California Court of Appeal

Fourth Appellate District

Division Two

Filed March 16, 2022

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 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, our Supreme Court held we should conduct an independent review when evaluating a trial judge's decision whether to vacate a conviction under a recently enacted statute offering relief to people who have already served their sentences but face deportation or other negative immigration consequences due to the conviction. (§ 1473.7.) "A successful section 1473.7 motion requires a showing, by a preponderance of the evidence, of a prejudicial error that affected the defendant's ability to meaningfully understand the actual or potential immigration consequences of a plea." (Vivar, at p. 517.) In choosing independent review in this context, the Court emphasized that the questions raised by a 1473.7 motion, "while mixed questions, are predominantly questions of law." (Vivar, at p. 524.) By contrast, the question whether Clements acted with reckless indifference to human life is predominantly a factual determination. We conclude that Perez, not Vivar, governs in the circumstances of Clements' appeal.

We note that the Supreme Court emphasized in Vivar that the "embrace of independent review in this context is a product of multiple factors with special relevance here: the history of section 1473.7, the interests at stake in a section 1473.7 motion, the type of evidence on which a section 1473.7 ruling is likely to be based, and the relative competence of trial courts and appellate courts to assess that evidence." (Vivar, supra, 11 Cal.5th at p. 527.) The same factors don't support applying independent review in the context of reviewing a trial judge's ruling after a full hearing under section 1170.95 subdivision (d)(3).

Except for the modification, which doesn't affect the judgment, the opinion is unchanged.

CERTIFIED FOR PUBLICATION

SLOUGH

J.

We concur:

CODRINGTON

Acting P. J.

FIELDS

J.