Filed 10/7/26 P. v. Clevenger CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089394
Plaintiff and Respondent,
(Super. Ct. No. SC081856B)
v.
SUSAN DIANE CLEVENGER, ORDER MODIFYING OPINION AND
DENYING REHEARING
Defendant and Appellant. [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on September 16, 2026, be modified in
the following particulars:
1. On page 11, the last sentence of the first full paragraph commencing with “She
asked” and ending with “public safety” is modified as follows: :
She asked the court to also consider her “exemplary prison
conduct” and her extensive achievements and
accomplishments while incarcerated, which evidenced that
she did not pose a risk to public safety.
2. The paragraph commencing at the bottom of page 23 with “The court determined
defendant’s” and ending at the top of page 24 with “individual conduct and
culpability” is modified to read as follows:
The court determined defendant’s major participation
in the kidnapping for ransom that resulted in death was a
strong countervailing factor that negated the available
mitigating factors. This countervailing factor is supported by
substantial, credible evidence of defendant’s significant
conduct in planning, setting up, and facilitating the
kidnapping for ransom. As we noted in our decision on
defendant’s petition for writ of habeas corpus, the trial
evidence suggested defendant planned the kidnapping for
ransom with Shell over many months and was “the one who
knew the building’s layout, the location of the victim’s office,
and when the victim would be alone in the building.” (In re
Clevenger, supra, F073991.) She also attempted to recruit
others to assist in the plan and appears to have let Shell and
his accomplice(s) into the building. Moreover, she knew that
a stun gun would be used to subdue the victim and therefore
anticipated the use of force was likely. (Ibid.) Although the
special circumstance finding was vacated and the murder
conviction recalled in part on the ground the trial evidence
did not show defendant knew Shell had a propensity for lethal
violence, the record before the trial court nonetheless suggests
defendant was deeply involved in planning a highly
dangerous kidnapping for ransom in which she was aware
some force would be used. We cannot say the court abused
its discretion in determining that defendant’s extensive
involvement in this inherently dangerous felony was
sufficient to “ ‘neutralize even the great weight of the
mitigating circumstance, such that dismissal of the
enhancement is not in furtherance of justice.’ ” (People v.
Walker, supra, 16 Cal.5th at p. 1036.) The court’s
individualized inquiry also rebuts defendant’s assertion that
the court did not “look at [her] as an individual”; rather, the
court’s determination was based entirely on defendant’s
individual conduct and culpability.
3. On page 25, in the first full paragraph, after the sentence ending “a fact which the
trial court acknowledged” and before the sentence beginning “Ultimately,
however,” insert the following sentence:
The trial court also acknowledged it had reviewed
defendant’s submissions, including the “different letters and
certificates” detailing her rehabilitative activities while
incarcerated.
4. On page 25, in the first full paragraph, after the last inserted sentence
that ends “activities while incarcerated,” the sentence beginning
2.
“Ultimately, however” and ending “furtherance of justice” is
modified to read as follows:
Ultimately, however, these circumstances did not alter the
court’s determination that dismissal of the enhancement was
not in the furtherance of justice.
There is no change in the judgment.
Appellant’s petition for rehearing is denied.
DETJEN, J.
WE CONCUR:
LEVY, Acting P. J.
SANDHU, J.
3.
Filed 9/16/26 P. v. Clevenger CA5 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or or dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089394
Plaintiff and Respondent,
(Super. Ct. No. SC081856B)
v.
SUSAN DIANE CLEVENGER,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Charlotte Woodfork and
Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant Susan Diane Clevenger appeals from a judgment entered after recall
and resentencing pursuant to Penal Code section 1172.6.1 She contends the court abused
its discretion under section 1385 in declining to strike a sentencing allegation and
sentencing her to a term of life without the possibility of parole because this sentence was
not in the interests of justice.
We affirm.
FACTUAL BACKGROUND
We take our statement of facts from our opinion in defendant’s direct appeal.
“On Monday, August 7, 2000, Bradley St. Clair was found murdered
in his investment office where he was a partner with his brother, Frank,
Jr.[2] St. Clair was found in his bookkeeper’s office adjacent to his own,
with his ankles, wrists and eyes bound by duct tape. The cause of death
was determined to be strangulation or garroting, with his own necktie.
“There were several bruises and scrapes to his head and body,
consistent with a struggle before his death. There was also a thin stab
wound to the back of his head. The pathologist opined the stab wound was
caused by either a knife or a box cutter with an extendable blade. Time of
death was estimated to be between 5:00 p.m. and 6:00 p.m. that evening.
“The victim’s wife Elisia testified that she spoke to her husband over
the telephone around 5:00 p.m. on August 7, 2000. She said her husband
planned to come home around 5:30 p.m. because they had dinner plans.
When her husband did not arrive at 5:30 p.m., she called her husband’s
office and cellular phone but received no answer.
“Bradley St. Clair’s mother, Arlana, testified that she and her
husband, Frank … , were co-owners of a property management/real estate
1 Undesignated statutory references are to the Penal Code. The resentencing
petition was filed pursuant to former section 1170.95. Former section 1170.95 was
renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We refer
to the current section 1172.6 in this opinion.
2 Pursuant to California Rules of Court, rule 8.90, we refer to some persons by
their first names or initials. No disrespect is intended.
2.
business located on Wible Road in Bakersfield. Her two sons, Frank Jr.
and Bradley, co-owned a real estate investment company. Both companies
operated out of the same building. [Defendant] worked for Bradley at his
investment company as secretary and property manager to one of their
apartment buildings for about a year and a half before the murder.
“On the evening of August 7, 2000[,] at around 6:00 p.m., Arlana …
received a call from the alarm company that serviced the office building.
She was informed the alarm monitors at the building had been activated.
Arlana then drove to the building to check on the alarm. When she arrived
at the office around 6:20 p.m., she saw only Bradley’s car in the parking
lot. The alarm apparently had cycled off since she did not hear it. Arlana
said she first walked to the northwest entrance to the building, the entrance
door to her sons’ business, and checked to see if the door was unlocked
because she did not have a key to that door. She then knocked on the door
but no one answered. She then walked to the northeast door, the entrance
to her business and unlocked the door. When she entered the building she
immediately noticed that the alarm panel near the door indicated that the
alarm had been tripped. She attempted to deactivate the alarm but the
system would not accept the alarm code. A few seconds later, the alarm
again sounded. She walked a few steps into the office and called out to her
son but received no response. She became apprehensive so she walked
outside, propped the door open, walked across the parking lot and dialed
911. While she was on the phone with the 911 operator, Arlana walked to
the front door of the building on Wible Road, opened the door with her key,
and again called out to her son but no one answered.
“Officer Damo responded to the first alarm at the office building at
approximately 6:04 p.m., before Arlana arrived. When the officer got there
the audible alarm was ringing. Damo noticed only a white car in the
parking lot, which was identified as Brad St. Clair’s vehicle. Damo walked
around the building, checking the doors, to see if the building was secure.
About that time the officer received a call that the alarm company was
attempting to cancel the response. The officer placed a note under the door
to indicate he had been there, and left. The officer came back to the office
building at around 6:30 p.m. in response to Arlana St. Clair’s 911 call.
When Damo returned, he entered the office and found Brad St. Clair’s body
lying face down in the secretary/bookkeeper’s office.
“Nancy [R.] worked for the alarm company that monitored the St.
Clair businesses. [Nancy] testified that on the evening of August 7th, the
first alarm was activated at 5:52 p.m., indicating that the zone at the
northwest motion detector and storage door had been activated. A second
3.
alarm was activated at 6:10 p.m. in the same zone. [Nancy] said that since
the alarm recycles every 12 minutes, it was possible that the second alarm
meant no new activation of the system, but that the system had not been
manually disarmed. A third alarm went into the monitoring office two
minutes later at 6:12 p.m., but this time the system indicated there was
movement in the central hall of the office and in front of the office. There
was yet another activation of the system at 6:24 p.m., at the side entry door.
At 6:32 p.m., that same door was tripped again.
“Terry [H.], a security technician for the alarm company testified
there were two alarm keypads installed in the office, one of which was
located at the northwest door. That keypad had been ripped from the wall.
[Terry] was able to determine that the alarm that sounded at 5:52 p.m. was
activated either by the motion detector in the secretary’s office or the
opening of the northwest door. The alarm at 6:12 p.m. was activated by
movement in the hall between [the] offices of Brad and Frank ….
“Crime scene investigation revealed no signs of any forced entry.
The blinds at the northwest door had been bent or damaged, and
bloodstains were found at the northwest door. St. Clair’s pants pockets had
been turned inside out and emptied. The office areas were in disarray
indicating a possible struggle. There was a tile in the ceiling over the
bookkeeper’s desk that was slightly out of alignment. There was a shoe
track on the bookkeeper’s desk directly underneath the dislodged ceiling
tile. There were also shoe prints on top of an end table in the secretary’s
desk. Shoe prints were also found in the dirt area directly outside the front
door.
“It was later determined that St. Clair’s watch, [P]alm [P]ilot,
wedding ring and cell phone were missing, but nothing had been taken
from the safe. St. Clair kept a gun in his credenza behind his desk. The
gun had not been taken.
“Detective [S.] Ramsey was lead investigator on the case. At the
scene he asked Arlana … which of the employees would be the last to leave
for the day. Arlana told him that [defendant] would have been the last
person to leave for the day. Officer Ramsey drove to [defendant’s]
apartment at around 11:00 p.m. that night. At her apartment were
[defendant], her sister Marlena, Keith Shell, and [defendant’s] daughter.
Ramsey testified that he thought his conversation with [defendant] at her
apartment that night was unusual because [defendant] did not cry or
become upset when he informed her of her boss’s death.
4.
“Ramsey asked [defendant] to accompany him to the office building
to determine what had been disturbed. [Defendant] returned to the office as
requested.
“At the scene, the officer asked [defendant] to describe anything that
she saw that was out of its normal place. [Defendant] told the officers that
several items had been removed from her desk and put into the trash can. A
plant near her desk had been removed from its drip pan, the telephone had
not been properly replaced, the blinds were bent, and she noticed that the
alarm pad had been removed. Officer Ramsey asked [defendant] what time
she had left the office. She told him that she normally left at 5:00 p.m., but
that day she had left around 5:20 p.m., and had left out of the northwest
door. [Defendant] told the officer that a woman named Christine had come
by the office wanting to speak with another employee who was not there
that day. [Defendant] allowed her to use the telephone to speak to that
person. They eventually left the office sometime between 5:15[]p.m. and
5:20 p.m. [Defendant] said that when she left, Brad St. Clair was working
at his desk in his office. She also told the officer that she did not have a
key to the business and did not know the alarm codes. This was confirmed
by Arlana …. The officer also asked [defendant] if she ‘knew anybody that
was either mad or upset with Brad or might want to hurt him,’ and
[defendant] told him that she did not.
“William [S.] had worked for the property management company as
a maintenance person for about four years prior to St. Clair’s death.
[William] testified that he had a telephone conversation with St. Clair
around 5:11 p.m. that day. During the week after the murder, [William]
had three conversations with [defendant]. During those conversations they
discussed whether [defendant] was in the office when [William] spoke with
Brad St. Clair that day. [Defendant] said she did not think she was in the
office when he was speaking with St. Clair. They spoke again the next day
and they again discussed the murder. They again talked about the time
[William] spoke with St. Clair and this time [defendant] said she must have
been in the office at the time. They spoke again a third time and
[defendant] said she believed she was already gone. [William] admitted
that St. Clair’s death was the main topic of conversation around the office
for a couple of weeks, and several people speculated about the
circumstances of his death.
“On Monday August 7th sometime between 4:30 and 5:00 p[.]m.,
Christine [K.] came by the business to speak with an employee named
Amanda [F.] regarding a personal matter. Apparently [Christine] did not
know that [Amanda] did not work in the office on Mondays. [Footnote
5.
omitted.] When [Christine] went inside the office she saw [defendant] at
her desk and Brad St. Clair at his. [Defendant] told [Christine] that
[Amanda] was not in the office but [defendant] did call [Amanda] for
[Christine] and allowed the two to converse. According to [Christine],
while she was speaking with [Amanda], [defendant] kept pushing buttons
on the telephone, which [Christine] thought was rude. [Footnote omitted.]
After [Christine] finished her conversation with [Amanda], [Christine] left.
“[Amanda] was the bookkeeper for the investment company. She
said she received the call from [Christine] at five minutes to 5:00 p.m. and
they talked until 5:15 p.m. She admitted that she rushed [Christine] off the
phone because she had to leave work at 5:30 p.m.
“On August 12, 2000, [defendant’s] brother Robert told [D]etective
Ramsey that on his father’s birthday, June 22, 2000, [defendant] spoke to
him about a kidnap plan of her boyfriend Keith Shell. [Defendant] was at
their parents’ house when she asked Robert to step outside with her. Robert
said [defendant] told him that she was only asking because Shell had
insisted. [Defendant] told her brother that Shell wanted her to ask him if he
wanted to participate in a kidnapping. Shell had been talking about
kidnapping one of the older St. Clairs for ransom. [Defendant] told her
brother that the plan was to subdue the older St. Clair with a stun gun.
Robert declined and that was the last he heard of the plan. Robert told
Detective Ramsey that [defendant] was not going to be involved in the
scheme, but Shell had asked her to talk to Robert about it.
“After St. Clair’s death, Robert joked about turning in Keith Shell in
order to collect the reward that had been offered. Robert did not know if
Shell was involved, only that he might have been involved because of the
earlier conversation with [defendant]. He told the police that the murder
might have been a ‘botched kidnapping.’
“After Ramsey’s conversation with [defendant’s] brother, Ramsey
asked [defendant] to come to the police department. [Defendant] was given
her Miranda3 rights which she waived and gave a taped statement to the
officer. [Footnote omitted.]
“Ramsey asked [defendant] if she had any knowledge of who may
have killed St. Clair or if she had anything to do with it. [Defendant]
denied knowing who may have killed St. Clair and said she had nothing to
do with his death. After the officer confronted [defendant] with the fact
3 “Miranda v. Arizona (1966) 384 U.S. 436.”
6.
that he had spoken to Robert, [defendant] confirmed that Shell had
mentioned that he was ‘entertaining the idea’ of kidnapping someone she
worked with. She said she thought Shell had first mentioned the kidnap
scheme in February or March 2000. Shell mentioned Robert and asked
[defendant] to speak to her brother about participating. Eventually she did
ask Robert. Robert said no.
“Detective Ramsey stated that [defendant] told him that when Shell
talked about the plan she told Shell that she thought the kidnap plan was a
bad idea and that she wanted nothing to do with it. She suggested that Shell
get out and get a job since he had not been working. [Defendant] told the
officer that she felt bad about approaching her brother about the plan.
“[Defendant] told Ramsey that on the day of the killing, Shell had
come by the office to give her some papers she needed to mail that day. He
came by while Christine [K.] was on the phone with [Amanda]. After
[Christine] left, [defendant] placed the phones on night service, told Brad
St. Clair that she was leaving, and left. She and Shell drove over to the
home of his friend Darren [C.], where she dropped him off and she left.
Shell came home just before the police arrived.
“The evidence collected at the scene was processed. DNA testing of
bloodstains on the door positively excluded [defendant], Keith Shell and
Brad as the source of the blood.
“Fingerprints were lifted from several places in the office. A print
was taken from the doorjamb of the bookkeeper’s office. It matched the
left middle finger of Keith Shell. Shell’s left palm print was found on a
page of a calendar found in a trashcan. Shell’s thumbprint was found on
the duct tape wrapped around the victim’s head. Shell’s palm print was
found on the tape removed from St. Clair’s ankles.
“Susan [H.] at one time shared a room with [defendant’s] sister
Marlena. According to [Susan], sometime in late July 2000, Marlena came
into their room and told [Susan] not to tell anyone about what Marlena was
about to tell her. [Susan] testified that Marlena told her that [defendant]
told Marlena that [defendant] and Shell were planning to kidnap
[defendant’s] boss. [Defendant] told her sister Marlena that Shell did not
want to work. [Defendant] had asked Marlena to help find someone to
assist with their plan. Marlena asked [Susan] whether [Susan] thought
Marlena’s boyfriend Arnold would help. [Susan’s] testimony was admitted
as impeachment of Marlena, who denied that any such conversation
between she and [Susan] ever occurred.” (People v. Clevenger (Dec. 5,
2003, F039853) [nonpub. opn.].)
7.
PROCEDURAL HISTORY
In 2001, a jury convicted defendant of the first degree murder of Bradley St. Clair
(§ 187, subd. (a); count 1), kidnapping St. Clair for ransom (§ 209, subd. (a); count 2),
and conspiracy to commit kidnapping of St. Clair for ransom (§ 182, subd. (a)(1);
count 3). On count 1, the jury found a kidnapping special circumstance true. (§ 190.2,
subd. (a)(17)(B).) On counts 2 and 3, the jury found true the allegation that St. Clair
suffered death in connection with or as a result of an act done by defendant in the
commission of kidnapping for ransom.4 (§ 209, subd. (a).) In 2002, defendant was
sentenced to three concurrent terms of life without the possibility of parole. In 2003, this
court affirmed. (People v. Clevenger, supra, F039853.)
In 2019, this court granted in part defendant’s petition for writ of habeas corpus
and vacated the special circumstance finding pursuant to People v. Banks (2015) 61
Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522. In so doing, we noted the
following:
“From the evidence presented at [defendant’s] trial, jurors
reasonably could have inferred [defendant] and Keith Shell planned the
kidnapping together, and that the planning took place over a period of time.
[Defendant] was the one who knew the building’s layout, the location of
the victim’s office, and when the victim would be alone in the building.
Jurors could also have inferred [defendant] tried to get [Christine] to leave
quickly after [Christine] showed up unexpectedly. From the absence of
evidence of forced entry, jurors reasonably could have inferred [defendant]
let Shell and his accomplice(s) into the building to carry out the kidnapping
plan. The fact [defendant] attempted to procure someone to assist Shell in
carrying out the plan, as well as her anticipation a stun gun would be used
to subdue the victim, reasonably suggest she was aware force likely would
have to be used to restrain the victim. In addition, she covered for Shell
after learning the victim was killed. On the other hand, there was no
evidence [defendant] intended for the victim to be killed or even anticipated
potentially lethal violence might be involved in the crime, no evidence
Shell or his accomplice(s) had a propensity for violence or that [defendant]
4 In this opinion, this allegation is sometimes referred to as the “death allegation.”
8.
had experience with Shell that suggested he might be violent, and
[defendant] was not present at the scene at a time when she was in a
position to facilitate or prevent the murder.
“We need not determine whether the foregoing evidence is sufficient
to sustain a finding [defendant] was a major participant in the kidnapping,
although we believe a strong argument can be made that she was. In order
to sustain the jury’s true finding on the felony-murder special circumstance,
the evidence must also show [defendant] acted with reckless indifference to
human life. It does not. [¶] … [¶]
“… Here, no reasonable juror could have found subjective or
objective recklessness, where there was no evidence [defendant] had reason
to believe Shell or his accomplice(s) might resort to lethal force or that she
contemplated the use of any weapon other than a stun gun, and [defendant]
almost certainly was not present at the time of the killing. Considering all
the evidence, ‘there appears to be nothing in the plan that one can point to
that elevated the risk to human life beyond those risks inherent in any’
kidnapping for ransom. [Citations.]
“United States Supreme Court cases suggest that court views
reckless indifference as ‘encompass[ing] a willingness to kill (or to assist
another in killing) to achieve a distinct aim, even if the defendant does not
specifically desire that death as the outcome of his actions.’ [Citation.] We
see no evidence of such willingness here. The Attorney General disagrees,
asserting: ‘[W]hile there was no evidence that [defendant] knew of any
prior violent conduct by Shell, his desperation for money was a driving
force behind the plan. The jury learned that [defendant] and Shell’s
financial situation was a source of great tension in their relationship.
[Defendant] had a young daughter, and [defendant] was pregnant with
Shell’s child. Shell had been out of work for several months, and he did
not want to seek employment or work anymore. [Defendant] was the sole
financial support for their family. It is reasonable to conclude from the
totality of the evidence that [defendant] knew Shell would have done
anything to execute the plan or, alternatively, to have done anything to
avoid being caught.’ (Record citations omitted.)
“In our view, the conclusion drawn by the Attorney General is
merely speculative. It does not follow, from evidence of financial
difficulties and resulting tensions, that a person who has no reason to know
her cohort might be violent would know he would turn lethally violent if
necessary to achieve a goal, whether it be to execute a plan or avoid
detection. To be relied upon in a determination whether evidence is
substantial, an inference ‘must be reasonable. An inference is not
9.
reasonable if it is based only on speculation. [Citation.]’ [Citation.]
Similarly, a reasonable inference may not be based on mere suspicion,
imagination, supposition, surmise, conjecture, or guesswork. [Citation.]
‘ “[S]peculation is not evidence, less still substantial evidence.” ’ ” (In re
Clevenger (Jan. 15, 2019, F073991) [nonpub. opn.].)
We remanded with directions for the trial court to resentence defendant on
count 1. In all other respects, the petition was denied. (In re Clevenger, supra,
F073991.) On remand, defendant was resentenced on count 1 to a term of 25 years to
life. Concurrent terms of life without the possibility of parole were maintained on
counts 2 and 3.
Prior to the issuance of the remittitur in In re Clevenger, supra, F073991,
defendant filed in the superior court a petition for recall and resentencing pursuant to
section 1172.6. The People ultimately conceded she was entitled to resentencing on
count 1 based on this court’s determination in In re Clevenger that she did not act with
reckless indifference to human life. (See In re Clevenger, supra, F073991.) At a hearing
conducted in 2021, the trial court recalled the sentence and again sentenced defendant on
counts 2 and 3 to concurrent terms of life without the possibility of parole. The court
redesignated count 1 as kidnapping (§ 207, subd. (a)), and sentenced defendant on that
count to the upper term of eight years, to be served concurrent with count 2. On appeal,
the People conceded the trial court did not understand the scope of its authority to
resentence defendant on counts 2 and 3. The People also conceded the sentence on two
of defendant’s three convictions must be stayed pursuant to section 654, and the court
erred in its award of direct victim restitution and its calculation of custody credits. We
accepted the concessions, vacated the sentence, and remanded for resentencing on all
counts. (People v. Clevenger (Nov. 15, 2022, F082713) [nonpub. opn.].)
On remand, defendant filed a memorandum of points and authorities in support of
resentencing. Defendant noted that, pursuant to section 209, subdivision (a), a person
who commits a kidnapping for ransom that results in the death of the victim is subject to
10.
imprisonment for a term of life without the possibility of parole. However, pursuant to
section 1385, the court may strike the factual allegation that the kidnapping resulted in
death, allowing the court to impose a lower sentence. Defendant asked the court to
impose a lower sentence of life with the possibility of parole in light of her history of
being abused as a child and young adult, as well as her relatively discipline-free time in
custody. As described below, she cited several statutory and rule-based mitigating
factors in support of this request.5
Relying on section 1385, subdivision (c)(2), defendant urged the court to dismiss
the death allegation relating to the kidnapping for ransom based on the following
mitigating circumstances: that application of the enhancement would result in a sentence
of over 20 years (§ 1385, subd. (c)(2)(C)), and the current offense is connected to prior
victimization or childhood trauma (id., subd. (c)(2)(E)). She asked the court to also
consider her “exemplary prison conduct,” which evidenced that she did not pose a risk to
public safety.
Defendant also asked the court to “weigh very heavily” three mitigating factors set
forth in section 11706: she had experienced trauma (§ 1170, subd. (b)(6)(A)), was a
youth at the time of the offense (id., subd. (b)(6)(B)), and was a victim of intimate partner
violence or human trafficking prior to the offense (id., subd. (b)(6)(C)). Defendant
explained that forensic social worker S. Itelson had conducted interviews and reviewed
defendant’s prison file and determined defendant had experienced these mitigating
5 She also argued the evidence was insufficient to support the sentencing factor of
aggravated kidnapping for ransom with death and that the imposition of a term of life
without the possibility of parole violates her federal constitutional right to be free from
excessive punishment under the Eighth and Fourteenth Amendments. She does not raise
these arguments on appeal.
6 Section 1170, subdivision (b) applies when a judgment of imprisonment is to be
imposed and the statute specifies three possible terms. (§ 1170, subd. (b)(1).)
Accordingly, this statute applied only to the imposition of sentence on the redesignated
crime of kidnapping on count 1.
11.
factors. Defendant asserted these factors are also described in rule 4.423(b) of the
California Rules of Court7 and subdivision (c)(2) of section 1385. Defendant urged the
court to weigh these factors heavily in determining an appropriate sentence.
Defendant also asked the court to find and consider several mitigating factors
relating to the crime set forth in rule 4.423(a). First, she asserted she was a passive
participant or played a minor role in the offense compared to Shell. (Rule 4.423(a)(1).)
Second, she asserted the crime was committed because of an unusual circumstance that is
unlikely to recur (rule 4.423(a)(3)), she acted under duress (rule 4.423(a)(4)), and she was
motivated by a desire to provide necessities for her family (rule 4.423(a)(8)). In this
regard, she noted she had a young daughter, was pregnant with Shell’s child, and was the
sole financial support for their family because Shell did not wish to seek work. Lastly,
she argued she was induced by Shell to commit the crime and had no apparent
predisposition to commit the crime. She noted her criminal record consisted of a single
misdemeanor for forgery, she had no history of violence, and she had made statements to
others indicating the kidnapping was Shell’s idea and she was unwilling to participate.
Defendant also asked the court to find and consider several mitigating factors that
are set forth in rule 4.423(b). First, she asked the court to consider that she had an
insignificant prior record of criminal conduct and had successfully completed probation.
(Rule 4.423(b)(1), (15).) Second, she asked the court to consider that she was suffering
from a mental or physical condition, i.e., pregnancy, that “undoubtedly had an impact on
her emotions and judg[]ment,” and that therefore reduced her culpability for the crime.
(Rule 4.423(b)(2).) Next, she asked the court to consider that she experienced childhood
trauma that led to her poor choices in men, including Shell, who was psychologically and
verbally abusive to her. Thus, she asked the court to consider that she suffered trauma
that was a factor in the commission of the crime, the commission of the offense was
7 Undesignated references to rules are to the California Rules of Court.
12.
connected to her prior victimization or trauma, and she was a victim of intimate partner
violence at the time of the commission of the offense and that violence was a factor in the
commission of the offense. (Rule 4.423(b)(3)–(5).) Finally, defendant asked the court to
consider that she was 25 years old, and thus under 26 years of age, at the time of the
commission of the offense, while Shell was 13 years her senior. (Rule 4.423(b)(6)).
Defendant set forth the following facts relating to her history of trauma, which
were taken from Itelson’s report:
“[Defendant’s] early years were marked by severe childhood abuse.
Here [sic] father was a violent drunk who started sexually abusing
[defendant] when she was only ten years old. His alcoholism left the
family impoverished.
“The abuse from her father was continuous until her mother finally
kicked him out of the home. After her father left the home, the family’s
financial situation became even more dire. [Defendant’s] mother was now
forced to work and [defendant] and her younger siblings were either left
home alone under [defendant’s] ca[r]e all night, or slept on the floor of the
[gas station] where her mother worked.
“With [defendant’s] father out of the home, there were times they
lived without food to eat or electricity. [Defendant’s] mother finally let her
father return and then the physical abuse started toward [defendant’s]
mother. To make things worse, [defendant’s] mother discovered ‘crank’ in
1986 and used it almost every day for 20 years. The drug became the only
thing that mattered to her and she stopped showing any affection to her
children.
“Ms. Itelson informs this court that experiencing Adverse Childhood
Experiences (ACES) creates complex trauma for children. As a result of
this trauma, these children are at a much greater risk for engaging in
criminality. While only three ACES puts an individual at an elevated risk
for trauma, [defendant] has experienced seven out of ten ACES.
Specifically emotional abuse, sexual abuse, emotional neglect, physical
neglect, domestic violence, parental separation, and have [sic] a criminal
household member.
“As a result[] of her traumatic, violent, and abusive upbringing,
[defendant] had a distorted view of normalcy. She dropped out of high
school before graduating to help provide financial support to her family.
13.
“As a young adult, [defendant] started dating the ‘wrong’ kind of
men and by age 21 had her first baby by Devon. Devon was physically
abusive toward [defendant], and their relationship was short lived.
“[Defendant] started taking business courses … and was taking care
of her daughter by herself, when her relationship with the co-defendant,
Keith Shell, became serious. Keith was manipulative, and verbally abusive
toward [defendant] and he cheated on her. Due to her childhood family
life, [defendant] justified their toxic relationship, explaining that he wasn’t
as bad as Devon. [Defendant] stated to Ms. Itelson, ‘I stayed with Keith
despite the red flags because of layers of instabilities and unresolved
trauma from my childhood. Healthy relationships were never modeled.’
“Ms. Itelson recognizes that all the, [¶] [H]ardships and challenges
[defendant] [experienced] throughout her life, many of which she was
unable to extricate herself from. At the time of the offense, her immaturity,
an underdeveloped sense of responsibility, and distorted self-image coupled
with impetuous actions and decisions, vulnerability to peer pressure, and
the need for acceptance, set up the premises for her to be the quintessential
youth offender.” (Record citations omitted.)
In response, the People advocated for the application of several factors in
aggravation pursuant to rule 4.421(a)(1), (3), (4), (7), (8), (11), and (b)(1). As for the rule
4.423 factors in mitigation advocated by defendant, the People argued she was not a
passive participant in the crime and her claims of acting under an unusual circumstance,
duress, inducement by others, need to provide necessities for her family, or influence of
her young age, were unsupported by admissible evidence. The People acknowledged
defendant’s age at the time of the crime and lack of criminal record but argued there was
no evidence other than her own hearsay statements to a social worker to support her
remaining claims. The People also noted that defendant conspired with Shell over the
course of several months to kidnap St. Clair for a $1 million ransom and solicited at least
one other person to participate in the plan.
The People argued the sentence should not be reduced to life with the possibility
of parole in the interests of justice. The People argued “defendant’s extremely active
participation in both the planning and execution of the months-long plot to kidnap
14.
Bradley St. Clair for ransom, which clearly resulted in his death,” required defendant to
spend “an incredible amount of time planning, plotting and conspiring with her violent
boyfriend (Keith Shell) to kidnap Bradley St. Clair for nothing more than pure greed. In
her active participation in the kidnap for ransom resulting in death (Count Two) AND
conspiracy to kidnap for ransom resulting in death (Count Three), the defendant enticed
others to participate, took advantage of a position of trust and a particularly generous and
vulnerable victim. This was not a decision made on a whim, nor a moment of weakness
on the defendant’s part.” The People also argued defendant constituted a risk to public
safety.
At the resentencing hearing, the court stated it had reviewed voluminous records
from the defense, including prison records, Itelson’s report,8 defendant’s arguments and
the People’s response. Defendant acknowledged that she played “a large part” in the
kidnapping for ransom but argued she played only a minimal role, or no role, in St.
Clair’s death. She also noted that this court had determined, in relation to defendant’s
habeas corpus petition, that there was no evidence defendant was aware that Shell had
any prior violent conduct.
The People pointed out that this court, on review of defendant’s habeas corpus
petition, had found her to be a major participant in the kidnapping for ransom and that
she was active in the planning and execution of the plot up until the hour that St. Clair
was murdered. She enticed, or attempted to entice, others to participate in the crime and
reviewed St. Clair’s financials to determine the amount of ransom he could afford. She
also made phone calls on the afternoon of the kidnapping to ensure that others were not
present in the office. Furthermore, the People asserted that kidnapping for ransom is
inherently more dangerous than ordinary kidnapping. The People pointed out that the
8 The People initially objected to Itelson’s report as inadmissible hearsay but later
waived the objection to avoid an additional continuance of the hearing.
15.
offense would not have happened but for defendant’s participation, given she had the
knowledge of the family’s finances and the business’s schedule. Defendant planned with
Shell, who she knew to be violent, to kidnap St. Clair and hold him until the family paid
the specific amount of $1 million. The People disputed defense counsel’s assertion that
defendant did not know Shell was violent in light of Itelson’s report describing
defendant’s account of Shell being violent and abusive. Despite this knowledge,
defendant let Shell into the property to conduct an inherently violent felony. The People
asked the court to maintain the sentence of life without the possibility of parole on
count 2 based on the jury’s finding that death occurred, and to impose and stay the same
sentence on count 3 pursuant to section 654.
The court asked the People about factors in mitigation and aggravation, noting,
“They really only relate to Count [1].”9 The court noted the People had asked the court
to find several factors in aggravation, but those factors had not been submitted to a jury.
The People argued the court could consider aggravating factors listed in rule 4.421(a)(1)
through (b)(1). Defense counsel objected. The court stated the issue had “no practical
consequence” but needed to be addressed. The People pointed out that the jury did find
that the kidnapping resulted in death.
The court ultimately ruled as follows:
“First of all, to the family, I apologize I didn’t get it right the first
time. I didn’t realize you were in town for the sentencing. I apologize
making you go through this again. I wish I’d done it right the first time, but
it’s come back here.
“I understand most of you don’t agree with the law that’s changed; a
lot of judicial officers don’t either. But I’m tasked with following the law,
not either agreeing or disagreeing with it. That’s why we’re here.
9 The court initially stated these factors related only to count 3 but later corrected
itself to note these applied only to count 1.
16.
“As to [defendant’s] actions, this murder resulted because of her
actions. She was 100 percent culpable. I understand she cannot be found
guilty of the murder, as the district attorney’s made clear. However, she set
this up, she was a major participant in the kidnapping. The kidnapping
obviously, unfortunately, concluded in the homicide of this young man,
father, son.
“In looking at all factors in this case, including the social worker’s
report, and assuming to be true the horrible background of [defendant’s]
life that no person should live, specifically doesn’t mitigate or weigh
against her actions. There are many, many people in our society who have
had these horrible backgrounds and they don’t go on to set up a kidnapping
for ransom which results in a murder. So, I don’t think there’s any good
reason, certainly not in the interests of justice, to strike this special finding,
the true finding by the jury that this kidnapping for ransom resulted in a
homicide or murder. I just don’t think that that justifies doing so.
“I recognize that she’s done well in prison. She’s only had the one
write-up for her hair. I read a lot of [prison f]iles in my life, in my career;
there’s not very many prisoners who can go through the prison system with
that type of clean record. Some do, but it’s hard.
“I have to consider that, because it’s 2025, I have to consider
everything. That still doesn’t mitigate, and I think in my opinion to reduce
the true finding that this resulted in a homicide.
“I do want to caution the family, though, that 25 years ago or
actually 15 years ago I was having a discussion with the deputy D. A. and
she told me that they were going to let murderers out one day. I thought,
no, they’re not. I was wrong.
“She will still receive an LWOP, but I want you to be prepared that
the law, I’m sure [the prosecutor] told you, the law is going to change
again. There are laws out there that, even though they’re [life without the
possibility of parole], it might allow her to be free one day. So be prepared
for that, don’t be surprised. I don’t know if it will happen or not, but
nothing surprises me anymore in this business. Just be prepared for that.
“[Defendant], based on your actions and how you set this up, I think
you deserve the [life without the possibility of parole], even though you’ve
done well in prison. I think that’s an appropriate sentence.
17.
“As far as factors in aggravation, mitigation, which only affects
Count [1], and has no practical … consequences. I will find that she had a
minimal record prior to this offense.”
The court went on to note that defendant’s only prior conviction was for a
misdemeanor and stated it was not going to find any factors in aggravation because they
were not pled and proved to a jury. The court then summarized: “With that in mind,
though, and having considered the entire record, the statements by the family, all [the]
paperwork that I cited at the beginning of this hearing filed by counsel, I think that the
appropriate sentence is the life without possibility of parole.”
The court sentenced defendant on count 2 to a term of life without the possibility
of parole. On count 3, the court sentenced defendant to a term of life without the
possibility of parole, stayed pursuant to section 654. On count 1, the court sentenced
defendant to the middle term of five years, stayed pursuant to section 654. The court
stated that the factors in mitigation did not “call for the low term” on count 1.10
DISCUSSION
Defendant contends the court abused its discretion in sentencing her on counts 2
and 3 to a term of life without the possibility of parole. She contends the court had
discretion, pursuant to section 1385, to strike the allegation that the kidnapping resulted
in death and should have done so in light of evidence that defendant experienced
childhood trauma and victimization. She argues the court failed to give great weight to
this evidence, as required by subdivision (c)(2) of section 1385, and failed to adequately
consider evidence of her postjudgment conduct in prison. Lastly, she contends the court
10 The court also corrected the restitution and custody credits, as required by the
remittitur in defendant’s prior appeal.
18.
failed to consider other factors in mitigation, including her youth, as relevant to her
sentence on counts 2 and 3.11
I. Applicable Law
The offense of kidnapping for ransom is set forth in section 209, subdivision (a).
When the victim of the kidnapping for ransom does not suffer death or great bodily harm,
the applicable sentence for this offense is imprisonment for a term of life with the
possibility of parole. However, when the victim suffers death or great bodily harm, the
applicable sentence is life without the possibility of parole. (§ 209, subd. (a).)
Subdivision (a) of section 1385 permits a court to dismiss an action in furtherance
of justice. This authority extends to the dismissal of sentencing enhancements. (See
§ 1385, subds. (b), (c).) The death allegation under section 209, subdivision (a) is similar
in effect to an enhancement allegation in that it requires an enhanced sentence. (People
v. Marsh (1984) 36 Cal.3d 134, 143.) As such, a court retains authority under section
1385 to strike the allegation and sentence a defendant to the lower term of life with the
possibility of parole. (Marsh, at pp. 143–144.)
As amended by Senate Bill No. 81 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 721,
§ 1), subdivision (c)(1) of section 1385 provides: “Notwithstanding any other law, the
court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if
dismissal of that enhancement is prohibited by any initiative statute.” Subdivision (c)(2)
of section 1385 guides the court’s exercise of this discretion when certain mitigating
factors are present. Subdivision (c)(2) provides, in relevant part: “In exercising its
discretion under this subdivision, the court shall consider and afford great weight to
evidence offered by the defendant to prove that any of the mitigating circumstances in
11 To the extent these arguments are forfeited, defendant asserts ineffective
assistance of counsel. Although the People argue some of defendant’s more minor points
are forfeited, they nonetheless address defendant’s claims on the merits. We likewise
address and reject her claims on the merits.
19.
subparagraphs (A) to (I) are present. Proof of the presence of one or more of these
circumstances weighs greatly in favor of dismissing the enhancement, unless the court
finds that dismissal of the enhancement would endanger public safety.” Included within
the referenced mitigating circumstances are the circumstances that “[t]he application of
an enhancement could result in a sentence of over 20 years” (§ 1385, subd. (c)(2)(C)),
and that “[t]he current offense is connected to prior victimization or childhood trauma”
(id., subd. (c)(2)(E)).
“The phrase ‘great weight’ in [the first sentence of section 1385, subdivision
(c)(2)] refers to ‘the trial court’s evaluation of the defendant’s evidence in the first
instance.’ [Citation.] The second sentence of section 1385, subdivision (c)(2) dictates
that a proven mitigating circumstance ‘weighs greatly in favor of dismissing the
enhancement, unless the court finds that dismissal of the enhancement would endanger
public safety.’ ” (People v. Walker (2024) 16 Cal.5th 1024, 1034, italics omitted.) This
process requires the sentencing court to “ ‘engage[] in a holistic balancing with special
emphasis on the enumerated mitigating factors,’ in which the mitigating factors weigh
‘strongly in favor of … dismissal.’ ” (Id. at p. 1036.) The “mitigating circumstances are
entitled to ‘increased significance and importance in the [court’s] overall balancing of
factors’ under section 1385. Stated simply, if the court does not conclude that dismissal
would endanger public safety, then mitigating circumstances strongly favor dismissing
the enhancement. But ultimately, the court must determine whether dismissal is in
furtherance of justice. This means that, absent a danger to public safety, the presence of
an enumerated mitigating circumstance will generally result in the dismissal of an
enhancement unless the sentencing court finds substantial, credible evidence of
countervailing factors that ‘may nonetheless neutralize even the great weight of the
mitigating circumstance, such that dismissal of the enhancement is not in furtherance of
justice.’ ” (Ibid.) “[T]here must be substantial, relevant, and credible evidence of
aggravating factors to neutralize the ‘great weight’ of the mitigating circumstances.”
20.
(Ibid.) Nonetheless, “notwithstanding the presence of a mitigating circumstance, trial
courts retain their discretion to impose an enhancement based on circumstances ‘long
deemed essential to the “furtherance of justice” inquiry.’ ” (Id. at p. 1033.)
In addition to the mitigating circumstances listed in section 1385, subdivision
(c)(2), “the court maintains authority to dismiss or strike an enhancement in accordance
with subdivision (a)” in furtherance of justice. (§ 1385, subd. (c)(4); see id., subd. (a).)
The phrase “in furtherance of justice” is not statutorily defined. Our Supreme Court has
held that “section 1385’s reference to ‘in furtherance of justice’ requires ‘ “consideration
both of the constitutional rights of the defendant and the interests of society represented
by the People.” ’ [Citation.] ‘At the very least, the reason for dismissal must be “that
which would motivate a reasonable judge.” ’ ” (Wheeler v. Appellate Division of
Superior Court (2024) 15 Cal.5th 1193, 1206.) The reasons may include factors intrinsic
to the sentencing scheme or the statutory scheme established for the prosecution of the
crime, as well as the defendant’s “ ‘background, character, and prospects.’ ” (Id. at
p. 1207; see id. at p. 1208.) A defendant’s “level of culpability” is also relevant,
irrespective of the strength of the evidence of the defendant’s guilt. (Id. at pp. 1209,
1212.) Furthermore, many of the rule-based mitigating circumstances set forth in rule
4.423 are relevant to the court’s consideration of culpability for determining whether a
dismissal is in furtherance of justice. (Wheeler v. Appellate Division of Superior Court,
at pp. 1209, 1212; accord, People v. Thomas (1992) 4 Cal.4th 206, 212 [“[Former r]ule
423’s list of mitigating circumstances mirrors many of the considerations we have stated
are appropriate in determining whether to dismiss an action under section 1385 in
furtherance of justice.”].) However, our Supreme Court has cautioned that “the
circumstances must be ‘ “extraordinary” ’ that would take a defendant ‘ “outside the spirit
of the very [statutory or sentencing] scheme within which he [or she] squarely falls.” ’ ”
(Wheeler v. Appellate Division of Superior Court, at p. 1212.)
21.
We review the trial court’s sentencing choices for abuse of discretion. “To
establish an abuse of discretion, [a] defendant[] must demonstrate that the trial court’s
decision was so erroneous that it ‘falls outside the bounds of reason.’ [Citations.] A
merely debatable ruling cannot be deemed an abuse of discretion. [Citations.] An abuse
of discretion will be ‘established by “a showing the trial court exercised its discretion in
an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage
of justice.” ’ ” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.)
II. Analysis
We begin with defendant’s claims regarding the statutory factors listed in section
1385, subdivision (c)(2). Defendant contends the court did not “properly consider” her
mitigating evidence of these factors or afford them the requisite great weight. She argues
the court failed to assign “significant value” to her childhood trauma or prior
victimization and instead dismissed these factors by noting other people with similar
backgrounds do not commit similar offenses. She also asserts the court failed to evaluate
her “as an individual.” We disagree with defendant’s characterization of the record and
conclude the court did not abuse its discretion in declining to strike the death allegation
based on these factors.
The record reflects the court reviewed the extensive filings of the defense,
including prison records, Itelson’s report, and defendant’s written arguments.
Defendant’s written arguments asked the court to find and consider two mitigating factors
enumerated in section 1385, namely subdivision (c)(2)(C) and (c)(2)(E). The court
specifically referred to defendant’s written arguments, Itelsen’s report, and defendant’s
prison file in its ruling. The court and parties also engaged in lengthy discussion
regarding the People’s objections to the report, which the People ultimately waived.
Moreover, the court stated that, for purposes of sentencing, it assumed the facts in the
social worker’s report to be true. It therefore is clear the court considered defendant’s
evidence and argument on these points.
22.
Because the court credited defendant’s evidence of mitigating circumstances12 and
did not find that dismissal of the death allegation would endanger public safety, the
mitigating circumstances strongly favored dismissal. (People v. Walker, supra, 16
Cal.5th at p. 1036.) Nonetheless, the court ultimately was required to determine whether
dismissal was in furtherance of justice and retained its discretion “to impose [sentence
based on the death allegation] based on circumstances ‘long deemed essential to the
“furtherance of justice” inquiry.’ ” (Id. at p. 1033; see id. at p. 1036.)
The court determined defendant’s major participation in the kidnapping for
ransom that resulted in death was a strong countervailing factor that negated the available
mitigating factors. This countervailing factor is supported by substantial, credible
evidence of defendant’s significant conduct in planning, setting up, and facilitating the
kidnapping for ransom. As we noted in our decision on defendant’s petition for writ of
habeas corpus, the trial evidence suggested defendant planned the kidnapping for ransom
with Shell over many months and was “the one who knew the building’s layout, the
location of the victim’s office, and when the victim would be alone in the building.” (In
re Clevenger, supra, F073991.) She also attempted to recruit others to assist in the plan
and appears to have let Shell and his accomplice(s) into the building. Moreover, she
knew that a stun gun would be used to subdue the victim and therefore anticipated the use
of force was likely. (Ibid.) Although the special circumstance finding was vacated and
the murder conviction recalled in part on the ground the trial evidence did not show
12 The court proceeded with its analysis “assuming to be true the horrible
background of [defendant’s] life that no person should live.” It is unclear whether the
court concluded the offense was not “connected to” this prior victimization and trauma,
as required for the mitigating factor set forth in section 1385, subdivision (c)(2)(E) to
apply, or whether the court concluded this factor applied, but was neutralized by other
countervailing factors. For purposes of our analysis, we assume the court determined that
defendant’s prior victimization and trauma were connected to the offense but also
determined that this mitigating factor was neutralized by other countervailing factors, as
described below.
23.
defendant knew Shell had a propensity for lethal violence, defendant now relies on her
experience with Shell’s propensity for violence as a mitigating circumstance. Thus, the
record before the trial court, which included defendant’s new evidence regarding Shell’s
history of violence, suggested defendant was deeply involved in planning a highly
dangerous kidnapping for ransom with a man she knew to be prone to violence, and in
which she was aware force would be used. We cannot say the court abused its discretion
in determining that defendant’s extensive involvement in this inherently dangerous felony
was sufficient to “ ‘neutralize even the great weight of the mitigating circumstance, such
that dismissal of the enhancement is not in furtherance of justice.’ ” (People v. Walker,
supra, 16 Cal.5th at p. 1036.) The court’s individualized inquiry also rebuts defendant’s
assertion that the court did not “look at [her] as an individual”; rather, the court’s
determination was based entirely on defendant’s individual conduct and culpability.
We acknowledge the court did not expressly address the mitigating factor stated in
section 1385, subdivision (c)(2)(C), that application of the enhancement would result in a
sentence of over 20 years. However, the court was “ ‘not required to state reasons for
declining to exercise its discretion under section 1385,’ ” and “ ‘is presumed to have
considered all of the relevant factors in the absence of an affirmative record to the
contrary.’ ” (People v. Brugman (2021) 62 Cal.App.5th 608, 637.) Defendant does not
demonstrate the court abused its discretion in impliedly determining this factor was
negated by evidence of countervailing factors relating to defendant’s participation in the
offense. (See People v. Carmony (2004) 33 Cal.4th 367, 376 [“ ‘ “[t]he burden is on the
party attacking the sentence to clearly show that the sentencing decision was irrational or
24.
arbitrary” ’ ”].) We additionally note that defendant would be subject to an indeterminate
life sentence, irrespective of whether the court struck the death allegation.13
As defendant points out, in addition to the mitigating circumstances that carry
“great weight” under section 1385, subdivision (c)(2), the court may consider other
mitigating factors in determining whether dismissal of an enhancement is in furtherance
of justice. (§ 1385, subd. (c)(4).) The court clearly was aware that it was not limited to
only those circumstances described in section 1385, subdivision (c)(2), inasmuch as it
also considered the effect of defendant’s nearly discipline-free time in custody on its
analysis. There is no question that defendant’s conduct while in custody has been
exemplary, a fact which the trial court acknowledged. Ultimately, however, this
circumstance did not alter the court’s determination that dismissal of the enhancement
was not in the furtherance of justice. Defendant has not shown an abuse of discretion
with regard to this factor.
Defendant also contends the court abused its discretion in failing to consider the
various rule-based factors defendant cited as mitigating circumstances in support of
striking the death allegation. Defendant is correct that the court stated, without objection
from defendant, that its consideration of these factors was limited to count 1.
13 Relying on section 3046, subdivision (a)(1), defendant contends that the
“sentence of life imprisonment does not mean the defendant will serve a sentence
exceeding 20 years” because “[t]he minimum time required to be served is seven years.”
However, defendant was originally sentenced in 2002 and thus has already served well
over 20 years in custody. There is no possibility that striking the death allegation would
result in a sentence of less than 20 years in this case. The court’s calculation of
defendant’s custody credits reflects the court was aware of the length of defendant’s
incarceration. Additionally, as described below, the court was aware of defendant’s in-
custody conduct, and nonetheless concluded striking the death allegation would not be in
furtherance of justice.
25.
Nonetheless, we conclude the court’s failure to expressly consider these factors in
relation to counts 2 and 3 was harmless.14
Most of the rule-based factors in mitigation, as well as the evidence supporting
those factors, overlapped with the statutory factors the court expressly considered and
rejected in relation to defendant’s claimed factors in mitigation under section 1385.
Specifically, defendant argued the crime was committed because of an unusual
circumstance (i.e., abuse and trauma), that is unlikely to recur (rule 4.423(a)(3)), she
acted under duress (rule 4.423(a)(4)), she was motivated by a desire to provide
necessities for her family due to Shell’s refusal to work (rule 4.423(a)(8)), and she was
induced by Shell to commit the crime and had no apparent predisposition to commit the
crime (rule 4.423(a)(5)). She also asked the court to consider that she suffered trauma
that was a factor in the commission of the crime, the commission of the offense was
connected to her prior victimization or trauma, she was a victim of intimate partner
violence at the time of the commission of the offense, and that violence was a factor in
the commission of the offense. (Rule 4.423(b)(3)–(5).) The court considered all these
points, as well as Itelson’s report in support of these points, in relation to counts 2 and 3
when it considered defendant’s claim that the connection between her offense and her
prior victimization and childhood trauma supported dismissal of the death allegation
under section 1385, subdivision (c)(2)(E). In other words, although the court did not
consider rule 4.423 in relation to counts 2 and 3, the court nonetheless determined these
mitigating circumstances did not support dismissal of the death allegation in the
furtherance of justice. The record establishes the court would have reached the same
14 Absent federal constitutional error, a court’s failure to consider existing rules-
based mitigating circumstances is state law error, reviewable for prejudice under the
standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Guerrero
(2022) 76 Cal.App.5th 329, 337, fn. 10.) Under this standard, we consider whether it is
reasonably probable defendant would have received a more favorable outcome absent the
error. (People v. Perez (2018) 4 Cal.5th 421, 438.)
26.
conclusion, and would not have dismissed the death allegation, even if it had also
considered these factors under rule 4.423. There is no probability defendant would have
achieved a more favorable sentence had the court expressly considered the factors under
rule 4.423.
Defendant also asked the court to find and consider that she was a passive
participant or played a minor role in the offense. (Rule 4.423(a)(1).) The court’s ruling
under section 1385, subdivision (c)(2) makes clear the court disagreed that defendant was
a passive or minor participant in the offense. Indeed, the court noted she was a major
participant in the offense and “100 percent culpable.” There is no probability defendant
would have achieved a more favorable disposition had the court considered this
circumstance under rule 4.423.
Defendant also argued her youth at the time of the offense reduced her culpability
for the crime. (Rule 4.423(b)(6).) Although the court did not expressly mention this
factor, it was discussed in Itelson’s report, which described defendant as “the
quintessential youth offender.” The court disagreed that Itelson’s report supported
striking the death allegation in the furtherance of justice. We also note that defendant
was 19 days short of her 26th birthday at the time she committed the offense.
“Presumably, the presumption of immaturity [associated with youthful offenders]
weakens as a defendant approaches 26.” (People v. Oliver (2023) 90 Cal.App.5th 466,
489.) Additionally, defendant was a single parent to a young child and had at least some
postsecondary education and employment at the time she committed the offense, further
diminishing any presumption of immaturity. The court also emphasized that defendant
was deeply involved in the planning of the offense, which occurred over the course of
months. Thus, the record does not suggest defendant acted under the rashness or
impulsiveness that support “[i]nferences of immaturity” typically associated with
youthful offenders. (People v. Pittman (2023) 96 Cal.App.5th 400, 418.) The court did
27.
not abuse its discretion in concluding this factor did not support striking the death
allegation.
Defendant also argued her insignificant prior record and history of successfully
completing probation warranted dismissal of the death allegation. (Rule 4.423(b)(1),
(15).) While the court apparently did not consider this circumstance in relation to its
decision whether to strike the death allegation attached to counts 2 and 3 pursuant section
1385, it did consider this circumstance in relation to whether to impose a middle- or
lower-term sentence on count 1. The court took note of defendant’s minimal prior record
but determined the middle term was nonetheless the appropriate sentence. In other
words, the court concluded defendant’s prior record did not warrant reducing her
determinate sentence from five years to three years. There is no reasonable probability
the court would have concluded this circumstance warranted reducing her indeterminate
sentence from life without the possibility of parole to life with the possibility of parole.
Finally, defendant argued her pregnancy, which “undoubtedly had an impact on
her emotions and judg[]ment,” reduced her culpability for the crime. (Rule 4.423(b)(2).)
However, there is no evidence in the record to support the contention that defendant’s
pregnancy clouded her emotions and judgment in a way that reduced her culpability for
the crime, which, again, was planned by defendant over the course of months.
Defendant also notes that the trial judge made “statements indicating antipathy
toward the changes in the law that favored [defendant].” While the trial judge did make
statements expressing sympathy for the effect of the resentencing proceedings on the
victim’s family, the judge also stated that it was “tasked with following the law, not
either agreeing or disagreeing with it.” The record does not support defendant’s assertion
that the court was unable to put aside any personal feelings regarding the changes in law
in order to properly exercise its discretion under section 1385.
Finally, defendant seemingly suggests it is unfair to hold her accountable for the
death resulting from the kidnapping for ransom under circumstances where she cannot be
28.
held accountable for the murder itself, particularly in light of the other mitigating
circumstances she presents. However, the Legislature has determined that life without
parole is the appropriate sentence for kidnapping for ransom where death to the victim
results. (§ 209, subd. (a); see People v. Castillo (1991) 233 Cal.App.3d 36, 66 [subject to
constitutional limitations, “ ‘[t]he selection of a proper penalty for a criminal offense is a
legislative function’ ”].) For the reasons stated, defendant has not shown the court
abused its discretion by imposing the legislatively determined sentence for the offense
she committed.
In sum, on this record, we cannot conclude the trial court’s decision not to strike
the death allegation was “ ‘ “arbitrary, capricious, or patently absurd.” ’ ” (People v.
Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 390.) The court did not abuse its
discretion in declining to strike the allegation and concluding life without the possibility
of parole remained an appropriate sentence.
DISPOSITION
The judgment is affirmed.
DETJEN, J.
WE CONCUR:
LEVY, Acting P. J.
SANDHU, J.
29.
