Opinion
E072566
09-06-2019
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY SCOTT KLINEFELTER, Defendant and Appellant.
Jeffrey Scott Klinefelter, in pro. per.; and Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF024370) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed. Jeffrey Scott Klinefelter, in pro. per.; and Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant, Jeffrey Scott Klinefelter, filed a petition for resentencing pursuant to Penal Code section 1170.95, which the court denied. After defendant filed a notice of appeal, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and identifying one potentially arguable issue: whether the court erred in denying defendant's petition for resentencing.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was offered the opportunity to file a personal supplemental brief, which he has done. Defendant raises eight issues: (1) whether the court erred in ruling on defendant's petition without allowing him to be present at the hearing on the petition; (2) whether defendant was deprived of effective assistance of counsel; (3) whether CALCRIM Nos. 520 and 521 are constitutionally vague and defective in defining the degrees of murder because they "are not a categorical match" of the federal definition of murder; (4) whether the superior court lacked jurisdiction to entertain defendant's case in the first instance; (5) whether section 1170.95 is void for vagueness; (6) whether insufficient evidence supported defendant's conviction; (7) whether defense counsel's failure to timely file a notice of appeal amounted to prejudicial ineffective assistance of counsel; and (8) whether, if defendant was not convicted under the natural and probable consequences doctrine, defendant was properly convicted of first degree murder. We affirm.
Issue 6 was not listed in defendant's "QUESTIONS PRESENTED" table, but is contained solely in the body of the brief. Issues 7 and 8 were contained in the "QUESTIONS PRESENTED" table of defendant's brief, but no argument on the issues is presented in the body of the brief.
I. FACTUAL AND PROCEDURAL BACKGROUND
We took judicial notice of the record in defendant's appeal of the original judgment in this case, case No. E048328. (Evid. Code, § 459.) We rely in large part on the recitation of facts in our opinion in that case for our factual background in this case. --------
On January 25, 2008, officers of the Riverside County Sheriff's Department responded to a suspicious circumstance call in Lake Elsinore. They arrived at the location and saw a fifth wheel trailer and a detached garage about 25 yards away from the trailer.
One officer noticed two bullet holes in the rear of the trailer; there was a lot of blood on the ground in front of the trailer and on the steps to the trailer. The officer entered the trailer and found blood and a pair of bloody blue jeans on the floor. The officers looked in the garage. Inside they found a minivan with a body in it. The victim had suffered a fatal gunshot wound to his chest.
The same morning, defendant had gone to his mother's residence. He had a shoebox with him. He told her he wanted to get rid of it. The two left in her car, and defendant disposed of the box in a dumpster at his mother's R.V. park. Afterward, he said he wanted to talk to her.
During their conversation, defendant told her that he had killed a man but did not tell her any details. Defendant's mother dropped him off at a coffee shop, where he said he was going to meet someone. Defendant's mother then drove to defendant's trailer. The police were there and asked her if she knew where they could find defendant. Directed by defendant's mother, the police recovered the shoebox discarded by defendant. It contained a pair of shoes. She then led them to defendant. He was wearing a new pair of clean, white tennis shoes. Defendant broke down and cried at the sight of his mother, who was sitting in the back seat of the police car. The officers arrested defendant.
The ensuing investigation led to defendant's girlfriend. She testified at trial that defendant had business dealings with the victim. For one of their deals, the victim was supposed to pay defendant $100 but only gave him $35. Defendant was not happy with the victim and called him a "tightwad." Behind the victim's back, defendant would say that the victim did not deserve to live. During the morning of January 25, 2008, defendant's girlfriend went to defendant's trailer. Defendant said, "[Victim's] last day." He then asked his girlfriend to go get some sodas. As she was leaving, he said, "Kill [the Victim]." She said, "No, you're not."
Just then, the victim walked into the trailer. Defendant's girlfriend left to get the drinks. As she drove back to defendant's property, her cell phone rang. It was defendant, who said, "I killed [the Victim]." Defendant's girlfriend drove up to defendant's van where she saw the victim's legs hanging out of the van.
She helped defendant push the victim's body into the van. He told her to take him to his mother's house and, on the way, he told her to stop at Walmart, where he bought a pair of shoes. Officers eventually arrested defendant's girlfriend; she pled guilty to being an accessory after the fact.
Approximately three days before the incident, defendant's girlfriend overheard defendant talking with his brother on the telephone. They were discussing ways to kill the victim. Defendant said he would shoot the victim, but his brother told him to hit the victim with a bat.
Defendant testified on his own behalf at trial. He said that on the day of the shooting, the victim came to his trailer and started demanding that defendant allow him to park used cars on his lot and help sell them. Defendant refused and told him to leave. The victim refused to leave. Defendant kept telling him to leave and then turned his back. He then felt a knife in his shoulder.
Defendant retrieved his gun, which he discharged out of the back of the trailer as a warning; he twice told the victim to leave and fired another warning shot. Defendant admitted at trial that he then shot the victim. Defendant and his girlfriend put the victim's body in the car and left the scene. The jury convicted defendant of first degree murder (§ 187, subd. (a)) and found true the allegation that he personally used a firearm in the commission of the offense and proximately caused the death of the victim (§§ 12022.53, subd. (d), 1192.7, subd. (c)(8)).
At the sentencing hearing on May 1, 2009, the court, which presided over defendant's trial, stated: "The overwhelming evidence in the case was that [defendant] planned and committed premeditated murder." "And so the Court believes the evidence, and the overwhelming evidence on the case, that it was deliberate. It was cold. It was calculated. It's clear from the physical evidence, it's clear from the testimony of other individuals, it's even clear from the defendant's own statements." The court sentenced defendant to 50 years to life in state prison.
On January 7, 2019, defendant filed a petition for resentencing pursuant to section 1170.95. Defendant contended he had been convicted under the felony-murder rule or natural and probable consequences doctrine as he was not the actual killer and did not aid or abet in the killing of the victim. The People filed a response to defendant's petition maintaining section 1170.95 was unconstitutional and, regardless, defendant was not entitled to relief because he was the actual killer; i.e., he had neither been convicted pursuant to the felony-murder rule nor the natural and probable consequences doctrine.
On March 15, 2019, the court held a hearing on the petition at which defendant was not present but at which he was represented by counsel. The court summarily denied the petition noting: "There were no felony murder instructions. There were no aider and abettor instructions given in this matter. [¶] As far as I can tell, it looks like it was a single-assailant fact pattern, but there were no aiding and abetting, no felony murder instructions."
II. DISCUSSION
A. Defendant's Lack of Presence at the Hearing
Defendant contends the court erred in denying him his constitutional right to be present at the hearing. Even if error, we find it harmless beyond a reasonable doubt.
"'Broadly stated, a criminal defendant has a right to be personally present at certain pretrial proceedings and at trial under various provisions of law, including the confrontation clause of the Sixth Amendment to the United States Constitution, the due process clause of the Fourteenth Amendment to the United States Constitution, section 15 of article I of the California Constitution, and sections 977 and 1043.' [Citation.] That right extends to sentencing and resentencing proceedings, including resentencing under section 1170.18. [Citation.] A criminal defendant's right to attend critical proceedings against him is subject to recognized limitations. '[I]t is well established,' for example, that there is no such 'constitutional or statutory right to be present to address purely legal questions or where [the defendant's] "presence would not contribute to the fairness of the proceeding."' [Citation.]" (People v. Simms (2018) 23 Cal.App.5th 987, 996.) The violation of a right to be present "may be deemed harmless only if we can conclude beyond a reasonable doubt that the deprivation did not affect the outcome of the proceeding. [Citation.]" (Id. at p. 998.)
Pursuant to section 1170.95, subdivision (a), "[a] person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced . . . ." Section 1170.95 does not explicitly entitle a defendant to be present at a hearing on a petition filed pursuant to it. No case law has addressed the issue of a defendant's entitlement to be present at a section 1170.95 hearing.
Assuming arguendo that defendant was entitled to be present at the hearing, we hold that any error was harmless beyond a reasonable doubt. Here, defendant was convicted of first degree murder as the actual and only killer of the victim. Defendant himself testified he killed defendant. The court gave no felony murder or aider and abettor instructions to the jury. Thus, as a purely legal matter, defendant was not entitled to relief pursuant to section 1170.95. His presence at the hearing would have made absolutely no difference. Therefore, any error in holding the hearing outside of defendant's presence was harmless beyond a reasonable doubt. B. Ineffective Assistance of Counsel
Defendant contends his counsel provided constitutionally ineffective assistance of counsel at the hearing on his section 1170.95 petition. In order to demonstrate prejudicial ineffective assistance of counsel, a defendant must show deficient representation and prejudice from counsel's performance. (People v. Vines (2011) 51 Cal.4th 830, 875-876.) As discussed above, defendant was not statutorily eligible for relief pursuant to section 1170.95. Thus, defense counsel did not render deficient representation and defendant's ineffective assistance of counsel claim fails. C. CALCRIM Nos. 520 and 521
Defendant contends CALCRIM Nos. 520 and 521 are constitutionally vague and defective in defining the degrees of murder. "[W]here a criminal defendant could have raised an issue in a prior appeal, the appellate court need not entertain the issue in a subsequent appeal absent a showing of justification for the delay." (People v. Senior (1995) 33 Cal.App.4th 531, 538; accord, People v. Jordan (2018) 21 Cal.App.5th 1136, 1143.) Here, defendant could and should have raised this issue in his appeal from the original judgment. Thus, defendant had forfeited the issue. D. Superior Court Jurisdiction
Defendant contends the superior court lacked subject matter jurisdiction to hear his case in the first instance "because the prosecutor failed to state the cause of action, failing to provide the court by what authority/subject matter jurisdiction the court is to operate." We disagree.
"The subject matter jurisdiction of a California court presiding over a criminal prosecution is predicated on the offense. 'To constitute jurisdiction in a criminal case there must be two elements, namely, jurisdiction of the person, and jurisdiction of the subject matter or, as it is sometimes called, of the offense.' [Citation.] 'The most important is jurisdiction of the subject matter. "No person can be punished for a public offense, except upon a legal conviction in a court having jurisdiction thereof." [Citation.] In other words, the court in a criminal trial, like the court in a civil proceeding, must have jurisdiction of the subject matter (in criminal cases, the offense).' [Citation.]" (People v. Vasilyan (2009) 174 Cal.App.4th 443, 449.) "Jurisdiction over the offense or subject matter is acquired when an action or proceeding is instituted by the filing of a complaint in a court in the jurisdictional territory, competent to hear and determine the particular cause." (Burns v. Municipal Court of Los Angeles Judicial Dist. (1961) 195 Cal.App.2d 596, 599.)
Here, the People filed a complaint on January 30, 2008, and an information on May 27, 2008, alleging defendant had committed deliberate, premeditated murder. The jury found that defendant had committed first degree murder. Thus, the court had jurisdiction over the specified, alleged offense of first degree murder. E. Void for Vagueness
Defendant contends that section 1170.95 is void for vagueness. "'[A] claim that a law is unconstitutionally vague can succeed only where the litigant demonstrates, not that it affects a substantial number of others, but that the law is vague as to her or "impermissibly vague in all of its applications." [Citations.]' [Citation.]" (People ex rel. Brown v. iMergent, Inc. (2009) 170 Cal.App.4th 333, 340.)
Defendant has failed to establish how the law is vague as to him. Defendant asserts "it is clear that Senate [B]ill [No.] . . . 1437 and California Penal [C]ode section 1170.95 [are] void on [their] face . . . ." If true, then defendant has nothing of which to complain since the court denied his petition. Indeed, defendant would seem to have invited any error by filing his petition pursuant to section 1170.95. Thus, defendant cannot establish that he is aggrieved by any alleged vagueness of section 1170.95. F. Insufficient Evidence Supported Defendant's Conviction
Defendant contends insufficient evidence supports his conviction. "[W]here a criminal defendant could have raised an issue in a prior appeal, the appellate court need not entertain the issue in a subsequent appeal absent a showing of justification for the delay." (People v. Senior, supra, 33 Cal.App.4th at p. 538; accord, People v. Jordan, supra, 21 Cal.App.5th at p. 1143.) Here, defendant could and should have raised this issue in his appeal from the original judgment. Thus, defendant had forfeited the issue. G. Ineffective Assistance of Counsel
Defendant contends his counsel provided constitutionally ineffective assistance of counsel by failing to timely file a notice of appeal. In order to demonstrate prejudicial ineffective assistance of counsel, a defendant must show deficient representation and prejudice from counsel's performance. (People v. Vines, supra, 51 Cal.4th at pp. 875-876.) With respect to the instant appeal, defendant himself filed the notice of appeal on April 16, 2019, from a judgment filed on March 15, 2019, which is timely. With respect to the appeal from the original judgment, the notice of appeal was filed on May 6, 2009, from a judgment filed on March 23, 2009, which is likewise timely. Thus, defendant has failed to demonstrate deficient representation by counsel. H. Degree of Murder for Which Defendant Was Convicted
Defendant appears to suggest that he could not have been convicted for first degree murder unless it was pursuant to the natural and probable consequences doctrine. Defendant is wrong.
A direct perpetrator may not be convicted of first degree murder under the natural and probable consequences doctrine. (People v. Chiu (2014) 59 Cal.4th 155, 166.) "[A] defendant's culpability for aiding and abetting a target crime that would naturally, probably, and foreseeably result in a murder under the natural and probable consequences doctrine" is punishable as second degree murder. (Ibid.) Thus, since defendant was the direct perpetrator of the murder, defendant could not have been convicted under the natural and probable consequences doctrine. Instead, the jury convicted defendant of first degree murder. Thus, defendant was not entitled to relief pursuant to section 1170.95 and the court properly denied his petition.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.