Background
In 2001, a jury convicted Susan Diane Clevenger of first degree murder, kidnapping for ransom, and conspiracy to commit kidnapping for ransom, and found true a kidnapping special circumstance plus death allegations. She received three concurrent life-without-parole terms. In 2019, the Court of Appeal granted in part her habeas petition and vacated the special circumstance finding because the evidence did not show reckless indifference to human life; on remand she was resentenced on count 1 to 25 years to life while life-without-parole terms remained on counts 2 and 3.
Clevenger later sought recall and resentencing under Penal Code section 1172.6. After a 2021 hearing and a prior remand for resentencing on all counts, she asked the trial court under section 1385 to strike the death allegation and impose life with the possibility of parole, citing childhood trauma, prior victimization, youth, minimal record, and exemplary prison conduct. The trial court declined to strike the allegation and imposed life without parole on count 2, a stayed life-without-parole term on count 3, and a stayed five-year middle term on count 1.
The Court of Appeal affirmed in an opinion filed September 16, 2026. The October 7, 2026 document now at issue is an order modifying that opinion in four particulars and denying rehearing; it expressly states that there is no change in the judgment.
The Court’s Holding
The operative October 7, 2026 order does not itself re-decide the appeal. It modifies the September 16, 2026 opinion in four particulars—clarifying the defendant's request to consider exemplary prison conduct, expanding the countervailing-factor discussion, adding that the trial court reviewed rehabilitative letters and certificates, and revising the concluding mitigation sentence—and it denies the petition for rehearing. The order states plainly that there is no change in the judgment.
The underlying September 16 opinion, as modified, affirmed the judgment. It held that the trial court did not abuse its discretion under section 1385 in declining to strike the death allegation: although enumerated mitigating circumstances are entitled to great weight and strongly favor dismissal absent a public-safety danger, the court retained discretion to rely on substantial, credible countervailing evidence that Clevenger's major participation in the kidnapping for ransom resulting in death neutralized the mitigating weight.
The appellate court also rejected the claims that the trial court failed to consider the mitigation evidence or failed to make an individualized assessment, and it treated as harmless any failure to expressly address rule-based factors for counts 2 and 3 because those factors overlapped with the statutory factors the court considered and rejected.
Key Takeaways
- An order modifying an appellate opinion and denying rehearing leaves the judgment unchanged when the order expressly says there is no change in the judgment.
- The October 7, 2026 order is procedural in effect even though the appended opinion contains the developed section 1385 analysis.
- A trial court does not abuse its discretion under section 1385 when substantial, credible countervailing evidence of major participation in a dangerous felony neutralizes the great weight of mitigating circumstances.
- Assuming a defendant's mitigating evidence to be true and making an individualized culpability determination supports the conclusion that the court considered the defendant as an individual.
- Any error in not expressly addressing rule-based mitigating factors for counts 2 and 3 was harmless because those factors overlapped with statutory factors the court expressly considered and rejected.
Why It Matters
The order illustrates the difference between an opinion's substantive holding and a later modification order: the October 7 document changes wording but expressly preserves the judgment, while the September 16 opinion supplies the reasoning under People v. Walker about great weight, public safety, and countervailing factors.
Substantively, the case shows that even where mitigating circumstances such as childhood trauma and exemplary prison conduct are present, a sentencing court may still impose life without parole for kidnapping for ransom resulting in death when the defendant's extensive planning and facilitation supply substantial, credible countervailing evidence.
Read the full opinion (PDF) · Court docket