Opinion
D069364
01-31-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ANTHONY HILL, Defendant and Appellant.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Elizabeth Miller, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD253234) APPEAL from a judgment of the Superior Court of San Diego County, Frederick L. Link, Judge. Affirmed as modified. Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
Joseph Anthony Hill appeals from the judgment of conviction of first degree murder (count 1), victim Sean O. (Pen. Code, § 187, subd. (a)); first degree attempted murder (count 2), victim Travis B. (§§ 187, subd. (a), 664); and possession of a firearm by a felon (count 3) (§ 29800, subd. (a)(1)). The jury also determined that with respect to counts 1 and 2, Hill personally used a handgun within the meaning of section 12022.5, subdivision (a), personally used a semiautomatic handgun within the meaning of section 12022.53, subdivision (b), personally discharged a semiautomatic handgun within the meaning of section 12022.53, subdivision (c), and personally discharged a semiautomatic handgun and proximately caused great bodily injury or death within the meaning of section 12022.53, subdivision (d).
California Rules of Court, rule 8.90(b) requires appellate courts to "consider referring to" certain individuals "by first name and last initial" to protect those individuals' privacy. Accordingly, we refer to victims and witnesses in this case by their first name and last initial, and thereafter by first name only. Our use of first names is not intended as a sign of disrespect.
All statutory references are to the Penal Code unless otherwise specified.
In separate proceedings before only the court after the jury returned these verdicts, Hill admitted he had served five prior prison terms within the meaning of section 667.5, subdivision (b). He also admitted two prior serious felony convictions within the meaning of sections 667, subdivision (a)(1), 668, and 1192.7, subdivision (c), which were each prior strike convictions. Hill also admitted the instant offenses were committed while he was on bail within the meaning of section 12022.1, subdivision (b).
At the sentencing hearing, the prosecutor stated Hill showed "little remorse . . . for these crimes . . . ." Hill immediately corrected him, stating, "No remorse. Not little. No remorse." When the murder victim's brother asked the court to impose the "maximum sentence," Hill replied, "Fuck you."
The court sentenced Hill to a total prison term of 30 years plus 174 years to life.
Hill contends the judgment should be reversed because the court improperly admitted evidence of two recorded statements Hill made while incarcerated and awaiting trial. He contends these statements should have been excluded under Evidence Code section 352, and the erroneous admission of this evidence violated due process.
Hill also contends the court committed three errors in sentencing him on count 2 by: (1) using a nine-year instead of seven-year term for premeditated attempted murder; (2) using the prison prior and bail enhancements in calculating the minimum indeterminate term; and (3) imposing prison prior and bail enhancements on the determinate term, which the court had already imposed on count 1.
The Attorney General concedes that the indeterminate sentence on count 2 should be modified to impose a 72-year-to-life indeterminate sentence, rather than the 74 years to life imposed by the trial court. We modify the judgment in this respect only, such that Hill's total sentence is 30 years plus 172 years to life. We reject Hill's remaining contentions, and affirm the judgment as so modified.
FACTUAL BACKGROUND
A. The Murder of Sean O.
Testifying in his own defense, Hill admitted he is the past "president" of the San Diego Skinheads. He has a skinhead tattoo on his head. Hill also testified that in 1988 he was convicted of robbery with a knife, in 2006 he assaulted a jail inmate, and in 2014 he pleaded guilty to assault by force likely to produce great bodily injury.
Skinhead is "a usu[ally] white male belonging to any of various sometimes violent youth gangs whose members have close-shaven hair and often espouse white-supremacist beliefs." (Merriam-Webster's Collegiate Dict. (11th ed. 2006) p. 1168.)
In bifurcated proceedings conducted after the jury returned its verdicts, Hill admitted he was on bail when the instant offenses were committed, within the meaning of section 12022.1, subdivision (b). He also admitted prior prison terms for robbery in 1988, grand theft automobile in 1995, possession for sale of a controlled substance and transportation of a controlled substance in 2003 and 2004, possession for sale of a controlled substance in 2006, and assault with a deadly weapon in 2007. Hill also admitted two serious felony priors and two strike priors consisting of robbery in 1988 and in 2007.
Viewing the evidence in accordance with the usual rules on appeal (People v. Zamudio (2008) 43 Cal.4th 327, 357), on December 16, 2013, while Hill was in custody for driving under the influence, he spoke with his girlfriend, Marla C., on the telephone. Marla said Hill's friend, Sean, had called her a "loser." Hill replied that Sean was a "fuckin' chump" and a "[f]uckin' piece of shit" and said, "I hope he's dead. I'll go see him when I get out."
This is not one of the recorded telephone calls that Hill contends was improperly received in evidence.
On or about December 20, 2013, when Hill was released on bail, a GPS tracking device was attached to his ankle. About a week later, on December 28, Hill and Marla went to Travis's room at the Biltmore Hotel to sell Travis methamphetamine. Travis did not pay Hill for the drugs, but promised to pay $200 the next day. Waving a handgun in front of Travis, Hill told him, "Don't fuck me over."
In the afternoon of December 29, 2013, Hill and Marla were at a bar in Ocean Beach, drinking and watching a football game on television. According to one of the bartenders there, Hill was "very rambunctious and agitated." Hill shouted obscenities at customers, was pacing, doing push-ups against the guardrail, and "just seemed aggressive and agitated."
Paul S., who was friends with Marla and Hill, was also at the bar. Hill asked Paul for Travis's telephone number, and then called Travis, stating, "You better have my money. . . . [¶] I'll be there at 5. You better be ready for me. [¶] I hope that motherfucker [Sean] is there with you also." Hill then turned to Marla and said, "Damn, Marla, I really liked that kid."
Hill and Marla left the bar after about an hour. Paul returned to his home, where Travis was waiting for him. Paul testified Travis was "scared to death." Travis said he owed Hill money and "was scared that he was going to get beat up and pistol whipped." When Paul told Travis he did not think Hill would shoot him, Travis replied, "You don't know him like I know him."
Hill is five feet 11 inches tall, 190 pounds, with a muscular build.
About 4:55 p.m. the same day (December 29), Hill and Marla arrived at Sean's house, where Sean was with his girlfriend, Amy L. Sean answered the door and asked Hill and Marla to leave. Although Hill said he would leave, he instead followed Sean and Amy to the backyard.
Meanwhile, one of Sean's friends, Joshua C., was also in the backyard, renovating the garage there. Joshua had known Sean for 15 years and Sean was one of his best friends. In between knocking down walls in the garage, Joshua was smoking marijuana and methamphetamine.
After Hill followed Sean to the backyard, Joshua heard arguing and loud voices. He exited the garage to see what was happening. He knew Hill "on and off a little bit for like 10, 12 years," so he "knew exactly who it was."
Hill believed Sean had recently "disrespected" Marla. Hill testified he was "in absolute love" with Marla. In fact, he had her name tattooed on his neck.
Hill was angry with Sean and kept after Sean, stating, "You're disrespecting my bitch." Sean tried to walk away, but Hill followed closely, just a few feet away and continued yelling, "Are you disrespecting my bitch?" At one point, Hill was over Sean's shoulder, yelling right into his ear.
Sean turned around, put his hands up by his chest, and said, "What's up, man?" Sean did not move towards Hill, did not have anything in his hands, never kicked at Hill, and never threw a punch at Hill. Joshua testified that Sean "didn't even take any aggression towards him. He just wanted to say, man, Joe, shut up, or, you know, what the fuck?"
Joshua testified that Sean put his hands up, "[j]ust, you know, like, man, what do you want to do, man? Just, you know, fuck."
Hill pulled a gun out of a holster and, standing about five feet away from Sean, pointed it at Sean and pulled the trigger—but the gun did not fire. Hill did something to the gun and then fired once at Sean's legs. That shot missed Sean, but Joshua, who was about five feet behind Sean, was struck in the leg by fragments of the ricocheting bullet.
Hill then pointed the gun at Sean's torso and shot again. This round landed. Sean said, "You shot me, man. What the fuck?"
Joshua, Sean, and Amy ran to the front of the house. Joshua and Amy were afraid Hill would shoot them next. Sean was screaming.
Joshua put Sean into his car and drove to a nearby hospital. Hill and Marla sped away in Marla's car.
Arriving at the hospital, Sean ran to the emergency room and collapsed on the floor. The bullet had entered Sean's rib cage, fractured his sixth rib, and then caused extensive damage to his liver. By the time Sean arrived at the hospital, he had lost so much blood he could not be resuscitated, and he died from the gunshot wound.
Meanwhile, Marla drove herself and Hill to Steven B.'s house in San Diego. Marla gave Steven methamphetamine in exchange for letting them hide Marla's car in his garage. Getting out of her car, Marla slammed the car door on Hill's finger. Steven testified there was "blood all over the place" and Hill was screaming in pain.
Marla told Steven to drive herself and Hill to a tattoo parlor in El Cajon. En route there, Steven saw Hill had a semiautomatic handgun. While driving to the tattoo parlor, Hill telephoned his mother and said, "I'm sorry and . . . I'm going to be in trouble no matter what. No way out." At the tattoo parlor, someone stitched up Hill's finger, and Marla and Hill left in a borrowed car.
B. Travis's Attempted Murder
Between 7:00 p.m. and 8:00 p.m. the same day (December 29, 2013), Travis had returned to his room at the Biltmore Hotel in La Jolla. He asked other hotel residents to loan him money, but could only raise five dollars. At about 8:20 p.m., the door to Travis's room was kicked open, and Travis was shot in the abdomen.
Police received a call reporting Travis's shooting at 8:23 p.m. The GPS tracker attached to Hill's ankle showed that at 8:21 p.m., Hill was in the alley to the south of the Biltmore hotel, and he drove away at 8:24 p.m. Police found a nine-millimeter bullet casing in Travis's room.
Like Hill, Travis has a skinhead tattoo on his head. He knew Hill for several years, and at one point was his cellmate in jail.
Before the ambulance arrived, Travis told police he did not know who shot him. Later at the hospital, Travis claimed the police shot him because he was suing the City of San Diego for malicious prosecution in another case. In a subsequent hospital interview with a detective, Travis said he feared retaliation for his sister and his mother if the investigation into his shooting went forward. At trial, Travis testified Joshua shot him because in the past Travis had sex with Joshua's girlfriend. Joshua denied this, testifying he had nothing to do with Travis's shooting and had no reason to dislike him.
Travis was on life support for 26 days, hospitalized for over five months, and survived.
C. Hill's Arrest
On December 30, 2013, police tracked Hill by his GPS bracelet and planned to arrest him for shooting Sean and Travis. When Hill entered his car, a black Mustang, one police officer drove and stopped immediately behind Hill's car and another officer positioned his car to pin it against the driver's side of Hill's Mustang. A third officer drove right behind these two.
Police yelled, "Police, show us your hands. Show us your hands." Police yelled at Hill to "[g]et out of the car."
Hill did not comply, but instead put his car in gear and revved the engine. Police shot Hill twice with a taser, but the taser was ineffective. As Hill was about to drive away, an officer saw Hill reach below the driver's seat and then reach across and under the passenger seat.
Several police officers shot at Hill as he was fleeing. Hill drove only a short distance before crashing into the back of a parked truck. As police were yelling to Hill "show us your hands," an officer saw Hill reaching over and looking for something in his car. Another officer saw Hill "digging for something. You could see his head down. He was in the passenger's portion of the—with his head down in the passenger portion of the vehicle, and it appeared like he was looking for something." At that point, when Hill raised his head "fast and high," police officers fired additional rounds. Hill surrendered.
After placing Hill in custody, a police officer opened the passenger side door of Hill's car. A loaded nine-millimeter Beretta handgun, apparently lodged between the passenger door and seat, fell to the ground.
D. Forensic Evidence
There was undisputed expert testimony that bullet casings police found in Sean's backyard and another bullet casing found in Travis's hotel room were fired from the gun found in Hill's car. Moreover, the "predominant DNA" found on this gun was Hill's. The probability of randomly selecting someone in the Caucasian population who would match this predominant DNA is 1 in 72 quintillion. Hill's DNA was also found on the gun's ammunition clip or magazine. Marla's DNA was also found on this gun. Sean's DNA was not found on this gun.
A quintillion is a number followed by 18 zeros.
The forensic evidence is particularly important in this case because the percipient witnesses were all impeached: As a juvenile, Joshua was found to have committed burglary and robbery, and as an adult he had convictions for vehicle theft and assault with a deadly weapon. Paul has prior convictions for manufacturing hash oil and possessing methamphetamine with the intent to sell it. Amy has convictions for perjury, burglary, grand theft automobile, identity theft, transportation of a controlled substance with the intent to sell, and possession of methamphetamine. Travis has convictions for burglary, receipt of stolen property, and robbery. At one point, Marla was a defendant in this case. She plead guilty to an accessory after the fact of Sean's murder, and assault with a deadly weapon as to Travis's attempted murder. She testified at Hill's trial under a grant of use and derivative use immunity. Marla has prior convictions for selling and distributing drugs. The jury was also informed that Sean had prior felony convictions for manufacturing a fake driver's license, assault with a deadly weapon, possession of methamphetamine with the intent to sell, and evading police with reckless driving.
E. In Custody Recorded Calls
On January 6, 2014, seven days after his arrest, Hill telephoned a friend, Jennifer G., from jail. During the call, which police recorded, Hill said, "That's my problem. I let all that fuckin' shit bother me you know. [¶] That's probably why I'm in this spot, I'm in this spot I am in right now. I let everything people say's, somebody says something to me or fuckin' does something I let it bother me you know."
On January 16, 2014, police recorded a jail conversation between Hill and his mother. Hill complained to his mother that Marla was "acting like I fuckin' killed the fuckin', the—the pastor at the church or some—."
F. Defense Case
Hill's version of events was very different. He testified he owed Sean $1,600 for a quarter pound of methamphetamine. Hill testified that when he paid Sean only $1,000, an argument ensued over the rest of the money and Sean "pulled a gun on me." Hill testified, "I grabbed the gun" and the gun "went off" firing a round that struck Joshua's leg. Hill stated Sean then "charged" him and he shot Sean once in the chest in self-defense. Hill testified he threw the gun in some bushes and left Sean's house. Hill claimed that Joshua retrieved the gun from the bushes and kept it.
Hill testified that later that evening, he went to the Biltmore Hotel to sell $500 of drugs to someone named Chuck. While there, he heard gunshots, saw Joshua running down the alley, and then Joshua got in Hill's car with the gun.
Hill testified that he brought Joshua home and later gave him the keys to Hill's car and told Joshua to take the car and drop it off at a mechanic's for repair.
Hill denied shooting Travis, testifying Travis did not owe him money, and in any event, he would not have shot him over $200.
Hill explained his DNA was on the gun's magazine because "a couple of weeks prior" Sean asked him to buy him a clip "and I bought the clip for 20-some bucks and a thing of reload ammunition for the gun."
Asked to explain the December 16, 2013 recorded telephone call, when Hill said he hoped Sean was dead, Hill testified he "wouldn't say that" because Sean was "my friend, you know." He testified that he had "no idea" what he meant in the other recorded call, after Sean's death, when he said Marla was "acting like I killed the pastor."
DISCUSSION
I. ADMISSIBILITY OF JAIL CONVERSATIONS
A. Factual Background
The jury heard recordings of three of Hill's conversations made in jail. On appeal, Hill challenges the admissibility of only two of these, which Hill made after his arrest in this case: (1) the January 6, 2014 telephone call where he told a friend, "That's my problem, I let all that fuckin' shit bother me you know. [¶] That's probably why I'm in this spot[;] I'm in this spot I am in right now. I let everything people say's, somebody says something to me or fuckin' does something I let it bother me you know" ; and (2) the January 16, 2014 jail visit where he told his mother that Marla was "acting like I fuckin' killed the fuckin', the—the pastor at the church or some—."
Hill contends the trial court should have excluded these statements under Evidence Code section 352. More specifically, he contends his statements were ambiguous and taken out of context. Hill asserts the evidence was "undeniably prejudicial" because the jail recordings emphasized his "custodial status." He also contends the asserted error is prejudicial because during deliberations, the jury requested a playback of Hill's recorded statements, and approximately 40 minutes after hearing this evidence returned guilty verdicts.
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
However, at trial, Hill's attorney did not object to either of these recorded statements under Evidence Code section 352, nor did he generally argue the risk of prejudice outweighed the relevance of this proffered evidence. Rather, in pretrial motions, Hill's attorney objected to the recorded conversations only on the grounds of hearsay and relevancy, stating, "Our position is that the phone calls are not relevant, are hearsay." Moreover, when the challenged evidence was offered at trial, counsel made no objection.
The Attorney General contends, and we agree, Hill forfeited his argument under Evidence Code section 352 by not making an Evidence Code section 352 objection to this evidence at trial. Issues regarding the admissibility of evidence are generally not reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground urged on appeal. (People v. Alvarez (1996) 14 Cal.4th 155, 186; see also Evid. Code, § 353.) The purpose of this rule is to encourage a defendant to bring any errors to the trial court's attention so the court may correct or avoid the errors and provide the defendant with a fair trial. (See People v. Marchand (2002) 98 Cal.App.4th 1056, 1060.) The objection requirement is necessary in criminal cases because a "contrary rule would deprive the People of the opportunity to cure the defect at trial and would 'permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal.' " (People v. Rogers (1978) 21 Cal.3d 542, 548.)
Although Hill's attorney objected to these recordings on relevancy grounds, a relevancy objection alone will not preserve a challenge under Evidence Code section 352. (People v. Barnett (1998) 17 Cal.4th 1044, 1130.) Here, Hill's attorney did object to these recorded statements on relevancy and hearsay grounds; however, at no time did he assert an Evidence Code section 352 objection or argue that the risk of prejudice outweighed the relevance of the proffered evidence. Accordingly, Hill's claim of error is forfeited on appeal. " ' "A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct." ' " (People v. Romo (2016) 248 Cal.App.4th 682, 695.)
In any event, even if the issue was properly preserved for appeal, Hill's assertion that the jail conversations were "undeniably prejudicial in that they emphasized Mr. Hill's custodial status" is untenable. To begin with, the jury already knew Hill committed these crimes while he was out on bail—Hill was wearing a GPS bracelet and there was evidence police tracked him to both crime scenes with it. Second, the jury knew Hill had an extensive criminal history, which included custody. Hill testified that in 1988 he was convicted of robbery with a knife, in 2006 he assaulted a jail inmate, and in 2014 he pleaded guilty to assault by force likely to produce great bodily injury. Moreover, given the evidence existing at the time of his arrest—not the least of which is that the murder weapon literally fell out of Hill's car when he was arrested after attempting to flee—it is nearly inconceivable to believe Hill would not have been in custody at the time of these conversations, both of which occurred within two weeks of his arrest.
C. Due Process
Hill also contends the admission of recordings from his two jail conversations violated his constitutional right to due process and, thus, that the Chapman standard of prejudice applies. (See Chapman v. California (1967) 386 U.S. 18, 24.) He contends his recorded statements were "ambiguous" and "taken out of context and unfairly suggested that he had made admissions to the charged crimes."
We disagree; the admission of these two recorded statements did not constitute a due process violation. "[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. (People v. Partida (2005) 37 Cal.4th 428, 439.) " 'Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must "be of such quality as necessarily prevents a fair trial." [Citations.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.' " (People v. Hunt (2011) 196 Cal.App.4th 811, 817.)
Here, even assuming, for the sake of argument, that the court erroneously concluded the evidence was relevant, Hill has not satisfied this high constitutional standard. From Hill's statement, "I let all that fuckin' shit bother me you know. [¶] That's probably why I'm in this spot[;] I'm in this spot I am in right now. I let everything people say's, somebody says something to me or fuckin' does something I let it bother me you know"—the jury could permissibly infer Hill was acknowledging that the disrespect Sean showed towards Marla is what drove him to shoot Sean. From Hill's other recorded statement, that Marla was "acting like I fuckin' killed the fuckin', the—the pastor at the church"—the jury could permissibly infer Hill was essentially saying, I killed Sean, but who cares, he was no good.
Moreover, the two recorded statements were not a significant part of the prosecution's case, and they were far from the primary evidence of Hill's guilt. In a recorded statement about two weeks before Sean's murder—evidence Hill does not challenge on appeal—Hill threatened to kill Sean, stating "I hope he's dead. I'll go see him when I get out." Bullet casings found in Sean's backyard and another bullet casing in Travis' apartment were fired from the gun found in Hill's car. Solidly refuting Hill's testimony that he grabbed the gun away from Sean and killed him in self-defense, Sean's DNA was not found on the gun; however, Hill's DNA was on the gun and on the gun's magazine. In rebuttal, the prosecution also showed that Marla's DNA was found on the murder weapon. This evidence—unrefuted at trial—is inconsistent with Hill's testimony that after taking the gun away from Sean and shooting him in self-defense, he tossed the gun in the bushes, where Joshua retrieved it and later placed it in Sean's car.
Only on "rare and unusual occasions" will "admission of evidence . . . violate[ ] federal due process and render[ ] the defendant's trial fundamentally unfair." (See People v. Albarran (2007) 149 Cal.App.4th 214, 232.) For the reasons just discussed, this is not that case. Hill's recorded jail conversations merely corroborated other evidence, and the undisputed forensic evidence supporting Hill's guilt was overwhelming.
II. SENTENCING ISSUES
A. Sentencing
Hill, who admitted two strike priors was sentenced under the "Three Strikes" law. (§§ 667, subds. (b)-(i), 1170.12.) The court sentenced Hill to a total prison term of 30 years plus 174 years to life, comprised as follows:
On count 1, the court sentenced Hill to a term of 75 years to life for first degree murder, plus a 25-year-to-life term for the gun allegation true finding, two years for the bail enhancement, 10 years for the serious felony convictions, and three years for the prior prison terms he served. Thus, the total sentence for count 1 was 15 years plus 100 years to life. Hill does not challenge this part of the sentence on appeal.
On count 2, using the formula in section 667, subdivision (e)(2)(a)(iii), the court imposed: the upper term of nine years for Hill's conviction for attempted premediated murder (§§ 664, 187 subd. (a) & 189); plus 25 years to life for the gun allegation true finding (§ 12022.53, subd. (d)); plus two years for the on-bail true finding (§ 12022.1, subd. (b)); plus five years each for Hill's two serious felony true findings (§ 667, subd. (a)); plus one year for each of his five prison priors (§ 667, subd. (b)), with two of those one-year periods stayed, for a total term of 49 years to life.
On count 2, an additional 25 years to life was added for the gun allegation true finding (§ 12022.53, subd. (d)); plus two years for the on-bail true finding (§ 12022.1, subd. (b)); plus five years each for Hill's two serious felony true findings (§ 667, subd. (a)); plus one year for each of his five prison priors (§ 667, subd. (b)), with two of those one-year periods stayed.
Thus, the total sentence for count 2 was a consecutive term of 15 years plus 74 years to life, and the total sentence on counts 1 and 2 was therefore 30 years plus 174 years to life.
The sentence on count 3, possession of a firearm by a felon, was stayed under section 654.
B. The Court Improperly Calculated the Minimum Term of the Indeterminate Sentence for Premediated Attempted Murder
Under the Three Strikes law, where, as here, a defendant has two or more prior qualifying felony convictions, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:
Option 1: "Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior serious and/or violent felony convictions." (§ 667, subd. (e)(2)(A)(i).)
Option 2: "Imprisonment in the state prison for 25 years." (§ 667, subd. (e)(2)(A)(ii).)
Option 3: "The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2 [a determinate sentence for a specific number of years], or any period prescribed by section 190 [punishment for various degrees of murder] or 3046 [person imprisoned for life must serve at least seven years before parole]." (§ 667, subd. (e)(2)(A)(iii).)
When calculating the sentence under Option 3, "the court calculates the sentence using normal determinate and indeterminate sentencing procedures." (Couzens, Bigelow & Prickett, Sentencing Cal. Crimes, (The Rutter Group 2016) § 20:39, p. 20-64.) Here, the court sentenced Hill for count 2 under Option 3, and began that calculation by using the upper term of nine years for attempted murder as provided in section 664, subdivision (a).
As discussed post, a third strike sentence utilizing the minimum parole period in section 3046 must also include any applicable conduct and status enhancements. (People v. Miranda (2011) 192 Cal.App.4th 398, 414-417 (Miranda).)
Section 664, subdivision (a) states in part: "If the crime attempted is any other one in which the maximum sentence is life imprisonment or death, the person guilty of the attempt shall be punished by imprisonment in the state prison for five, seven, or nine years."
However, absent the Three Strikes law, the sentence for the offense Hill was convicted of in count 2—willful, deliberate and premeditated attempted murder—is not nine years; rather, it is life with the possibility of parole, with a seven-year period of parole eligibility. (§§ 664, subd. (a), 3046, subd. (a)(1).) Although section 3046 provides a minimum period of parole ineligibility, rather than a sentence, that period of ineligibility is treated as a minimum term for purposes of calculating a third strike sentence for attempted premediated murder. (People v. Jefferson (1999) 21 Cal.4th 86, 96 ["[T]he minimum term for a defendant found guilty of attempted premeditated murder is found not in section 664 but in section 3046. The parole ineligibility period set by section 3046 is a minimum term . . . ."].)
Section 664, subdivision (a) also provides in part: "[I]f the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole."
Section 3046, subdivision (a)(1) provides: "An inmate imprisoned under a life sentence shall not be paroled until he or she has served the greater of the following: [¶] (1) A term of at least seven calendar years."
Hill contends his sentence on count 2 must be modified because the court miscalculated the minimum term of the indeterminate sentence by selecting the nine-year determinate term for unpremeditated attempted murder (as provided in § 667) instead of the seven-year period of parole ineligibility under section 3046 for premediated attempted murder.
The Attorney General concedes this sentencing error, stating in its brief, "[A]s [Hill] maintains, the trial court erred by selecting a term of nine years to calculate the minimum term, because the sentence otherwise applicable to attempted premeditated murder is not a determinate triad of five, seven, or nine years, but rather an indeterminate term with parole eligibility of seven years."
Accordingly, on count 2 the minimum term of the indeterminate sentence should have been calculated as 72 years as opposed to the 74 years the trial court imposed.
The sentencing brief the prosecution filed in the trial court correctly indicated the court should use seven years, not nine years. However, the court instead followed the recommendation in the probation report, which erroneously recommended nine years.
C. The Court Correctly Added the Prison Prior and Bail Enhancement in Calculating the Minimum Term of the Indeterminate Sentence on Count 2
Hill contends the one-year enhancement for a prior prison term under section 667.5, subdivision (b), and the two-year enhancement for committing the instant offenses while on bail (§ 12022.1, subd. (b)) should not have been added to the calculation of the minimum term of the indeterminate sentence for count 2. He argues that because these enhancements are not mandatory, they do not constitute " 'any other provision of law that establishes a minimum term' " within the meaning of section 3046.
However, Hill concedes that in Miranda, supra, 192 Cal.App.4th at page 417, the Second District, Division Eight held such enhancements should be added in calculating the minimum term of the indeterminate sentence for a three strikes offender under the Three Strikes law. Hill contends, however, that Miranda should not be followed because that court failed to recognize the distinction between mandatory and nonmandatory enhancements.
We conclude the reasoning in Miranda is persuasive and discern no principled reason to disagree with that court's conclusion. The court in Miranda, supra, 192 Cal.App.4th at pages 414-415 holds that a third strike sentence utilizing the minimum parole period in section 3046 also must include any applicable conduct and status enhancements. (See discussion in Couzens & Bigelow, Cal. Three Strikes Sentencing, (The Rutter Group 2016) § 7:2, p. 7-32.) Miranda's holding is based in part on the California Supreme Court's decision in People v. Jenkins (1995) 10 Cal.4th 234, 251. As the Miranda court notes, "Jenkins explains that, when section . . . 3046 is used in the calculation under the third alternative of section 667.7, the calculation must also include applicable enhancements." (Miranda, at p. 417.)
D. The Court Correctly Included the Prior Prison and On-Bail Enhancements to the Determinate Sentence in Count 2
In calculating the 15-year determinate component of the sentence on count 2, the court included the same prison prior and on-bail enhancements that it used in sentencing Hill on count 1. Citing People v. Augborne (2002) 104 Cal.App.4th 362 (Augborne) and People v. Smith (1992) 10 Cal.App.4th 178 (Smith), Hill contends these status enhancements may only be imposed once per case, not per count.
However, Augborne and Smith do not involve a case like Hill's, i.e., third strike sentencing under the Three Strikes law. (Augborne, supra, 104 Cal.App.4th at p. 365; Smith, supra, 10 Cal.App.4th at p. 180.) In People v. Williams (2004) 34 Cal.4th 397 (Williams), the California Supreme Court held that third strike sentencing under the Three Strikes law involves different policies regarding status enhancements, and therefore different rules apply:
"The Three Strikes law, unlike section 1170.1, does not draw any distinction between status enhancements, based on the defendant's record, and enhancements based on the circumstances of the current offenses, and the Three Strikes law generally discloses an intent to use the fact of recidivism to separately increase the sentence
imposed for each new offense." (Italics added.) (Williams, at pp. 404-405.)
Williams, supra, 45 Cal.4th at page 404 holds that in cases where multiple indeterminate terms are imposed under the Three Strikes law, all section 667, subdivision (a) five-year serious felony enhancements must be imposed on every count. Similarly here, under Williams, the court properly added the two-year on-bail enhancement (§ 12022.1, subd. (b)), and the prior prison enhancements (§ 667.5, subd. (b)) when sentencing count 2 in this case.
DISPOSITION
Hill's sentence is modified as follows: The minimum indeterminate sentence on count 2, attempted first degree murder, is amended from 49 years to life, to 47 years to life, such that Hill's modified sentence on count 2 is 15 years plus 72 years to life.
In all other respects, the judgment is affirmed, such that Hill's total sentence in this case is 30 years plus 172 years to life.
The trial court is directed to prepare an amended abstract of judgment reflecting the modified sentence and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
/s/_________
NARES, J. WE CONCUR: /s/_________
McCONNELL, P. J. /s/_________
IRION, J.