People v. Hill CA2/3 ( 2020 )

Filed 11/25/20 P. v. Hill CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B305205
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. KA047334
v.
RODRICK ONEA HILL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, David C. Brougham, Judge. Dismissed.
Richard B. Lennon, under appointment by the Court
of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
On January 31, 1991, defendant and appellant Rodrick
Onea Hill pleaded guilty to attempted murder in Case No.
KA006366. As part of the plea deal, the prosecution struck
the allegation that Hill had committed the attempted murder
willfully, deliberately, and with premeditation. Hill admitted
he had used a firearm in the commission of the crime and had
inflicted great bodily injury on the victim. The court sentenced
Hill to 16 years in the state prison, consisting of the upper term
of nine years, plus the midterm of four years for the firearm use,
plus three years for the infliction of great bodily injury.
On the same date, the court sentenced Hill in Case No.
A891681. Hill had pleaded guilty to second degree robbery in
that case in April 1989 and the case was pending sentencing.
The court imposed the low term of two years, to be served
concurrently with his attempted murder case as well as a
third case, Case No. A892293.1
In 2000, the People charged Hill with a violation of Health
and Safety Code section 11350, subdivision (a), possession of
a controlled substance. The People alleged Hill had two prior
strikes—the attempted murder and the robbery—as well as one
prison prior (the Health and Safety Code section 11352 case).
In May 2000 a jury convicted Hill of the charge. At the
conclusion of a bench trial on Hill’s priors, the court found the
strike and prison priors true. The court sentenced Hill to a
1 That case apparently involved a violation of Health and
Safety Code section 11352. The record on appeal contains
no further information about that case.
The minute orders of the January 31, 1991 proceedings
reflect that both plea agreements were set forth in writing.
Neither of those written plea agreements appears in the record
on appeal.
2
third strike sentence of 25 years to life in the state prison, plus
one year for the prior prison term enhancement. We affirmed
Hill’s conviction on March 28, 2001. (B142757.)
On January 21, 2020, Hill filed in the superior court a
document entitled “Notice of Motion and Motion for Modification
of Sentence Based on Newly Enacted Penal Code Section 1016.8,
Subdivision (a)(4); and Memorandum of Points and Authority
[sic].” The motion—which appears to be a fill-in-the-blanks
form—asks the court to “vacate his alternative Three Strikes
Sentence of 26 years to life” and “to be resentence[d] to his
based [sic] term.” Hill attached copies of the April 1989 and
January 1991 minute orders in his attempted murder and
robbery cases, and of the docket entries of the verdicts and
sentencing, as well as the abstract of judgment in his 2000
third strike case.
On January 24, 2020, the superior court denied Hill’s
motion. The minute order states, “[The] court has received, read,
and considered the defendant’s notice of motion and motion for
modification of sentence based [on] newly enacted Penal Code
section 1016.8(a)(4). [¶] Penal Code section 1016.8 applies only to
plea bargains and not convictions by jury. [¶] Here the defendant
was convicted by jury and the judgment is [ ] final. [The] motion
to dismiss is denied.”
Hill filed a notice of appeal2 and we appointed counsel
to represent him. After examining the record, counsel filed an
opening brief under People v. Serrano (2012) 211 Cal. App. 4th 496
(Serrano) stating, “I have reviewed the entire record on appeal.
I have not found any arguable issues to raise on appeal.” Counsel
2 Hill’s notice of appeal states he is appealing from a
“judgment” “entered on January 1, 2020.” We construe the notice
to appeal from the court’s order issued on January 24, 2020.
3
asked us “to follow the procedures set forth in [Serrano].”
Counsel declared he had provided Hill with the transcripts of
the record on appeal, as well as a copy of his Serrano brief, and
advised Hill of his right to file a supplemental brief. We have
received no supplemental brief from Hill.
Assembly Bill No. 1618 added section 1016.8 to the
Penal Code. (Stats. 2019, ch. 586, § 1.) The statute provides,
“A provision of a plea bargain that requires a defendant to
generally waive future benefits of legislative enactments,
initiatives, appellate decisions, or other changes in the law
that may retroactively apply after the date of the plea is void
as against public policy.” (Pen. Code, § 1016.8, subd. (b).) One
appellate court has concluded section 1016.8 applies retroactively
to cases not yet final on appeal. (People v. Barton (2020) 52
Cal. App. 5th 1145, 1153.)
New section 1016.8 does not assist Hill for several reasons.
First, as the superior court noted, Hill’s third strike sentence
resulted from a jury verdict, not a plea bargain—much less a
plea bargain in which he waived the benefits of future legislation
or initiatives. Second, Hill’s sentence was final nearly two
decades ago.
Third, Hill’s fill-in-the-blanks motion seems to suggest
he believes section 1016.8 somehow applies to him because his
strike priors resulted from plea agreements. Nothing in the
statute supports that contention. And, in any event, while simple
possession of a controlled substance now is a misdemeanor,
attempted murder and robbery remain not only felonies but
violent felonies and strikes under the three strikes law. (Pen.
Code, §§ 667.5, subds. (c)(9), (c)(12).)
Where, as here, court-appointed counsel has found no
arguable issues and the defendant has not filed a supplemental
brief, we may dismiss the appeal without conducting an
4
independent review of the record. (Serrano, supra, 211
Cal.App.4th at pp. 501, 503; People v. Cole (2020) 52 Cal. App. 5th
1023, 1039-1040, review granted Oct. 14, 2020, S264278.)
DISPOSITION
We dismiss Rodrick Onea Hill’s appeal from the trial
court’s order denying his “Motion for Modification of Sentence.”
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
DHANIDINA, J.
5