People v. Hill CA1/5

Filed 5/9/23 P. v. Hill CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for pur-
poses of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v. A165481
TION ALONZO GRIMMETT HILL,
SR.,
(Solano County Super. Ct. No.
Defendant and Appellant.
VCR210051)
Tion Alonzo Grimmett Hill, Sr. appeals from the order
denying his most recent motion for reconsideration, which was
filed about three years after the trial court denied his initial
petition for resentencing, pursuant to Penal Code, former §
1170.95.1 We conclude the challenged order is not appealable and
dismiss Hill’s appeal.
BACKGROUND
A.
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became
effective January 1, 2019, raised the level of culpability required
for murder liability to be imposed under felony murder and the
All undesignated statutory references are to the Penal
1
Code. As of June 30, 2022, former section 1170.95 was
renumbered to section 1172.6. (Stats. 2022, ch. 58, § 10.) We
hereafter refer to current code section 1172.6.
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natural and probable consequences theories. (See Stats. 2018, ch.
1015, §§ 1-2.) Senate Bill 1437 amended the definition of malice
in section 188 to provide that “[m]alice shall not be imputed to a
person based solely on his or her participation in a crime.” (§
188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.)
As a result of these amendments and later Senate Bill No.
775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551 § 2, eff. January
1, 2022), a person convicted of murder is now eligible for
resentencing if they were convicted “of felony murder or murder
under the natural and probable consequences doctrine or other
theory under which malice is imputed to a person based solely on
that person’s participation in a crime.” (§ 1172.6, subd. (a).)
However, a person who was the “actual killer” remains ineligible
for resentencing. (§§ 188, subd. (a)(3), 189, subd. (e)(1), 1172.6,
subd. (a)(3); People v. Garrison (2021) 73 Cal.App.5th 735, 742,
744.)
B.
In 2012, a jury convicted Hill of one count of attempted
arson (§§ 451, subd. (d), 664) and one count of second degree
murder (§ 187, subd. (a)). The jury also found true an
enhancement allegation that Hill personally and intentionally
discharged a firearm, which caused the victim’s death (§
12022.53, subd. (d)). Hill was sentenced to an aggregate prison
term of 68 years to life. On direct appeal, this Division affirmed
the judgment. (People v. Hill (Jan. 25, 2017, A143347) [nonpub.
opn.].)2
After Senate Bill No. 1437 was enacted, Hill (acting in
propria persona) filed a petition for resentencing under section
2 On the People’s unopposed request, we take judicial notice
of the record filed in Hill’s direct appeal (A143347). (See Evid.
Code §§ 452, subd. (d), 459, subd. (a); People v. Lewis (2021) 11
Cal.5th 952, 970-972.)
2
1172.6. His petition requested the appointment of counsel and
included a declaration stating that Hill was convicted of first or
second degree murder pursuant to the felony murder rule or the
natural and probable consequences doctrine, and he could not
now be convicted of first or second degree murder because of the
recent amendments to sections 188 and 189.
The trial court denied Hill’s first petition, after appointing
counsel and reviewing the jury instructions given at trial. The
court concluded that Hill failed to establish a prima facie case
because, although Hill’s jury was instructed on implied malice, it
was not instructed on either felony murder or the aiding and
abetting natural and probable consequences doctrine. On that
record, the jury’s firearm enhancement finding—that Hill
personally and intentionally discharged a firearm causing
death—established that Hill was the actual killer. Hill did not
file an appeal from the order.
In September 2020, Hill (again acting in pro per) then filed
a “petition for reconsideration for resentencing under [former
section] 1170.95,” in which he argued that he had already filed a
facially sufficient petition and that the trial court erred by
summarily denying his petition. The trial court did not take any
action on this petition, noting that the caption of the petition was
to this court of appeal and that counsel could place the matter on
calendar if needed.
In October of 2021, Hill filed another pro per petition for
resentencing under section 1172.6. His petition again requested
the appointment of counsel and made the same declarations
regarding the basis for his convictions. He continued to state
that he could not now be convicted of first or second degree
murder because of the 2019 amendments to sections 188 and 189.
The trial court took no action on the petition, noting that Hill had
previously filed the same petition and that earlier petition had
been heard and denied.
3
Thereafter, Hill filed four motions for reconsideration of the
order denying his petition for resentencing. The first of these
motions, filed in November 2021, argued that reconsideration
was required considering the intervening changes made to former
section 1170.95 by Senate Bill No. 775.3 Hill also stated that his
previous petition established a prima facie case for resentencing.
Hill’s next three motions were almost identical.
The trial court denied each motion, without appointing
counsel. The court observed that Hill had not stated any new
grounds requiring reconsideration. In its final order, dated June
10, 2022, the court also noted that the jury returned a true
finding on the personal and intentional discharge enhancement
under section 12022.53, subdivision (d).
Hill did not appeal after the trial court denied his first two
motions for reconsideration. However, on June 16, 2022, Hill
filed a notice of appeal that identified the challenged order as the
penultimate order, dated April 11, 2022, which denied his third
motion for reconsideration. We later granted Hill’s motion to
correct the notice of appeal and deemed it to be challenging the
June 10, 2022 order denying Hill’s fourth motion for
reconsideration.
DISCUSSION
Hill contends that the trial court erred in summarily
denying his fourth motion for reconsideration without first
appointing counsel. However, we agree with the People that the
June 10 order denying Hill’s fourth motion for reconsideration is
not an appealable order.
3 Senate Bill No. 775 added procedural requirements for
evaluating a petitioner’s eligibility for relief. (See former §
1170.95, subds. (c)-(d), as amended by Stats. 2021, ch. 551, § 2;
People v. Hurtado (2023) 89 Cal.App.5th 887, 892.)
4
A criminal defendant has the statutory right to appeal
“from a final judgment of conviction.” (§ 1237, subd. (a).) A
defendant may also appeal “[f]rom any order made after
judgment, affecting the substantial rights of the party.” (§ 1237,
subd. (b).) However, our Supreme Court recognizes a
qualification to this broadly stated rule. (People v. Thomas (1959)
52 Cal.2d 521, 527.) An order made after judgment is not
appealable where the underlying motion merely seeks to have the
trial court vacate or overrule its earlier judgment or other order—
which itself could have been reviewed on appeal. (Id. at p. 527
[order denying motion to vacate judgment of conviction is not
appealable]; In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1550,
fn.2 [“[a]n order denying a motion for reconsideration is
[generally] not an appealable order”]; People v. Rick (1952) 112
Cal.App.2d 410, 412 [“[a]n order made after judgment is not
appealable where the motion merely asked the court to repeat or
overrule a former ruling on the same facts”].)
“In such a situation appeal from the judgment is an
adequate remedy; allowance of an appeal from the order denying
the motion to vacate would virtually give defendant two appeals
from the same ruling and . . . would in effect indefinitely extend
the time for appeal from the judgment.” (People v. Thomas,
supra, 52 Cal.2d at p. 527.)
Here, Hill raised essentially the same argument in his
original petition for resentencing as he did in all his subsequent
petitions and motions for reconsideration. Thus, by appealing
from the original order denying his section 1172.6 petition or, at
the latest, by appealing from the first (post Senate Bill No. 775)
order denying reconsideration, Hill could have raised the very
same arguments he raises now. “A party’s failure to file a timely
appeal from an appealable order generally shows acquiescence in
the ruling [citations], and this acquiescence may bar a later
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motion in the trial court seeking reconsideration of the ruling.”
(People v. DeLouize (2004) 32 Cal.4th 1223, 1232-1233.)
Hill misplaces his reliance on People v. Farfan (2021) 71
Cal.App.5th 942. Farfan merely held that a successive petition
for resentencing, under section 1172.6, is not barred when the
later petition relies on new authority that was not available at
the time of the earlier petition. (Id. at p. 951.) Here, however,
Hill’s first through fourth motions for reconsideration rested on
the same factual allegations and identical law.
We agree with the People that allowing Hill’s current
appeal would give him more than one opportunity to appeal from
the same ruling and indefinitely extend the period in which to
appeal beyond 60 days (Cal. Rules of Court, rule 8.308(a)). Hill’s
appeal must be dismissed because the order denying his fourth
motion for reconsideration is not appealable.
DISPOSITION
The appeal is dismissed.
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______________________
BURNS, J.
We concur:
____________________________
JACKSON, P.J.
____________________________
LANGHORNE, J.*
A165481
* Judge of the Napa County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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