P. v. Hill
Filed 7/28/10 P. v. Hill CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE, Plaintiff and Respondent, v. IVAN J. HILL, Defendant and Appellant. | B216395 (Los Angeles County Super. Ct. No. KA083825) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Charles Horan, Judge. Affirmed.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
Ivan Hill was convicted of six murders committed in 1993 and 1994. Evidence that he committed two other murders was presented during the penalty phase of that case and he was sentenced to death. He was then charged in this case with those two murders. He moved to dismiss, claiming that under Penal Code[1]sections 654 and 954, the two murders should have been joined with the six murders charged in the capital case. He also claimed prosecution for these murders placed him twice in jeopardy because these same murders had been found true beyond a reasonable doubt in the capital case. He raises these same issues on appeal. We find neither constitutional nor statutory prohibition against this prosecution and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The body of Lorna Reed was found in a field in an unincorporated area of San Dimas on February 11, 1986. A rope was wound around her neck with two knots tied in it. The body of Rhonda Jackson was found in a dumpster in Pomona on January 25, 1987. The leg of a pair of pants was tied in knots around her neck. Both women died of ligature strangulation. Sexual assault evidence recovered from the womens bodies was matched to appellants DNA in March 2004. Fingernail scrapings taken from Jackson were matched to appellants DNA in May 2006.
In November 2003, appellant was charged with six other first degree murders, occurring between November 1993 and January 1994 (case No. KA064034; the capital case). Multiple murder and prior murder special circumstances were alleged. The prosecution filed a notice of the aggravating factors it intended to introduce in the penalty phase pursuant to section 190.3, subdivision (b) (factor (b)). The notice included the Jackson and Reed homicides.
Appellant sought an order directing the prosecution to file and join these two uncharged homicides in the capital case. In support, he argued the similarity between the six charged homicides and the two uncharged homicides, since all involved the strangulation murders of women believed to be prostitutes. He also argued joinder was necessary to assure due process and a reliable penalty determination. The motion was denied; it was revisited after the matter was assigned to a trial court, and denied again.
In November 2006, the jury in the capital case found appellant guilty of all six counts of first degree murder and found the special circumstances to be true. The prosecution introduced factor (b) evidence, including the Jackson and Reed homicides. The prosecutor argued the Jackson and Reed homicides had been proved beyond a reasonable doubt and that, considering the charged and uncharged homicides, appellant should be sentenced to death. The jury returned a verdict of death. The court denied appellants motion to modify the verdict and sentenced him to death in the capital case.
In July 2008, appellant was charged with the Jackson and Reed homicides. Appellant moved to dismiss based on the prior use of these homicides in the capital case, asserting estoppel, and violations of due process, double jeopardy, and sections 654 and 954. The motion was denied. Appellant entered a plea of guilty to both murders in exchange for a maximum sentence of life without parole. He filed a timely notice of appeal, and obtained a certificate of probable cause to raise the issues in this appeal.
DISCUSSION
I
Appellant argues that prosecution for the Jackson and Reed homicides was barred by the proscription against multiple prosecutions under section 654. That statute provides that when an act or omission is punishable in different ways by different provisions of the law, [a]n acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.
Appellant relies on the interpretation of section 654s proscription in Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett). The defendant in Kellett was standing on a public sidewalk with a pistol in his hand. He was charged with and pleaded guilty to the misdemeanor charge of exhibiting a firearm in a threatening manner. The Supreme Court held that this conviction prohibited a subsequent prosecution for the felony of possessing a concealable weapon by a felon, based on the same incident. The court explained: If needless harassment and the waste of public funds are to be avoided, some acts that are divisible for the purpose of punishment must be regarded as being too interrelated to permit their being prosecuted successively. When there is a course of conduct involving several physical acts, the actors intent or objective and the number of victims involved, which are crucial in determining the permissible punishment, may be immaterial when successive prosecutions are attempted. When . . . the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence. (Id. at p. 827, fn. omitted.)
Kellett was distinguished and limited in People v. Carpenter (1999) 21 Cal.4th 1016, a case involving trial of a defendant for murders in one county after a separate jury had convicted him of murders in another county. Whatever the scope of [the Kellett] decision, the murder of separate victims on separate days in separate counties is not a single act or even a course of conduct [citation] requiring a single prosecution. (Id. at p. 1038.)
The murders in this case were not committed in different counties from the murders in the capital case. And although they may share some factual similarities to the crimes in the capital casesuspected prostitutes as victims and strangulation as the cause of deaththere is no course of conduct or other interconnection with the capital case. Notably, the Jackson and Reed homicides were temporally separated from the crimes in the capital case by more than seven years. Nothing in section 654 or in Kellett requires that offenses committed against separate victims, at vastly separate times, and in separate locations be prosecuted in a single proceeding. (See People v. Cuevas (1996) 51 Cal.App.4th 620, 624.)
Section 954 authorizes the joinder of these two sets of homicides: An accusatory pleading may charge two or more different offenses connected together in their commission, . . . or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. The fact that joinder is permitted does not mean that it is required. (See People v. Marlow (2004) 34 Cal.4th 131, 143.)[2] Separate prosecutions were permissible, and did not violate appellants right to due process. (People v. Carpenter, supra, 21 Cal.4th at p. 1039.)
II
Appellant argues the federal and state constitutional prohibition against double jeopardy bars this prosecution because in sentencing him to death in the capital case, the trial court found the Jackson and Reed murders to be established beyond a reasonable doubt.
The same contention was rejected by the Supreme Court in People v. Medina (1995) 11 Cal.4th 694, 765. In that case the prosecutor introduced evidence of the present murder as aggravating evidence during the penalty phase of an earlier prosecution for multiple murder. Defendant argued his attorney was incompetent for failing to assert a double jeopardy objection to the present prosecution. The Supreme Court noted that it had repeatedly held that the constitutional guarantee against double jeopardy is inapplicable where evidence of prior criminal activity is introduced in a subsequent trial as an aggravating factor for consideration by a penalty phase jury. [Citations.] (Id. at p. 765.) In People v. Visciotti [(1992) 2 Cal.4th 1,] 71, we reasoned that [t]he presentation of evidence of past criminal conduct at a sentencing hearing does not place the defendant in jeopardy with respect to the past offenses. He is not on trial for the past offense, is not subject to conviction or punishment for the past offense, and may not claim either speedy trial or double jeopardy protection against introduction of such evidence. [Citation.] (See also Dowling v. United States [(1990)] 493 U.S. 342, 348; People v. Douglas (1990) 50 Cal.3d 468, 528; People v. Melton [(1988) 44 Cal.3d 713,] 754-755.) [] We see no reason why the foregoing analysis should not apply here. Defendant was not placed in jeopardy when evidence of the present charges was introduced at his Orange County trial. Accordingly, defense counsel was not incompetent in failing to assert a double jeopardy objection at the trial of the present charges. (Medina, supra, 11 Cal.4th at p. 765.)
For the same reasons, we reject appellants double jeopardy claim.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
EPSTEIN, P.J.
We concur:
WILLHITE, J.
SUZUKAWA, J.
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[1] All statutory references are to the Penal Code.
[2] Similarly, the 1998 amendment to section 790, subdivision (b) to permit, in certain circumstances, the joint trial of murders committed in different counties, does not compel such joint trial.
