P. v. Hill
Filed 9/10/12 P. v. Hill CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
DIRIKI A. HILL,
Defendant and Appellant.
D059846
(Super. Ct.
No. SCD231013)
APPEAL from
a judgment of the Superior Court
of San Diego
County, Joseph P. Brannigan, Judge. Affirmed.
A jury
convicted defendant Diriki Hill of one count of assault with a deadly weapon (Pen. Code,[1]
§ 245, subd. (a)(1), count 1), and found true the special allegation he personally
used a knife in committing the assault (§ 1192.7, subd. (c)(23)). Hill pleaded guilty to two other counts and
stipulated he had suffered three prior convictions that qualified as serious
felonies and as strikes under the three strikes law. The court, after denying Hill's motion to
dismiss the prior conviction allegations, sentenced him to 25 years to life
plus a determinate term of five years.
On appeal, Hill contends the court
abused its discretion when it denied his effort to impeach a prosecution
witness with that witness's prior convictions.
Hill also contends the court abused its discretion when it denied his motion to dismiss the prior conviction
allegations.
I
FACTS
A. Prosecution Evidence
Ms. Harvey had two children,
including a one-year-old daughter fathered by Mr. Wilson, the victim of
the charged assault. Although Harvey and
Wilson were no longer romantically involved, their relationship remained
amicable and they shared the parenting of their daughter.
In November 2010, Hill and Harvey
were in a dating relationship. Harvey
and her children lived on Beverly Street
in San Diego, and Hill stayed a
couple of nights a week with her.
On the afternoon of November 28, 2010, Wilson
called Harvey to tell her that he
was on his way to her residence to deliver some dog food. When she answered the phone, Wilson
heard scuffling and heard Harvey
say "he's beating me up."[2] When he arrived, the front door was open but
the security screen was locked, so Wilson
knocked. Harvey
started to leave the bedroom to answer, but (according to Harvey's
statement to police when her car was stopped less than 15 minutes later) Hill
hit her in the face and knocked her against a wall.[3] Hill went to the door, opened it, and Wilson
gave the dog food to Hill. Wilson
asked about Harvey's whereabouts
and Hill told him she was in the bedroom.
Wilson could not see Harvey
but could hear her crying.
Wilson
called out to ask if Harvey was all
right, and Hill told him, "I'll kill you," then headed back toward
the bedroom. Wilson
followed him and saw Hill and Harvey struggling over a large, sword-like
knife. After Hill gained control of the
knife, he moved toward Wilson with
the knife and said, "I'm going to get you, motherfucker." Wilson
ran out the front door and got into his car.
He drove a short distance and called 911.
Wilson
could still see the residence and, as he was talking to the 911 dispatcher,
Hill, still carrying the knife, emerged from the house with Harvey. Hill and Harvey got into a car and drove
away. Wilson
gave the license plate to the 911 dispatcher.
Harvey
told police that, while she drove, Hill punched her in the right eye. He also threatened to kill her if she
reported his assault on her. He warned
her that his family would come after her if Hill was jailed because of her.[4]
Just minutes after Wilson
called 911, police saw Harvey's car
and stopped it. Police found Harvey
crying and her hand was bleeding. Police
arrested Hill and noticed he had blood droplets on his shoes. Police searched the car and found a
sword-like knife.
B. Defense
Evidence
Two of Hill's friends, Mr. Pena and
Mr. Hoerle, testified to a previous confrontation between Hill and Wilson. Shortly after Thanksgiving, Hill and his two
friends were at Harvey's house when
Wilson arrived to pick up his
daughter. Harvey and Wilson appeared to
have an argument in the driveway that concluded when Harvey
brought the girl out and turned her over to Wilson. Pena testified Wilson
then angrily pointed at Hill and said, "I'm going to get you." Hoerle testified Wilson
started to walk angrily toward Hill, saying something to the effect of
"what are you going to do" before returning to his car and driving
away. The defense also introduced the
testimony of its investigator that he went to interview Wilson three times, and
left his card when Wilson was not home, but never received a return call.
II
ANALYSIS
A. The Evidentiary Ruling
Prior to trial, the prosecution
moved in limine to preclude the defense from impeaching Wilson
with his prior felony convictions for drug-related offenses. The court granted the prosecution's motion,
and Hill contends this was reversible error.
The prosecution's in limine motion
noted Wilson had four felony convictions
for drug-related offenses, the dates of which were 1990, 1998, and 2000. The convictions were (1) a 1990 conviction
for violating Health and Safety Code section 11359, (2) a 1998 conviction for
violating Health and Safety Code section 11359, and (3) convictions in 2000 for
violating Health and Safety Code sections 11352 and 11377. The defense argued these should be admitted
into evidence so the jury would get "the full flavor of Mr. Wilson"
because Wilson was the "key
witness" against Hill and that avenues of impeachment of key witnesses
should be open. The prosecution argued
the court should exclude any mention of those offenses because some were not
crimes involving moral turpitude, the crimes that arguably involved moral
turpitude were too remote, and the events giving rise to the assault charge did
not involve drugs.
The court, applying the framework
created by People v. Castro (1985) 38
Cal.3d 301 (Castro), ruled the two
convictions for Health and Safety Code section 11359 did involve moral turpitude,
but the convictions for violating Health and Safety Code sections 11352 and
11377 were "simple possession offenses, rather than possession for sale,
which are not crimes of moral turpitude."
The court, after considering Wilson's
record, held the convictions were too remote, and were collateral because there
was no suggestion drugs played any role in the charged offenses, and therefore
ruled the prejudicial effect would outweigh any probative value the convictions
might have, and barred the defense from using the convictions to impeach Wilson's
credibility.
In Castro, supra, 38 Cal.3d 301 at page 306, our Supreme Court
concluded only prior convictions for crimes involving moral turpitude were
admissible to impeach a witness's credibility.
Moreover, Castro confirmed a
trial court retained its discretion under Evidence Code section 352 to exclude
evidence of prior convictions if the prejudicial impact of the evidence
outweighed its probative value. (Castro, at p. 306.) The court established
a two-pronged test for admissibility of prior convictions to impeach a
witness's credibility. Initially, the
trial court must determine whether the felony conviction necessarily involves moral
turpitude. (Id.
at p. 314.) The court equated moral turpitude
with a readiness to do evil, reasoning a crime involving moral turpitude has some bearing on
credibility. (Ibid.) By so holding, Castro broadened the class of prior felonies prima facie admissible
for impeachment from those including only dishonesty to felonies involving moral turpitude.
If
it is determined the felony conviction necessarily involves moral turpitude, the court must then weigh
the probative value of the prior conviction against its prejudicial effect
under Evidence Code section 352. (
316-317.) "When the witness
subject to impeachment is not the defendant, those factors [that show the probative value of the prior conviction]
prominently include whether the conviction (1) reflects on honesty and (2) is
near in time." (
654.) Against
these factors, the trial court weighs "undue consumption of time," and the
"substantial danger of undue prejudice, of confusing the issues, or of misleading the
jury." (Evid. Code, § 352.)
Our review of the trial court's
ruling on this issue is limited.
"The rule is settled that the trial court's discretion to exclude
or admit relevant evidence under Evidence Code section 352 'is as broad as necessary
to deal with the great variety of factual situations in which the issue arises,
and in most instances the appellate courts will uphold its exercise whether the
conviction is admitted or excluded.'
[Quoting People v. Collins
(1986) 42 Cal.3d 378, 389.]
[¶] . . . [¶] . . . '[W]hen
the question on appeal is whether the trial court has abused its discretion,
the showing is insufficient if it presents facts which merely afford an
opportunity for a difference of opinion.
An appellate tribunal is not authorized to substitute its judgment for
that of the trial judge.
[Citation.] A trial court's
exercise of discretion will not be disturbed unless it appears that the
resulting injury is sufficiently grave to manifest a miscarriage of
justice. [Citation.] In other words, discretion is abused only if
the court exceeds the bounds of reason, all of the circumstances being
considered. [Citation.]' [Quoting People
v. Stewart (1985) 171 Cal.App.3d 59, 65.]" (People
v. Kwolek (1995) 40 Cal.App.4th 1521, 1532-1533.)
Hill argues
the court abused its discretion when it held Wilson's 1990 and 1998 convictions
were inadmissible under Evidence Code section 352 because of the remoteness of
the convictions.[5] We do not conclude the court exceeded the
bounds of reason, all of the circumstances being considered. The passage of time between the convictions
and the date of trial was extensive, ranging from 11 years (for the most recent
of the convictions) to over 20 years (for the most remote of the convictions). Although there is no "consensus among
courts as to how remote a conviction must be before it is too remote" (
734, 738), the use of a 10-year period as a presumptive cut-off date for prior
convictions is within the court's discretion (People v. Pitts (1990) 223 Cal.App.3d 1547, 1554), and all of
Wilson's prior offenses were of a more ancient vintage. Moreover, the courts have repeatedly
recognized that crimes involving a general readiness to do evil are less indicative of a witness's
veracity in testifying than crimes of dishonesty (see, e.g.,
419, 422; People v. Coad (1986) 181
Cal.App.3d 1094, 1106), and the crimes considered below
(although involving moral turpitude because of a general readiness to do evil)
were not crimes involving dishonesty.
Because the
convictions were remote, did not involve dishonesty, and involved criminal
conduct irrelevant to the factual milieu of the charged offense, we do not
conclude the court exceeded the bounds of reason, all of the circumstances
being considered, when it barred the defense from using those old convictions
to impeach Wilson's credibility.
B. The Sentencing Decision
Hill
contends the trial court erred when it declined to dismiss two of his prior
strike allegations because it based its refusal to dismiss on facts unsupported
by the record.
Background
After the
jury convicted Hill of the charged assault, the parties stipulated he had
pleaded guilty in 1996 to three separate felonies (one count of voluntary
manslaughter and two counts of assault with a firearm) and had admitted a
former Penal Code section 12022, subdivision (a)(1), allegation in connection
with the voluntary manslaughter charge (the 1994 offenses), all of which were
alleged in the present proceeding to be strike convictions within the meaning
of the three strikes law. At sentencing,
Hill moved to dismiss two of the prior strike allegations under
that he was a passive participant in the crimes because it was a drive-by
shooting in which he merely rode in the car with the actual shooter. The prosecution argued there was evidence
that it was Hill's idea to confront the victims, he gathered the attackers to
go to the site of the shooting, and knew his companions would be taking guns
with them to the confrontation. The prosecutor also argued that, after Hill
was released from 14 years in prison for that offense, he did not mend his ways
but instead continued to employ violence in his relationships with others,
including a demonstrable willingness to use weapons in these confrontations.
After considering Hill's arguments,
as well as the arguments in opposition by the prosecution, the court denied the
motion. The court noted that, as to the
present offense, the prosecutor "goes through the factors in aggravation
and talks about the fact that the crime involved violence, use of a weapon, was
engaged in violent conduct." The
court also noted the prosecution "points out [Hill's] prior conviction as
an adult, and as a juvenile the proceedings are numerous with increasing
seriousness, points to the prior prison term, the fact that [Hill's]
performance on probation and parole was unsatisfactory, and then [the
prosecution] argues . . . [Hill] clearly falls within the spirit of
the three strikes legislation and I agree as well . . . .
[¶] So I'm going to deny the request to strike the strikes . . . ."
General
In
1385, subdivision (a), permits a court acting on its own motion to dismiss
prior felony conviction allegations in cases brought under the three strikes
law. (People v. Superior Court (Romero)
529-530.) Romero emphasized that "[a] court's discretion to strike prior
felony conviction allegations in furtherance of justice is limited. Its exercise must proceed in strict
compliance with section 1385[, subdivision] (a), and is subject to review for
abuse." (Id. at p. 530.) Although the
Legislature has not defined the phrase "in furtherance of justice"
contained in section 1385, subdivision (a), Romero
held this language requires a court to consider both the constitutional rights
of the defendant and the interests of society represented by the People in
determining whether to dismiss a prior felony conviction allegation. (Romero,
at p. 530.)
In
148, 161, our Supreme Court further defined the standard for dismissing a
strike "in furtherance of justice" by requiring that the defendant be
deemed "outside" the "spirit" of the three strikes law
before a strike allegations is dismissed:
"[I]n ruling whether to strike or vacate a prior serious and/or
violent felony conviction allegation or finding under the Three Strikes law, on
its own motion, 'in furtherance of justice' pursuant to . . . section
1385[, subdivision] (a), or in reviewing such a ruling, the court in question
must consider whether, in light of the nature and circumstances of his present
felonies and prior serious and/or violent felony convictions, and the
particulars of his background, character, and prospects, the defendant may be
deemed outside the scheme's spirit, in whole or in part, and hence should be
treated as though he had not previously been convicted of one or more serious
and/or violent felonies."
A trial
court's decision not to dismiss a prior conviction allegation under section
1385 is reviewed under "the deferential abuse of discretion
standard." (People v. Carmony (2004) 33 Cal.4th 367, 371.) Carmony
explained that when reviewing a decision under that standard, an appellate
court is guided "by two fundamental precepts. First, ' "[t]he burden is on the
party attacking the sentence to clearly show that the sentencing decision was
irrational or arbitrary.
[Citation.] In the absence of
such a showing, the trial court is presumed to have acted to achieve legitimate
sentencing objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review." ' [Citations.]
Second, a ' " decision will not be reversed merely because
reasonable people might disagree. 'An
appellate tribunal is neither authorized nor warranted in substituting its
judgment for the judgment of the trial judge.' " ' [Citations.]
Taken together, these precepts establish that a trial court does not
abuse its discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it."
(Id. at pp. 376-377.)
Analysis
We conclude
Hill has not satisfied his "burden . . . to clearly show that
the sentencing decision was irrational or arbitrary." (People
v. Carmony, supra, 33 Cal.4th at p. 376.)
The court considered the nature of the current offense, which involved a
threat of violence and the use of a weapon, both proper grounds upon which to
deny a Romero motion. (People
v. Williams, supra, 17 Cal.4th at 161; cf. People v. Pearson (2008) 165 Cal.App.4th 740,
749.) The court also properly relied on
Hill's criminal history (which involved numerous offenses of escalating
severity until he was imprisoned for the 1994 offenses), and his demonstrated
inability to comply with probation and parole conditions,[6]
when it found he "clearly falls within the spirit of the three strikes
legislation" and denied his Romero
motion.
The only basis for Hill's argument
that the denial of the Romero motion
was an abuse of discretion is that the court made an "implicit
finding" Hill was a direct participant in the 1994 offenses, despite the
evidence that he was merely accompanying the actual shooter and had no
foreknowledge of the shooter's intentions.
However, the record does not suggest the court made that finding as to the 1994 offenses, or that it
rejecting his Romero motion. Instead, Hill's argument rests on the premise
that we should infer the trial
court's ruling was based on that finding.
However, we do not presume error from a silent record, but instead
require an affirmative showing of error.
(People v. Davis (1996)
50 Cal.App.4th 168, 172.)
Hill has not made that showing and therefore has not satisfied his
burden of clearly showing the sentencing decision was irrational or arbitrary.
DISPOSITION
The judgment is affirmed.
McDONALD, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.
[1] All
further statutory references are to the Penal Code unless otherwise specified.
[2] At
trial, Harvey denied she told Wilson during a phone conversation that Hill was
beating her up, even though her phone records showed an 18-second phone call
between Wilson's cell phone and hers at 3:41 p.m. Less than 10 minutes elapsed between this
phone record and Wilson's call to the 911 dispatcher.
