P. v. Hill

Filed 7/5/06 P. v. Hill CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Roberta McPeters, Judge. Affirmed.

Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr.,

Supervising Deputy Attorney General, and Erika Hiramatsu, Deputy Attorney General, for Plaintiff and Respondent.

1. Introduction

As ordered by the California Supreme Court, the trial court resentenced defendant Wayne Chester Hill and imposed a total prison term of 103 years for committing various violent crimes against several different victims during the course of a single night. On appeal, defendant claims that the trial court's selection of upper and consecutive terms violated his constitutional rights under the United States Supreme Court's decision in Blakely v. Washington (2004) 542 U.S. 296. Defendant also claims the court erred in imposing consecutive one-year enhancements under Penal Code section 12022, subdivision (a).^[1]

We conclude that the trial court properly imposed sentence in accordance with the law that applied at the time of his offense. We affirm the judgment.

2. Factual Summary and Procedural History

The sentencing issues raised in this appeal require only a brief summary of the facts, which will be taken from the record from defendant's first appeal, People v. Hill (E027135), filed April 9, 2001. Defendant and codefendants Marcus Henderson, Arthur Gee, and Marlon Junor drove around randomly victimizing several individuals during the early morning of September 29, 1991. At approximately 12:30 a.m., two of the men approached and robbed Tamara Acosta and Barrett Hanley at gunpoint. When Hanley refused to hand over his wallet, one of the men shot him in the chest. That same night, the men approached Maria D. and Marisa L. and forced the women into the back seat of their car. The men drove the two women to a remote location, where they subjected them to vaginal intercourse and forced the women to orally copulate them. At approximately 4:30 a.m. on the same morning, the men came across Stephanie Welsh and pushed her into the back seat of their car. When Welsh feigned a seizure, one of the men threw her out of the car and shot her in the chest. About 30 minutes later, the men approached Romelda Nickelberry and Debra Kennedy, who was five months pregnant. Nickelberry ran away and as Kennedy also tried to leave, one of the men shot her in the stomach three times. Kennedy gave birth prematurely and her child ultimately died.

Based on these events, the jury found defendant guilty of the following crimes: two counts of kidnapping (counts 5 & 6) (§§ 207, subd. (a), 208, subd. (d)); five counts of forcible rape (counts 7-9, 12 & 13) (§ 261, subd. (a)(2)); two counts of forcible oral copulation (counts 10 & 11) (§ 288a, subd. (c)); two counts of forcible rape in concert (counts 16 & 18) (§ 264.1); forcible oral copulation in concert (count 17) (§ 288a, subd. (d)); attempted murder (count 20) (§§ 664, 187, subd. (a)); attempted second degree robbery (count 21) (§§ 664, 211); second degree robbery (count 22) (§§ 211). The jury also found that defendant was armed with a firearm during the commission of each offense. (§ 12022, subd. (a)(1).) The trial court sentenced defendant to a total prison term of 113 years.

Defendant appealed. In our prior unpublished disposition, we reversed defendant's convictions for attempted robbery and robbery (counts 21 & 22), but affirmed his other convictions. As a result of our decision, defendant's sentence was reduced to 110 years eight months.

On June 5, 2003, defendant filed a petition for writ of habeas corpus in the California Supreme Court on the ground of ineffective assistance of appellate counsel. The People challenged defendant's claims, but conceded that defendant's sentence for kidnapping (counts 5 & 6) should have been stayed under section 654. The court issued an order to show cause.

On July 8, 2005, the trial court held a resentencing hearing and reduced defendant's sentence to 103 years. As before, the court sentenced defendant to the upper terms for all 13 offenses and ordered that the terms be served consecutively.

3. Upper and Consecutive Terms

Defendant argues that the trial court violated the rule in Blakely by imposing upper or aggravated terms under section 1170, subdivision (b), for each offense and imposing consecutive terms under section 667.6, subdivision (d), for the sexual assaults.

While the Blakely case involved only aggravated sentences, the California Supreme Court considered both aggravated terms and consecutive sentencing in People v. Black (2005) 35 Cal.4th 1238. The Court held that â€