Filed 9/29/23 P. v. Hill CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

CURTIS JAMES HILL,

 Defendant and Appellant.

 G061690

 (Super. Ct. No. 09CF1955)

 O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, 

Michael J. Cassidy, Judge. Affirmed.

Jan B. Norman, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Charles C. Ragland, Assistant Attorney General, Lynne G. McGinnis and 

A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
2

Convicted of special circumstances felony murder in 2011, Curtis James 

Hill appeals the denial of his third petition for resentencing under Senate Bill No. 1437. 

(Stats. 2018, ch. 1015.) That law allows defendants who were convicted of felony 

murder before 2019 to seek resentencing if 1) they were not the actual killer, 2) they did 

not aid and abet the actual killer in the commission of first degree murder, and 3) they 

were not a major participant in the underlying felony who acted with reckless

indifference to human life. However, in upholding the denial of appellant’s first petition, 

we ruled he was ineligible for resentencing as a matter of law because the record of 

conviction shows he was the actual killer. (People v. Hill (June 29, 2022, G060426) 

[nonpub. opn.] (Hill I).) Appellant challenges that ruling in this appeal, but it is 

controlling under the law of the case doctrine. Therefore, we affirm the trial court’s order 

denying his current petition for resentencing. 

BACKGROUND

The factual and procedural background are set forth in Hill I, which we 

incorporate by reference. That opinion reflects appellant was sentenced to life in prison 

without parole in 2011 after a jury found him guilty of murdering Cecil Warren during 

the commission of a robbery. Although appellant was accompanied by John McKinney 

during the murder, the record of conviction shows appellant personally punched and 

kicked Warren in the face when he took his property. The record also shows the jury 

found appellant’s actions were a substantial factor in Warren’s death, regardless of 

anything McKinney may have done to Warren during the robbery. Therefore, in Hill I

we affirmed the summary denial of appellant’s initial petition for resentencing because he 

was convicted of murder as the actual killer. (Hill I, supra, G060426, at pp. 6-8.)1

1

Appellant’s initial petition was filed under former Penal Code section 1170.95. That section has 

since been renumbered without substantive change as Penal Code section 1172.6. (Stats. 2022, ch. 58, § 10.) All 

further statutory references are to the Penal Code. 
3

While his appeal in Hill I was pending, appellant filed his second petition 

for resentencing, on January 7, 2022. The trial court denied the petition for lack of 

jurisdiction due to appellant’s pending appeal.

Less than a month later, appellant filed his third petition for resentencing, 

which is the subject of this appeal. In support of the petition, appellant’s attorney noted 

that after appellant filed his initial resentencing petition in 2019, the Legislature passed 

Senate Bill No. 775 (SB 775). (Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.) That bill 

amended former section 1170.95 to clarify the rules for determining a defendant’s 

eligibility for resentencing under that section. 

In their written response, which was filed in February 2022, the People 

argued that none of the changes ushered in by SB 775 applied to appellant’s case. 

Therefore, like his first petition, appellant’s third petition should be denied for failure to 

state a prima facie case for resentencing. 

We issued our opinion in Hill I on June 29, 2022, roughly six weeks before 

the hearing on appellant’s petition. At the hearing, the prosecutor argued that in light of 

that decision, appellant’s petition was barred under collateral estoppel principles. The 

trial court stated it was not inclined to consider that issue, since it had not been raised in 

the parties’ briefs. Nevertheless, the court determined that nothing of substance had 

changed from the time appellant filed his initial petition. As was the case then, appellant 

was still ineligible for resentencing as a matter of law because the record of conviction 

proved he was convicted as the actual killer. Therefore, it denied his petition for failure 

to state a prima facie case. 

In its written statement of decision, the trial court noted appellant never 

meaningfully addressed the fact his successive petitions were virtually identical. 

The court stated, “Although petitioner filed his first petition prior to the passage of SB 

775, the amendments . . . wrought by [that bill] do not impact petitioner’s case. 

Petitioner was already afforded appointment of counsel and a hearing. The felony 
4

murder rule was already amended when petitioner filed his initial petition. Thus, the 

Court of Appeal [in Hill I] considered petitioner’s case based on . . . the current state of 

the law to hold that petitioner is ineligible for relief as a matter of law. Petitioner does 

not identify any intervening circumstances that would warrant deviating from the 

appellate court’s decision.”

DISCUSSION

Appellant contends the record of conviction does not establish he was 

convicted of felony murder as the actual killer. Therefore, not only is the trial court’s 

ruling to the contrary incorrect, so was our prior decision in Hill I. In fact, the bulk of 

appellant’s briefing is aimed at challenging Hill I’s holding that he is legally ineligible for 

resentencing because he was convicted of murder for actually killing Warren during the 

course of a robbery. However, we agree with respondent that the law of the case doctrine 

forecloses appellant’s attempt to relitigate the merits of that decision. 

“[W]hen an appellate court ‘“states in its opinion a principle or rule of law 

necessary to the decision, that principle or rule becomes the law of the case and must be 

adhered to throughout [the case’s] subsequent progress, both in the lower court and upon 

subsequent appeal . . . .”’ [Citation.]” (People v. Barragan (2004) 32 Cal.4th 236, 246.)

The law of the case doctrine “‘will not be adhered to where its application will result in 

an unjust decision, e.g., where there has been a “manifest misapplication of existing 

principles resulting in substantial injustice” [citation], or the controlling rules of law have 

been altered or clarified by a decision intervening between the first and second appellate 

determinations [citation]. The unjust decision exception does not apply [however] when 

there is a mere disagreement with the prior appellate determination.’ [Citation.]” 

(People v. Gray (2005) 37 Cal.4th 168, 197, quoting People v. Stanley (1995) 10 Cal.4th 

764, 787; see also People v. Antonelli (2023) 93 Cal.App.5th 712 [law of the case 

doctrine applies in the context of a subsequent petition for resentencing under section 

1172.6].) 
5

Relying on People v. Strong (2022) 13 Cal.5th 698 (Strong), appellant 

asserts it would be unjust to find Hill I binding under the law of the case doctrine, or the 

related doctrine of collateral estoppel. In Strong, our Supreme Court refused to give 

preclusive effect to a jury’s determination the defendant was a major participant in the 

underlying felony and acted with reckless indifference to human life, which would have 

rendered him ineligible for resentencing under section 1172.6, even though he was not 

the actual killer. They did so because the major participant and reckless indifference 

requirements had undergone considerable judicial refinement since the jury rendered its 

verdict in that case. (Strong, supra, 13 Cal.5th at pp. 715-718.) 

However, Strong is inapt here because appellant’s eligibility for 

resentencing does not turn on the major participant or reckless indifference requirements. 

Rather, he was found ineligible because he actually caused Warren’s death. That is a

separate disqualifying circumstance that has not changed since Senate Bill No. 1437 

modified the felony murder rule in 2019. Therefore, as the People rightly contend, there 

is no justification for us to revisit our holding in Hill I. 

Appellant argues the People forfeited their right to argue law of the case by 

failing to raise that issue in the trial court. However, the People filed their response to 

appellant’s petition several months before Hill I was filed. And at the hearing on the 

petition, which took place just after that filing, the People argued appellant’s right to 

resentencing was foreclosed by that opinion. Under these circumstances, and considering

the applicability of the law of the case doctrine is a legal question subject to independent 

review (Leider v. Lewis (2017) 2 Cal.5th 1121, 1127), we reject appellant’s forfeiture 

claim. 
6

DISPOSITION

The trial court’s order denying appellant’s petition for resentencing is 

affirmed. 

BEDSWORTH, J.

WE CONCUR:

O’LEARY, P. J.

MOORE, J.