Filed 4/13/15 P. v. Hill CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH ANTHONY HILL,

Defendant and Appellant.

 D066201

 (Super. Ct. No. SCD247231)

APPEAL from a judgment of the Superior Court of San Diego County, Amalia L. 

Meza, Judge. Affirmed in part, reversed in part, and remanded with directions.

Siri Shetty, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Anthony 

Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.

In March 2013, Joseph Hill kicked his girlfriend in the face, breaking her nose and 

further injuring her. Hill was convicted of corporal injury to a spouse or roommate and 

assault by means likely to produce great bodily injury. Because Hill had two prior 
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serious or violent strike convictions, he was sentenced under California's three strikes 

law.

Hill now appeals, claiming (1) the trial court abused its discretion by refusing to 

dismiss one of his prior strike conviction allegations, and (2) the trial court erred by 

staying a one-year prison enhancement that should have been stricken. The People claim 

the trial court properly refused to dismiss a prior strike conviction allegation based on 

Hill's 26-year history of criminality, which was increasing in violence. The People agree, 

however, that the trial court erred by staying, rather than striking, a one-year prison 

enhancement.

FACTUAL AND PROCEDURAL BACKGROUND

On March 31, 2013, Hill, along with two friends, picked up his then-girlfriend 

Ayla Hooper from the hospital. The group visited a gravesite at the Fort Rosecrans 

cemetery. There, Hill and Hooper started to argue. Hill took Hooper's belongings out of 

the vehicle and threw them on the ground. When Hooper knelt down to retrieve them, 

Hill kicked her in the face. As Hill drove away, witnesses called the police.

When Hooper regained consciousness, she told witnesses it was Hill who kicked 

her but maintained she did not want to call police. Hooper also called her mother and 

said it was Hill who kicked her in the face. When authorities arrived, they observed a 

bump above Hooper's right eye and dried blood on her upper lip; they did not observe 

bruising or a bloody nose. Hooper declined medical treatment and departed the area with 

her mother. Soon thereafter, officers arrested Hill at a nearby 7-Eleven after a bystander 

identified him in a curbside lineup.
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While incarcerated, Hill contacted both Hooper and his mother several times. 

During phone calls to Hooper, Hill maintained he did not kick her and repeatedly asked if 

she was going to testify for him. During phone calls to his mother, Hill discussed 

Hooper's potential testimony and asked his mother to "keep on [Hooper] about the story."

In an Amended Information, filed on May 5, 2013, the San Diego County District 

Attorney charged Hill with corporal injury to a spouse or roommate (Pen. Code, § 273.5, 

subd. (a)1—count 1); battery with great bodily injury (§ 243, subd. (d)—count 2); and 

assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)—count 3), 

with each count a strike under the three strikes law (§§ 667, subds. (b)-(i), 1170.12). As 

to counts 1 and 3, it was further alleged Hill inflicted great bodily injury on Hooper 

(§ 1192.7, subd. (c)(8)) and personally inflicted great bodily injury on Hooper under 

circumstances involving domestic violence (§ 12022.7, subd. (e)). As to all counts, it 

was further alleged Hill intended to cause great bodily injury (§§ 667, subd. (e)(2)(C)(iii), 

1170.12, subd. (c)(2)(C)(iii)). It was further specially alleged Hill had six prior denials of 

probation (§ 1203, subd. (e)(4)), four prison priors (§§ 667.5, subd. (b), 668), two serious 

felony priors (§§ 667, subd. (a)(l), 668, 1192.7, subd. (c)), and two strike priors (§§ 667, 

subds. (b)-(i), 1170.12, 668).

In a bifurcated proceeding, a jury found Hill guilty of corporal injury to a spouse 

or roommate (count 1), with true findings that he intended to cause great bodily injury

and caused great bodily injury under circumstances involving domestic violence, and 

guilty of assault by means likely to produce great bodily injury (count 3), with true 

 

1 All further statutory references are to the Penal Code unless otherwise specified.
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findings that he intended to cause, and he personally inflicted, great bodily injury. The 

jury found Hill not guilty of battery with serious bodily injury (count 2). The trial court 

found true all further special prior allegations.

On June 20, 2014, pursuant to the three strikes law, the trial court sentenced Hill to 

18 years plus an indeterminate term of 25 years to life. Specifically, the court imposed 

25 years to life for count 1, 5 years for the section 12022.7 allegation, 5 years for each 

serious felony, and 3 one-year terms for three of the prison priors; the court stayed the 

terms for both count 3 and one prison prior. On June 23, 2014, Hill filed a notice of 

appeal.

DISCUSSION

I

Standard of Review

A trial court's refusal to dismiss a prior strike conviction allegation is reviewable 

for abuse of discretion, a deferential standard. (People v. Carmony (2004) 33 Cal.4th 

367, 374.) The party seeking dismissal bears the burden of clearly showing the 

sentencing decision was irrational or arbitrary. Without that 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." ' " (Id. at pp. 376-377, quoting People v. Superior Court (Alvarez) (1997) 14 

Cal.4th 968, 977-978.) A trial court does not abuse its discretion "unless its decision is so 

irrational or arbitrary that no reasonable person could agree with it." (Carmony, at 

p. 377.)
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II

Prior Strike

Hill has two prior strike convictions, one in 1988 for robbery with use of a firearm 

(§ 211), and one in 2007 for battery resulting in great bodily injury (§ 243, subd. (d)). He 

contends the trial court abused its discretion by declining to dismiss the earlier prior 

conviction allegation, because the record demonstrates he should be treated as though he 

actually falls outside the three strikes law. The People assert the trial court properly 

refused to dismiss the prior strike conviction allegation based on Hill's "extensive and 

serious criminal history since 1988."

Trial courts are empowered to dismiss prior strike conviction allegations in 

furtherance of justice. (§ 1385, subd. (a); People v. Superior Court (Romero) (1996) 13 

Cal.4th 497, 507-508.) Furtherance of justice requires the trial court to consider both the 

constitutional rights of the defendant and the societal interest in the fair prosecution of 

crimes properly alleged. (Romero, at p. 530.) Ultimately, the court must decide

"whether, in light of the nature and circumstances of his present felonies and prior . . . 

convictions, and the particulars of his background, character, and prospects, the 

defendant may be deemed outside the [spirit of the three strikes law], in whole or in part, 

and hence should be treated as though he had not previously been convicted of one or 

more [strikes]." (People v. Williams (1998) 17 Cal.4th 148, 161.)

Hill claims his criminal history shows he is not the type of violent recidivist 

offender for whom the three strikes law was created. He asserts the trial court should 

have dismissed his strike conviction allegation from 1988 because: (1) the conviction is 
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remote, dating back to when Hill was 18 years old; (2) his subsequent criminal history 

consists of mostly nonviolent drug and theft offenses; and (3) even absent a third strike 

conviction, his potential sentence remains substantial, at 26 years of imprisonment.

Considering the nature and circumstances of Hill's present felonies and prior 

convictions, and the particulars of his background, the trial court reasonably found that to 

dismiss a prior strike conviction allegation would not be in furtherance of justice, and 

refused to do so, citing Hill's "extensive and serious criminal history since 1988" as the 

primary reason.

The trial court reviewed Hill's extensive criminal history, which included: in 1988, 

robbery with use of a firearm (§ 211), for which he was sentenced to three years in 

prison; in 1990, indecent exposure (former Pen. Code, § 314.1); between 1990 and 1994, 

three parole violations; in 1995, grand theft [stolen cargo over $950] (§ 487h), for which 

he was sentenced to four years in prison; between 1999 and 2003, five parole violations; 

in 2003, possessing narcotics for sale (Health & Saf. Code, § 11378); in 2004, possessing 

narcotics for sale (Health & Saf. Code, § 11378), for which he was sentenced to four 

years in prison; in 2006, one parole violation; in 2006, possessing controlled substances 

while armed with a firearm (Health & Saf. Code, § 11370.1), and failing to register as a 

sex offender (§ 290), for which he was sentenced to five years in prison; in 2007, battery 

resulting in great bodily injury (§ 243, subd. (d)), for which he was sentenced to two 

years in prison; between 2012 and 2013, four parole violations; and, in 2013, in this case, 

corporal injury to a spouse or roommate (§ 273.5, subd. (a); count 1), and assault by 

means likely to produce great bodily injury (§ 245, subd. (a)(4); count 3). 
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Hill argues the trial court abused its discretion by not considering relevant factors 

in mitigation, like the fact that a 26-year sentence will incarcerate Hill "beyond the point

at which recidivism [is] likely," or the fact Hooper declined medical attention at the 

scene, and did not appear to suffer any permanent injuries. The trial court heard and 

considered argument on those points. It nonetheless decided "it would not be in the 

interest of justice to [dismiss the prior strike conviction] considering the totality of the 

circumstances in this case."

Because Hill's record portrays a lifetime of crime and imprisonment, and because 

the three strikes law was designed to address the problem of "revolving door" career 

criminals, it cannot be said that no reasonable person could agree with the trial court's 

decision. The trial court therefore did not abuse its discretion when it refused to dismiss 

one of Hill's prior strike conviction allegations. 

II

Prison Prior

Hill argues, and the People agree, that the sentence for his 1988 one-year prior 

prison enhancement must be stricken instead of stayed, pursuant to section 654, because 

the trial court imposed a five-year serious felony enhancement for the same 1988

conviction (case No. CR92690). "[W]hen multiple statutory enhancement provisions are 

available for the same prior offense, one of which is a section 667 enhancement, the 

greatest enhancement, but only that one, will apply." (People v. Jones (1993) 5 Cal.4th 

1142, 1150.) The trial court improperly imposed both the one-year prior prison 

enhancement under section 667.5, subdivision (b), and the five-year serious felony 
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enhancement under section 667, subdivision (a), based on the same 1988 conviction. The 

one-year prior prison enhancement must be stricken.

DISPOSITION

The case is remanded to the trial court with directions to strike the 1988 one-year 

prior prison enhancement and to so inform the Department of Corrections and 

Rehabilitation. In all other respects, the judgment is affirmed.

McDONALD, J.

WE CONCUR:

HALLER, Acting P. J.

McINTYRE, J.