People v. Hill

319 Cal.Rptr.3d 678

The PEOPLE, Plaintiff and Respondent,

v.Brian Terrell HILL et al., Defendants and Appellants.

B322561

Court of Appeal, Second District, Division 2.

Filed March 25, 2024

APPEALS from postjudgment orders of the Superior Court of Los Angeles County. Victor D. Martinez and Juan Carlos Dominguez, Judges. Affirmed. (Los Angeles County Super. Ct. No. BA050222)

Steven A. Brody, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant Brian Terrell Hill.

Allen G. Weinberg, Beverly Hills, under appointment by the Court of Appeal, for Defendant and Appellant Clifford Jenkins.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews and Amanda V. Lopez, Deputy Attorneys General, for Plaintiff and Respondent.

LUI, P. J.

Brian Terrell Hill and Clifford Jenkins appeal the denial of their petitions for resentencing under Penal Code¹ section 1172.6 (former § 1170.95).² Appellants contend the denial of their petitions in reliance on a theory of felony murder based on kidnapping violates ex post facto principles because, at the time of the offense, kidnapping was not an enumerated felony under section 189, subdivision (a) to which felony-murder liability could attach. In the event this court concludes appellants may be guilty under a theory of felony murder based on robbery, appellant Jenkins asserts that remand is required to allow the superior court to conduct a new evidentiary hearing at which the People must prove appellants guilty beyond a reasonable doubt of felony murder based on robbery.³ Appellants further contend that substantial evidence does not support the superior courts’ findings. We reject appellants’ contentions and affirm the denial of their petitions under section 1172.6.

FACTUAL AND PROCEDURAL BACKGROUND

A. The murder of Randy Burge and attempted murder of Kevin Thomas⁴

On February 22, 1990, approximately 2:00 in the afternoon, Kevin Thomas was stopped in traffic in his car on 67th Street between Kansas Street and Vermont Avenue in Los Angeles, when Ernest Simms approached on foot. Placing a .25- or .32- caliber revolver against the back of Thomas’s head, Simms ordered Thomas out of the car. Simms forced Thomas at gunpoint to walk up a driveway to the back of a house where Jenkins was waiting at the back door. Jenkins was also armed with a .25- or .32-caliber revolver.

Putting his gun to the back of Thomas’s head, Jenkins forced Thomas through the kitchen into the living room of the house, where he made Thomas lie down on the floor. While Simms stood over Thomas with his gun trained on his head, Jenkins put his knee in Thomas’s back, handcuffed him, and placed duct tape over his mouth. As he restrained Thomas, Jenkins said, "‘This is for when I seen you the other day and you pointed your finger at me.’ "

Jenkins then left the house and returned with Randy Burge. Burge held his hands up as Jenkins forced him into the living room with his gun pressed into Burge’s back. Simms said to Burge, who had been standing on the street corner when Thomas was abducted, " ‘[Y]ou at the wrong place at the wrong time.’ " Burge was forced to the floor, and as Jenkins stood over Burge pointing his gun at him, Simms put Burge in handcuffs, tied his ankles, and stuffed a white T-shirt or cloth into Burge’s mouth. The T-shirt was replaced with duct tape, but the T-shirt was later put back in Burge’s mouth.

After Burge had been brought into the house, Freddie Doss entered, followed shortly thereafter by appellant Hill. Hill was armed with a .25- or .32-caliber revolver, and Doss had a slightly larger gun—a .38-caliber revolver. When Hill saw Thomas on the couch in handcuffs, he said to Thomas, " ‘Yeah, we got you.’ " Pointing his gun at Thomas and Burge, Hill repeatedly told them "to keep the noise down."

Burge kept making noise and asking why they were doing this to him. Simms responded, " ‘Shut up, man, I’m not playing.’ " When Burge persisted, Simms shot him in the foot.

At some point, Simms demanded $10,000 from Thomas. With their guns on Thomas’s head, Simms and Jenkins put the phone to Thomas’s ear and made him call his mother for the money. They told Thomas to say "a girl" would come over to pick up the money. Jenkins wrote down Ms. Thomas’s address. Later Jenkins took Thomas’s keys, $30 in cash, and a ring from Thomas’s finger. Thomas’s handcuffs and the tape had been removed to allow Thomas to call his mother. After the call, Jenkins replaced both.

About an hour and a half to two hours into the kidnapping, and about 10 to 15 minutes after the ransom call, Jenkins and Simms left the house. Hill and Doss remained guarding Thomas and Burge with their guns. The tape was removed and the victims were given beer and cigarettes, but when they asked why this was happening, Hill and Doss just told them to " ‘shut up.’ "

Around 5:00 p.m., Lucille Thomas received a phone call from her son. He said, "A girl named Donna is coming by to pick up $10,000. Give it, give it to her.’ " Then the line went dead. Ms. Thomas was able to pull together the $10,000, and about 45 minutes after the phone call, a woman calling herself Donna came to the door demanding the money. Ms. Thomas gave Donna the money and saw her walk across the street toward a purple van Ms. Thomas had never seen before.

Jenkins and Simms returned to the house about an hour and a half to two hours after they had left. Thomas asked if they had collected the money from his mother. Simms told Thomas his mother was not home and said, " ‘No, we didn’t get [the money] and your mama don’t care about you.’ " Apparently looking for a specific key, Jenkins took Thomas’s sock off. Then Jenkins and Simms left the house again, leaving Hill and Doss to stand guard with guns pointed at the captives.

After being held for about five hours, Thomas came to believe that he had to escape or he would be killed. Still handcuffed, he bolted from the couch and threw himself through a closed glass window, landing on his back in the driveway about five feet below the window. The handcuffs broke apart on impact. He got up and began running as Hill and Doss came out of the house. Hill and Doss pursued Thomas, firing five to six shots at Thomas. Thomas first sought safety in nearby apartments, but no one would let him in. Finally, approximately 8:00 p.m. he ran into a liquor store at 67th and Vermont, and one of the employees called the police.

When the police arrived, Thomas told them what had happened, and the officers took Thomas back to the location where he had been held. Around 9:50 p.m., as the police car turned the corner just past the house, the officers and Thomas saw a burgundy or purple van. Thomas spotted Jenkins and Simms in the van and alerted the police. As the police siren was activated, the van sped away and pulled into a driveway. Jenkins and Simms exited the vehicle and fled on foot. Simms was apprehended a short time later, and Jenkins was found hiding in the residence of Simms’s mother. Police recovered two handcuff keys from a toilet bowl where Jenkins was apprehended.

Hill, Doss, and Burge were gone when Thomas and police officers entered the house where the victims had been held.

Around 9:00 p.m. on February 22, 1990, a witness heard a single gunshot coming from the playground area of Centinela Park in Inglewood, approximately 3.9 miles from the house where Burge and Thomas had been held. The next morning around 6:35 a.m., a jogger discovered a body in Centinela Park. Police arrived to find Burge’s body facedown in the park, his hands handcuffed behind his back. He had a white T-shirt rolled up in his mouth as a gag and tied behind his neck. He had two visible gunshot wounds: a bullet wound behind his right ear, and a bullet hole in the top of his right shoe. There was a pool of blood around the head on the ground, and blood coming out of the ears, mouth, and nose. The condition of the body and pool of blood at the head suggested Burge had been killed at the site where he was found.

The autopsy revealed that Burge had died from a single gunshot wound to the head, fired from a .38-caliber revolver in contact with the skin. Time of death was estimated between 8:00 and 9:00 p.m. on February 22, 1990. The gunshot wound to the foot had come from a .22-caliber handgun.

B. Conviction and sentencing

On November 17, 1992, a jury convicted appellants as charged of the first degree murder of Burge (§ 187, subd. (a); count 1), and the attempted willful, deliberate, and premeditated murder of Thomas (§§ 664/187, subd. (a); count 6).⁵

At sentencing, the trial court struck the special circumstance findings as to appellant Hill, and sentenced both appellants to a term of 25 years to life for the first degree murder of Burge (count 1), plus a consecutive term of four years for the personal gun use enhancement on count 1. The court further imposed a subordinate consecutive term of life with parole for the attempted murder of Thomas (count 6).⁶

This court affirmed the judgment in an unpublished opinion in case number B074209, filed January 11, 1996. (People v. Clifford Jenkins et al. (Jan. 11, 1996, B074209) [nonpub. opn.].)

C. The Section 1172.6 Proceedings

In March and August 2019, respectively, appellants Hill and Jenkins filed petitions for resentencing pursuant to section 1172.6. Both petitions were denied for failure to make a prima facie showing for relief. Both appellants appealed. In each case, this court reversed the order denying the petition and remanded the matter with directions to issue orders to show cause and further proceedings in accordance with section 1172.6, subdivision (d). (People v. Ernest Simms et al. (July 2, 2021, B304577), 2021 WL 2766525 [nonpub. opn.]; People v. Clifford Jenkins (Feb. 4, 2022, B312226), 2022 WL 336212 [nonpub. opn.].)

Following remand, orders to show cause issued, and appellants’ section 1172.6 petitions...