People v. Hill

• Decision Date: 23 October 1997
• Docket Number: No. H013671,H013671
• Citation: 58 Cal.App.4th 1078,68 Cal.Rptr.2d 375
• Parties: , 97 Cal. Daily Op. Serv. 8202, 97 Daily Journal D.A.R. 13,259 The PEOPLE, Plaintiff and Respondent, v. Thomas Alexander HILL, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 375

68 Cal.Rptr.2d 375

58 Cal.App.4th 1078, 97 Cal. Daily Op. Serv. 8202,

97 Daily Journal D.A.R. 13,259

The PEOPLE, Plaintiff and Respondent, v. Thomas Alexander HILL, Defendant and Appellant.

No. H013671.

Court of Appeal, Sixth District, California.

Oct. 23, 1997.

Certified for Partial Publication. ^*

Rehearing Denied Nov. 21, 1997.

Review Denied Feb. 18, 1998.

Dale Dombkowski by Appointment of the Sixth District Appellate Program, San Francisco, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Asst. Atty. General, Ronald A. Bass, Senior Asst. Atty. General, Richard Rochman, Deputy Atty. General, Herbert F. Wilkinson, Deputy Atty. General, for Plaintiff and Respondent.

WUNDERLICH, Associate Justice.

I. Statement of the Case

Thomas Alexander Hill and Angela Yvet Tinsley (Tinsley) were jointly charged with five counts of forging checks. (PEN.CODE, § 470. )¹ Defendant Hill (defendant) was separately charged with one misdemeanor count of concealing or destroying evidence. (§ 135.) It was also alleged that he had a prior serious felony conviction for robbery, which constituted a "strike" within the meaning of the "three-strikes" law. (§ 667, subds. (b)-(i).)

Defendant appeals from the judgment entered after a jury convicted him of all counts, and the trial court found true the "strike" allegation. The court sentenced defendant under the "three-strikes" law to 10 years and 4 months in prison, with a concurrent 90-day jail term for the misdemeanor conviction.

On appeal, defendant claims the prosecutor violated his right to a fair trial by relying on and failing to correct demonstrably false testimony. He claims the trial court erred in instructing the jury not to consider why codefendant Tinsley dropped out of the case or whether she will be or has been prosecuted. He claims the trial court gave erroneous instructions on aiding and abetting and inadequate instructions on concealing or destroying evidence and erred in failing to instruct on attempting to conceal or destroy evidence. He also claims the court committed sentencing errors in doubling each consecutive sentence, imposing a one-year prison term enhancement, failing to stay the sentences for four of the forgery convictions, and basing the consecutive sentences on an improper circumstance.

Defendant also claims that defense counsel failed to provide effective assistance in numerous ways. He claims there is insufficient evidence to support his conviction for concealing or destroying evidence. He claims the "three-strikes" law was improperly enacted as urgency legislation, violates his right to equal protection because it reduces the amount of conduct credit he can earn, and was inapplicable because his prior conviction predated its enactment. Last, he claims the matter must be remanded for resentencing because the trial court erroneously believed it lacked discretion to strike his prior conviction.

We reverse defendant's misdemeanor conviction for concealing or destroying evidence. We also vacate the judgment and remand the matter for the court to consider whether to exercise its discretion to strike defendant's prior conviction. If it chooses to do so, then it shall resentence defendant; if it elects not to do so, then it shall reinstate the judgment as modified.

II. Facts

On the evening of July 13, 1994, defendant and Tinsley went shopping at the Stanford Mall. At about 7:40 p.m., they stopped at Lady Foot Locker. According to Jocelyn Dufresne and Sherry Wyatt, who work there, Tinsley went to the "shoe wall" and selected a pair of $92 Air Max Triax running shoes. She asked to pay for them with a $100 American Express traveler's check. She also asked defendant if she should buy a Nike shirt. He said, " 'If you want it, get it.' " Tinsley took out another check, and they appeared to argue over who should sign the checks. She pushed them to him, but he refused and pushed them back. Wyatt said Tinsley looked surprised when asked for a driver's license. She produced it, and Dufresne showed her where to sign the checks. Dufresne was certain the checks were presigned. Both checks were numbered 235. The total bill was $112.57, and Defresne gave Tinsley $87.43 in change, which, according to Wyatt, defendant grabbed from her. Both left looking happy.

Dufresne thought it strange a local person would use traveler's checks and not know where to sign them. Also, the checks felt strange and had the same number. She phoned American Express, and security personnel had her test for counterfeits. The checks failed, and Dufresne called security and the police.

Meanwhile, defendant and Tinsley entered The Athlete's Foot, staffed by April Gordon. At about 8 p.m., Tinsley bought a Nike hat defendant wanted and paid with a presigned $100 traveler's check, number 226.

From there, defendant and Tinsley went to the Gap, which has two levels. On the lower level, Tinsley bought a pair of shorts for $21.64 from salesperson Kimberly Ventre using a presigned $100 traveler's check, number 226. Ventre gave Tinsley $78.36 in change. On the upper level, Tinsley bought a $19 vest from salesperson Katherine Bush. She said it was a present for her sister and asked for a gift box. She paid with a presigned $100 traveler's check, number 226. Bush gave Tinsley $78.36 in change. Defendant and Tinsley left around 8:22 p.m.

After the Gap, it was Armani Exchange. Defendant selected a pair of jeans and a shirt for himself and Tinsley paid $80.11, using a presigned $100 traveler's check, number 235, and $.11 from defendant. Tinsley told the salesperson Carol Choi the items were a present for defendant. The two shoppers left the store and went to a car. ²

Alerted by the call from Dufresne, mall security observed Tinsley and defendant exit the shopping center. Tinsley was aware they were being followed. Officer Cynthia Gill-Blanco of the Palo Alto Police Department saw mall security following Tinsley's car and then took over the pursuit. Before stopping it, she saw defendant throw a wad of paper out onto the street. Defendant and Tinsley were arrested after the stop. Police recovered the wad of paper, which turned out to be torn pieces of traveler's checks. In Tinsley's car, Gill-Blanco found all of the merchandise and sales receipts. Tinsley had no money on her person. Defendant was carrying $603 in cash, some of it in three groups of folded bills, whose amounts corresponded to the change given Tinsley after the two Gap sales and the Lady Footlocker sale. Later, at the police station, defendant said that $197 of the money was his and asked when he could have it back.

Officer Paul Van Dalen interviewed defendant at the station. At that time, defendant said a friend named Kevin Shauffner gave him the traveler's checks to pay off a debt. Defendant could not remember what the debt was for. Nor could he provide Van Dalen with any information about Shauffner. He said he had Tinsley sign them because he did not have any identification. Although he denied knowing the checks were counterfeit, he admitted thinking the checks were the reason police stopped him and Tinsley. He declined to elaborate further.

Van Dalen asked why defendant had Tinsley use a $100 check to buy a $9.99 hat instead of paying with change from the previous purchase. He gave no reason. When asked why he used a new check for every purchase, he said he wanted to get rid of them. He did not elaborate on this, nor was he asked to do so.

Van Dalen took notes during the interview, prepared a report, and then destroyed his notes. The next day, after reading Van Dalen's report, Officer Mark Wynne interviewed defendant. He said Tinsley picked him up and invited him to go shopping. They went to five stores, and he hung around while she bought things for him and herself. She paid with traveler's checks, and when people began to examine them closely, he realized something was "wrong."

Defendant told Wynne he had lied to Van Dalen about getting the checks from a friend, explaining that he did not like Van Dalen and wanted to help Tinsley. He really knew nothing about the checks except that Tinsley had them with her. He said he was also trying to help her when he tore up the remaining checks and discarded them. He said he suspected something was wrong.

Walter Green was in custody on July 13 and shared a jail cell with defendant. According to Green, defendant said he had been arrested for passing counterfeit American Express traveler's checks. Green explained that defendant said he had ten $100 original checks, from which he made $50,000 worth of copies using a "laser printer" that he and a woman named Tinsley knew about. Defendant kept the originals and copies somewhere in his mother's house. Green further explained that defendant would have three girls, including Tinsley, buy inexpensive merchandise, which they could keep, and he would take the change. Defendant told Green checks were passed at a Blockbuster Video, a Foot Locker, and a Safeway. Defendant also mentioned the San Antonio Shopping Center and Stanford Shopping Center, where he was caught. He bragged of making up to $6,000 per day with this scam.

Green said that defendant was "stressed out" and seemed "desperate," constantly phoning people to find Tinsley because she knew the whole scam and he wanted to coordinate their stories. Defendant said Tinsley had nothing to lose because she had no criminal record and therefore she should take "the rap." Green also said defendant called a man named Tozier, which he referred to as a "street name." According to Green, defendant told Tozier to pick up some checks from his mother's house. He then called his mother to inform her that someone was coming to pick them up.

Green said he did not talk to the district attorney about his testimony, no one had asked him to testify, and no one had promised him anything for testifying. He had served his time for the crime he was in custody...