Filed 6/30/26 In re Dixon CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
A173772
In re ROBERT JOE DIXON, JR.,
(Solano County
on Habeas Corpus. Super. Ct. No. FCR277399)
In this habeas corpus proceeding, Robert Joe Dixon, Jr. seeks to
overturn two 2012 convictions for attempted murder on the ground that his
jury was given a kill zone instruction invalidated by People v. Canizales
(2019) 7 Cal.5th 591 (Canizales). The Attorney General concedes that the
instruction given was “functionally identical” to the instruction disapproved
in Canizales but argues that, unlike in Canizales, it was not reasonably likely
that the jury misunderstood the instruction because the prosecutor correctly
argued the kill zone theory. Alternatively, the Attorney General argues that
any error was harmless beyond a reasonable doubt. (Chapman v. California
(1967) 386 U.S. 18.) We conclude that the jury was not properly instructed
on the kill zone theory but that the error was not prejudicial. Accordingly, we
deny the petition.
BACKGROUND
In January 2012, Dixon was convicted of assault with a firearm on
Samuel King (Pen. Code, § 245, subd. (a)(2)) (count 1); first-degree murder of
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Kevin Domino (§ 187, subd. (a)) (count 2); premeditated attempted murder of
Kristopher Battle and Jamal Williams (§§ 187, subd. (a), 664) (counts 3 and
4, respectively); shooting at an inhabited dwelling (§ 246) (count 5); and
various firearm enhancements. Dixon was sentenced to prison for a
determinate term of 24 years, 4 months, on counts 1 and 5, and an
indeterminate consecutive term of 110 years to life, plus four life terms with
possibility of parole, on the remaining three counts. (People v. Dixon
(A140051, Oct. 3, 2017) [nonpub. opn.].)
In this court’s prior decision affirming Dixon’s convictions, we
summarized the relevant facts as follows:
“In February 2010, defendant was dating a woman named Denitrice
Thomas, who lived in the Parkway Gardens complex in Fairfield. Defendant
sold marijuana, and he kept marijuana and money at Thomas’s residence.
One Friday evening, Thomas was the victim of a home invasion. Three men
wearing hoodies broke into Thomas’s residence while Thomas was there with
two friends and stole various items, including a laptop computer and a video
game console. Thomas had more than $1,000 in cash belonging to defendant
in her apartment at the time and marijuana. She called defendant right
away to tell him about the incident. Defendant responded that he would find
out who did it and take care of it.” (People v. Dixon, supra, A140051 at p. *2.)
On February 9, 2010, “Jamal Williams, his cousin Kevin Domino, and
Kristopher Battle were outside the Parkway Gardens complex where
Williams’s grandmother lived, drinking and listening to music. Thomas
pulled up in a car with defendant in the passenger seat, and defendant called
Williams over to talk. Defendant asked Williams whether he knew anything
about the home invasion, but Williams did not offer any information and
suggested defendant might have to pay for information. Defendant
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reportedly became upset, pulled a gun, began waving it around, and said ‘I
got it for whoever wants it’ or words to that effect. Frightened by this
behavior and concerned Williams might also have a gun, Thomas drove off.
“As Thomas drove, defendant made a telephone call and Thomas heard
him say, ‘These guys know something’ and ‘we got to take care of this.’
Thomas and defendant then picked up co-defendant Raymon Sellers, and
defendant handed Sellers a (second) gun. Shortly afterward, defendant
directed Thomas to drive back towards the Parkway Garden complex. On the
way, Williams telephoned Thomas, but defendant took the phone, and began
arguing with Williams. Eventually, defendant had Thomas pull into a
parking lot at one end of the Parkway Garden complex. He and Sellers got
out of the car, leaving their hats and other personal items, but carrying the
guns, and took off running.
“During this period, Williams, Domino, and Battle had remained
outside Williams’s grandmother’s residence. Suddenly, they heard gunshots.
Williams was near the door of the residence and dove inside, escaping injury,
although one bullet hit a washing machine inside the dwelling. Battle was
shot, but managed to run from the scene, and survived. Domino was shot
and died at the scene.” (People v. Dixon, supra, A140051 at pp. *3–4.)1
DISCUSSION
I.
Dixon contends his attempted murder convictions must be reversed
because the jury was given a kill zone instruction that the California
Supreme Court determined in Canizales, supra, 7 Cal.5th at pages 607 to 609
1 Samuel King was shot by Dixon on February 8. (People v. Dixon,
supra, A140051 at pp. *2–3.) The facts of the shooting are not relevant to
this proceeding. Dixon’s request for judicial notice of the records in appeal
numbers A169449 and A140051 is granted.
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to be legally inadequate. The jury was instructed pursuant to the then-
current version of CALCRIM No. 600 as follows: “As to Count 3, a person
may intend to kill a specific victim or victims and at the same time intend to
kill everyone in a particular zone of harm or ‘kill zone.’ In order to convict a
defendant of the attempted murder of Kristopher Battle, the People must
prove that the defendant not only intended to kill Jamal Williams but also
either intended to kill Kristopher Battle, or intended to kill everyone within
the kill zone. If you have a reasonable doubt whether the defendant intended
to kill Kristopher Battle or intended to kill Jamal Williams by killing
everyone in the kill zone, then you must find the defendant not guilty of the
attempted murder of Kristopher Battle.”
In Canizales, the jury was instructed with essentially the same version
of CALCRIM No. 600 given here. (Canizales, supra, 7 Cal.5th at p. 601 &
fn. 3.) The court explained that the instruction was flawed because it did not
adequately define the term “kill zone” and failed to direct the jury to consider
the circumstances of the attack in determining whether the defendant’s
attempt to kill everyone around the primary target was undertaken as a
means of killing the primary target. (Id. at pp. 607, 609.) The Court
explained that the kill zone theory “may properly be applied only when a jury
concludes: (1) the circumstances of the defendant’s attack on a primary
target, including the type and extent of force the defendant used, are such
that the only reasonable inference is that the defendant intended to create a
zone of fatal harm—that is, an area in which the defendant intended to kill
everyone present to ensure the primary target’s death . . . and (2) the alleged
attempted murder victim [who was a secondary target] was located within
that zone of harm. Taken together, such evidence will support a finding that
the defendant harbored the requisite specific intent to kill both the primary
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target and everyone within the zone of fatal harm.” (Canizales, supra,
7 Cal.5th at p. 607.) The court held that “when a kill zone instruction is
legally warranted and in fact provided, the standard instruction should be
revised to better describe the contours and limits of the kill zone theory as we
have laid them out here.” (Id. at p. 609.)
The court emphasized “that going forward trial courts must exercise
caution when determining whether to permit the jury to rely upon the kill
zone theory. Indeed, we anticipate there will be relatively few cases in which
the theory will be applicable and an instruction appropriate. Trial courts
should tread carefully when the prosecution proposes to rely on such a
theory, and should provide an instruction to the jury only in those cases
where the court concludes there is sufficient evidence to support a jury
determination that the only reasonable inference from the circumstances of
the offense is that a defendant intended to kill everyone in the zone of fatal
harm. The use or attempted use of force that merely endangered everyone in
the area is insufficient to support a kill zone instruction.” (Canizales, supra,
7 Cal.5th at p. 608; see also People v. Mumin (2023) 15 Cal.5th 176, 193
(Mumin) [“The . . . commonplace act of firing one or a few shots at a group
may supply the actus reus for a number of crimes. But, standing alone, it
does not support a conclusion that the shooter intended to create a kill zone
around the primary target in order to ensure that the primary target will
die”].)
As amended after Canizales, CALCRIM No. 600 reads in relevant part:
“A person may intend to kill a primary target and also [a] secondary
target[s] within a zone of fatal harm or ‘kill zone.’ A ‘kill zone’ is an area in
which the defendant used lethal force that was designed and intended to kill
everyone in the area around the primary target.
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“In order to convict the defendant of the attempted murder of <insert
name or description of victim charged in attempted murder count[s] on
concurrent-intent theory>, the People must prove that the defendant not only
intended to kill <insert name of primary target alleged> but also either
intended to kill <insert name or description of victim charged in attempted
murder count[s] on concurrent-intent theory>, or intended to kill everyone
within the kill zone.
“In determining whether the defendant intended to kill <insert name or
description of victim charged in attempted murder count[s] on concurrent-
intent theory>, the People must prove that (1) the only reasonable conclusion
from the defendant’s use of lethal force, is that the defendant intended to
create a kill zone; and (2) <insert name or description of victim charged in
attempted murder count[s] on concurrent-intent theory> was located within
the kill zone.
“In determining whether the defendant intended to create a ‘kill zone’
and the scope of such a zone, you should consider all of the circumstances
including, but not limited to, the following:
“[• The type of weapon used . . .
“[• The number of shots fired . . .
“[• The distance between the defendant and <insert name or
description of victim charged in attempted murder count[s] on concurrent-
intent theory> . . .]
“[• The distance between <insert name or description of victim charged
in attempted murder count[s] on concurrent-intent theory> and the primary
target.]
“If you have a reasonable doubt whether the defendant intended to kill
<insert name or description of victim charged in attempted murder count[s] on
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concurrent-intent theory> or intended to kill <insert name or description of
primary target alleged> by killing everyone in the kill zone, then you must
find the defendant not guilty of the attempted murder of <insert name or
description of victim charged in attempted murder count[s] on concurrent-
intent theory>.]”
In In re Rayford (2020) 50 Cal.App.5th 754, 770, disapproved on other
grounds in Mumin, supra, 15 Cal.5th at page 203, the court held that
Canizales applies retroactively to cases that were final when the decision
issued because it substantively changed the law on the kill zone theory.
In Mumin, supra, 15 Cal.5th at page 200, the court reiterated that in
deciding whether to give the instruction, the trial court considers whether
substantial evidence exists from which the jury could draw the required
inference—that the only reasonable conclusion from the defendant’s use of
lethal force, is that the defendant intended to create a kill zone. “If so, the
instruction is justified. Ultimately, it remains for the jury to determine
whether that inference is the only reasonable one. The trial court may not
preemptively substitute its view of the evidence for that of the jury.” (Ibid.)
In these proceedings, Dixon does not argue that the evidence was
insufficient to support the giving of the instruction. Nor does he dispute that
the instruction correctly required the jury to find either that he intended to
kill Battle or alternatively, intended to kill everyone within the kill zone. He
argues, however, that the instruction was legally inadequate because it did
not define the kill zone and did not require “the prosecution to prove that
‘ (1) the circumstances of the defendant’s attack on a primary target . . . are
such that the only reasonable inference is that the defendant intended to
create a zone of fatal harm.’ ” Without such language, Dixon suggests, “the
kill zone instruction is hopelessly inadequate and defective.”
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To determine whether this instruction was erroneous, we evaluate
whether there was a reasonable likelihood the jury understood the
instruction in a legally impermissible manner. (Mumin, supra, 15 Cal.5th at
p. 210; Canizales, supra, 7 Cal.5th at p. 613.) Canizales directs us to consider
both the language of the instruction and counsels’ argument to the jury.
(Canizales, at p. 613.)
Here, the prosecutor argued first that based on “the number of shots”
and where the victims and bullet casings were found, the jury could conclude
that Dixon and his co-defendant “went over to kill all of them.” Then she
argued, “Now, if you find, though, the jury instruction will tell you that, say
you think, ‘Well, he only—they only went over there really to kill Jamal,
because Jamal is the person who he had the beef with, because he didn’t like
the answer that he got from Jamal Williams . . ., the law tells you that even if
he went over there to kill Jamal, that they can still be convicted of attempted
murder of Kristopher Battle if you find that he intended to kill everyone in
this, like, basically, kill zone. If a defendant creates a kill zone, meaning, ‘I
don’t shoot somebody one time, but I continue to shoot and shoot and shoot at
the small little group and there’s three people in that group’, yeah, you can
assume they meant to kill everyone when they didn’t stop shooting, and
that’s exactly what occurred here, because of the number of shots in the little,
small vicinity of where they were at the time that all those shots were fired,
and you can infer that they intended to kill all three of them that were right
there.”
The Attorney General contends that there is no reasonable likelihood
that the jury understood the instruction in a legally impermissible manner
because the prosecutor in petitioner’s case correctly argued the kill zone
theory and “emphasized that the jury had to find that petitioner had to
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intend to kill everyone in the kill zone and directed the jury to consider the
evidence of petitioner’s attack in determining whether petitioner had
intended to kill everyone in that zone.” (Italics omitted.) The Attorney
General argues that “[t]he prosecutor’s argument, and the circumstances of
petitioner’s offense, removed any ambiguity in the instruction by
emphasizing that the jury must find that petitioner had intended to kill
everyone in the kill zone.” (Italics omitted.)
While the prosecutor correctly argued that the jury has to find that
Dixon had an intent to kill everyone in the kill zone and that the jury “can
infer” that intent from the circumstances of the shooting, the argument still
lacked the further qualification that such an inference is permissible only
where it is the only reasonable inference that can be drawn from the
circumstances of the shooting. In Canizales, supra, 7 Cal.5th at pages 606 to
607, the court expressly addressed this issue. The Court explained that while
CALCRIM No. 225 properly instructs on the use of circumstantial evidence to
establish intent,2 “[a]s past cases demonstrate . . . even when a jury is
otherwise properly instructed on circumstantial evidence and reasonable
doubt, the potential for misapplication of the kill zone theory remains
troubling.”
Accordingly, the instruction given in this case, even in the context of
the prosecutor’s argument, was legally inadequate insofar as it failed to
2 CALCRIM No. 225 instructs that circumstantial evidence may
support required intent if “the only reasonable conclusion supported by the
circumstantial evidence” is that defendant had the required intent, and that
jury must conclude intent was not proved when there are “two or more
reasonable conclusions from the circumstantial evidence, and one of those
reasonable conclusions supports” a determination that defendant did not
have the required intent.
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advise the jury of all the limitations on the use of circumstantial evidence to
infer intent within the context of the kill zone theory.
II.
Because the jury was instructed on two alternate theories of liability,
one legally valid (intent to kill) and one legally invalid (kill zone/concurrent
intent to kill), “[t]he Attorney General bears the burden of showing that the
error was harmless beyond a reasonable doubt.” (In re Lopez (2023)
14 Cal.5th 562, 585 (Lopez); Mumin, supra, 15 Cal.5th at p. 207.) To find the
error harmless, this court must conclude that “any rational jury would have
found the defendant guilty based on a valid theory if the jury had been
properly instructed.” (Lopez, at pp. 584–585.)
A.
Any error in the kill zone instruction was not prejudicial as to Dixon’s
conviction on count 4 for the attempted murder of Williams. The instruction
given in this case did not permit the jury to decide guilt based on the kill zone
theory as to Williams. It specifically says it applies “as to count 3.”
Moreover, the jury was instructed that Williams was the primary target of
any “kill zone,” and that the jury had to find that defendant intended to kill
the primary target. Accordingly, Dixon could not have been prejudiced as to
the count involving Williams.
B.
For different reasons, the error was not prejudicial as to Dixon’s
conviction under count 3 of the attempted murder of Battle. The Attorney
General contends that the error was harmless because “[t]he prosecutor’s
argument made clear that Battle had to be within the kill zone” and that “the
evidence was overwhelming that petitioner had intended to kill Battle.” The
Attorney General argues that Dixon “had a motive to attack the group for
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having robbed Thomas, had prior contact with the group, and had arranged
to return to the group with two other people and guns, shooting more than a
dozen times at the front porch where the three victims were sitting. The
bullets all struck nearby, including one that killed Domino and another that
hit Battle. . . . In light of that overwhelming evidence that petitioner had
intended to kill all three people in the small area of the porch, no rational
properly instructed jury would have acquitted petitioner.” Dixon contends,
however, that conflicts in the evidence as to the victims’ locations and his
ability to see all of the victims create a reasonable doubt as to whether he
intended to kill all three men. He suggests that the trial evidence also
supported a reasonable alternative inference that he intended to kill only
Williams, but in carrying out that intent he callously and recklessly
endangered others.
Neither party cites to the trial transcript in a manner that would guide
an “ ‘exhaustive[ ] review[ ]’ of the trial evidence” required by this court. (See
Lopez, supra, 14 Cal.5th at p. 590, fn. 8; see also id. at p. 568 [“a court’s
analysis of whether the evidence is ‘overwhelming’ in this context is not as
subjective or free-ranging as that term might imply. Instead, the analysis
requires a court to rigorously review the evidence to determine whether any
rational juror who found the defendant guilty based on an invalid theory, and
made the factual findings reflected in the jury’s verdict, would necessarily
have found the defendant guilty based on a valid theory as well”].)
Nonetheless, having undertaken our own examination of the trial record, we
conclude that a rational jury, which found Dixon guilty under the
instructions given, necessarily would have found him guilty had it been
properly instructed.
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Initially, we acknowledge that the trial evidence is inconclusive
regarding Dixon’s motive. In the direct appeal, this court found that “there
was evidence suggesting defendant had a motive to kill all three men—
Williams, Battle and Domino—because he suspected they were involved in
the robbery at Thomas’s apartment” and that he said that “these guys”—not
just Williams—knew something about the prior break-in. (People v. Dixon,
supra, A140051 at pp. *57–58.) However, as Dixon argues, the trial
testimony shows that before the shooting he spoke only to Williams while in
the car and Williams called Thomas on the phone afterward and said, “what’s
your problem bringing this dude with this gun up to us?” A police witness
testified that Dixon reported hearing Williams tell Thomas on the phone
something like, “Tell your boyfriend he better not come back over here.”
Williams’s grandmother was Thomas’s neighbor. Williams testified that he
saw Thomas and Dixon the morning of the day that the robbery occurred. In
closing arguments, the prosecution emphasized that during Dixon’s
conversation with Williams before the shooting, Dixon said “ ‘I know you
know what happened. You live right here []. You live right in back of us.’ ”
Finally, the kill zone instruction identified Williams as the target. Based on
this evidence, a reasonable jury could have concluded either that Dixon
specifically intended to kill all three men or that Williams was Dixon’s target.
Accordingly, we do not believe that the motive evidence alone is
determinative of prejudice in this case.
In his direct appeal, Dixon identified as a central dispute “whether
there is substantial evidence that all three alleged victims in counts 2, 3 and
4 (Domino, Battle, and Jamal Williams) stood together at the porch when the
gunshots were fired, a claim the People make as essential to their ‘kill zone’
theory.” The closing arguments indicate, however, that this was not a central
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dispute at trial. As set forth above, the prosecutor argued that all three men
were in a “small little group” or all in the same “little, small vicinity.”
Defense counsel did not dispute this characterization in closing and touched
on the kill zone instruction only very briefly.
At trial, Battle testified that, in front of the home, there is grassy area
with a walkway and “a step up” to what Battle described as a porch. Battle
testified that Williams and Domino were standing next to each other at the
time of the shooting. Williams was on the porch and Domino was on the
walkway in the front area next to the door. It is difficult to determine from
Battle’s testimony where he was standing, other than it was in the grassy
area by the walkway. When he heard the gunshots, he ducked and ran away
from the home, at which time he could still see Domino in his peripheral
vision but not Williams.
Williams testified that he was on the concrete, one step from the front
door of the residence, when he heard the gunfire. Domino “was trailing,
coming from the vehicle” but “about at the front door” and Battle was right
next to Williams. After the shooting, he looked out the front door and he saw
Domino’s shoe “right in front of the door.” Domino’s body was lying in the
grassy area outside the door.
Police witnesses testified to finding bullet holes in the front wall of the
residence, near the security screen door, a couple near a window, one in a
door frame, and some inside the home. The crime investigator testified that
after Domino’s body was removed, his jacket and some medical-type
instruments were photographed “directly in front of the apartment.”
Battle testified that the lighting was “not very good” near where the car
was parked but that the residence had a light and there was a street light
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nearby. Williams testified that it was “dark, pitchy-dark, black” at the time
of the shooting but also that there was a light over the residence.
In Dixon’s direct appeal, this court reviewed this evidence and
concluded that “[a]lthough not entirely clear,” the testimony relied on by
Dixon “does not establish that Battle stood significantly apart from the other
two men.” (People v. Dixon, supra, A140051 at pp. *66–67.) We agree. With
respect to the lighting at the time of the shooting, this court concluded:
“Although defendant notes that it was dark outside, the residence had a light
and there was a street lamp. Defendant does not dispute that Williams was
visible standing outside the residence and, if Williams was visible, the jury
could infer his two companions were visible as well.” (People v. Dixon, at
p. *58.) Again, we agree.
On this evidence, a rational jury would have found Dixon guilty of the
attempted murder of Battle even if the instruction had included the
additional requirement that the only reasonable inference from the
circumstances of the offense is that Dixon intended to kill everyone in the
zone of fatal harm. The jury instruction now identifies several circumstances
which may be considered in determining whether a defendant intended to
create a kill zone, including the type of weapon used, the number of shots
fired, the distance between the defendant and the victim and the distance
between the victim and the target. The evidence on these factors is, as set
forth above, not in conflict and points to a single, rational inference.
Accordingly, we find the instructional error harmless.
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DISPOSITION
The petition for habeas corpus is denied.
GOLDMAN, J.
WE CONCUR:
BROWN, P. J.
MOORMAN, J. *
*Judge of the Mendocino Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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