P. v. Dixon
Filed 1/30/14 P. v. Dixon CA3
NOT TO BE PUBLISHED
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
THIRD
APPELLATE DISTRICT
(Sacramento)
----
THE
PEOPLE,
Plaintiff and Respondent,
v.
SAMUEL
DIXON,
Defendant and
Appellant.
C073022
(Super. Ct. No. 12F03378)
A
jury convicted defendant Samuel Dixon of the unlawful possession of cocaine,
methamphetamine and marijuana while in state prison (Pen. Code, § 4573.6;
undesignated section references are to this code). In bifurcated proceedings, defendant admitted
a strike prior (1992 first degree murder) (§§ 667, subds. (b)-(i), 1170.12). The court imposed six years (the midterm of
three years, doubled for the strike prior) with one-third, or two years, to run
consecutively to defendant’s current sentence, an eight-year determinate term
and a 37 to life indeterminate term.
Defendant
appeals, contending insufficient
evidence supports his conviction for possession. We reject his contention and affirm the
judgment.
FACTS
Viewed
in the light most favorable to the jury’s verdict (People v. Johnson (1980) 26 Cal.3d 557, 576), the evidence adduced
at trial reflects the following. On October 28, 2011, Correctional Officer Burke Scruggs and Correctional Sergeant John
Zuber approached defendant who was standing in a sally port near a mechanical
room. Officer Scruggs ordered defendant
to submit to a search. Instead of complying with the order,
defendant turned and ran through the door to the mechanical room, ignoring Officer
Scruggs’s orders to stop and to get on the ground. Officer Scruggs saw that defendant had both
hands in front of him. Sergeant Zuber
observed defendant reach into the “waistband pocket area of his pants” as he
fled. Inside and towards the back of the
mechanical room, defendant tripped and fell face down onto the floor. Officer Scruggs held defendant while other
prison guards handcuffed defendant. After
defendant was under control, both Sergeant Zuber and Officer Scruggs observed a
civilian worker and another inmate in the rear of the room. Neither Sergeant Zuber nor Officer Scruggs
noted these people in their reports, concluding these people were not involved
in the incident. Sergeant Zuber retraced
defendant’s steps and found two cellophane wrapped bindles just inside the door
to the mechanical room. The bindles
contained controlled substances wrapped in smaller bindles: a total of 3.04 grams of cocaine base, 0.31
grams of methamphetamine, and 1.19 grams of marijuana, usable amounts of
each. No fingerprints were found on the
bindles.
Jamie
Agredano, a civilian maintenance mechanic, was inside the mechanical room
working with and supervising an inmate assistant. As they prepared to leave the room, an alarm
sounded which meant there was a fight or a chase. Agredano advised his inmate assistant to move
to the back of the room and to get down on the floor. Agredano walked towards the front of the room
and defendant ran past him, throwing “two white things” to the floor on his
right hand side. Agredano testified that
the two bindles were not on the floor prior to defendant being chased into the
room. Agredano also testified that his
inmate assistant did not throw the bindles onto the floor. Agredano admitted that as a result of an
accident he had memory problems.
Notwithstanding, he claimed he remembered the current incident
“vividly.”
Defendant
testified. He admitted five prior felony
convictions involving moral turpitude.
He denied that the bindles were ever in his possession. He denied throwing or ever seeing the bindles
in the mechanical room.
DISCUSSION
I
Defendant
contends insufficient evidence supports his conviction for possession since
Agredano had admitted memory problems, having no recollection of speaking with
a district attorney investigator just two months before trial, having left
tools twice at job sites in the prison, and having forgotten “until the last
minute” that he had to be in court to testify.
Defendant also claims Agredano’s testimony was inconsistent in part with
that of the prison guards.
The
court instructed the jury on the factors to consider in evaluating the
credibility or believability of a witness, including how well the witness was
able to remember, that testimony should not be automatically rejected “just
because of inconsistencies or conflicts,” noting that people forget or make
mistakes, and that the two people “may witness the same event yet see or hear
it differently.” The jury, which
determines the credibility of a witness, could reasonably conclude that Agredano
saw defendant throw the bindles onto the ground, considering that defendant
ignored the guard’s order to stop and submit to a search, Sergeant Zuber saw
defendant reach into his waistband for something, and defendant was not
credible in view of his numerous felony convictions involving moral turpitude;
substantial evidence supports defendant’s conviction. (People
v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
II
We
note an error in the trial court’s characterization of the sentence and the
resulting abstract of judgment. The
trial court orally imposed six years with four years stayed and two years to
run consecutive to defendant’s current sentence. Although reaching the correct result, the
sentence is more properly characterized as one-third the midterm of three years
(doubled to six), for a two-year consecutive sentence. The abstract of judgment form (CR-290.1)
improperly reflects a consecutive six-year sentence. The abstract of judgment form CR-290 should
be used in this situation, as it provides the one-third consecutive option that
the form CR-290.1 does not. We direct
the trial court to prepare a form CR-290 to reflect a one-third consecutive
sentence of two years for the drug
possession charge.
DISPOSITION
The
trial court is directed to prepare a corrected abstract of judgment to reflect
the one-third consecutive sentence and to forward a certified copy of the
corrected abstract of judgment to the Department of Corrections and
Rehabilitation. The judgment is
affirmed.
NICHOLSON , Acting P. J.
We concur:
ROBIE , J.
DUARTE , J.
