P. v. Nixon
Filed 12/3/09 P. v. Nixon CA5
NOT TO PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. DELMAR JEWELL DIXON, JR., Defendant and Appellant. | F057172 (Super. Ct. No. F08905433) OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Rosendo Pea, Judge.
Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
PROCEEDINGS
On August 21, 2008, appellant, Delmar Jewell Dixon, Jr., was charged in a felony complaint with three counts of robbery (Pen. Code, 211, counts one, two, & three),[1]three counts of assault with a firearm ( 245, subd. (a)(2), counts four, five & six), and giving false information to a peace officer ( 148.9, subd. (a), count seven). The robbery allegations each alleged that Dixon personally used a firearm in the commission of the offense ( 12022.53, subd. (c)). The assault with a firearm allegations alleged a personal gun use enhancement ( 12022.5, subd. (a)).
On December 10, 2008, Dixon entered into a plea agreement in which he would plead no contest to counts one and two and he would admit the gun use enhancements alleged as to those counts. Dixon would receive a two-year sentence on count one and a sentence of 20 years for the gun use enhancement. His sentences on count two and the enhancement alleged therein would be identical, but Dixon would serve them concurrently. The remaining allegations would be dismissed. Dixon executed an advisement of rights, waiver, and plea form for felonies (plea form) acknowledging the terms of the plea agreement and his constitutional rights pursuant to Boykin/Tahl.[2]
Dixon acknowledged the consequences of his plea and waived his constitutional rights in the plea form. Dixons counsel executed a statement that he had reviewed the plea form with his client, explained each of his clients rights to him, discussed his clients case with him, answered his clients questions, reviewed the consequences of the plea agreement, and discussed with Dixon the elements of the charged offenses and possible defenses.
At the change of plea hearing on December 10, 2008, the trial court confirmed the terms of the plea agreement with Dixon and counsel. Dixon acknowledged executing the plea form and reviewing his rights with his attorney. The court reviewed the consequences of Dixons plea with him and he acknowledged giving up his rights as set forth in the plea form. The parties stipulated to a factual basis for the plea based on the police reports and video surveillance. Dixon pled no contest to counts one and two and admitted he personally used a gun as alleged in each count. The court granted the prosecutors motion to dismiss the remaining allegations.
On January 9, 2009, Dixon was sentenced to prison for 22 years on count one and the gun use enhancement pursuant to the terms of the plea agreement. He was given concurrent sentences on count two and the gun use enhancement alleged therein. Dixon filed a timely notice of appeal, obtaining a certificate of probable cause.
FACTS
On August 1, 2008, Dixon entered Complete Auto Care on West Barstow Avenue in Fresno, displayed a semiautomatic handgun, and demanded money. An employee began looking for money, but panicked when he could not find it. Dixon began to wave the gun around and told the employee to hurry because he was not messing around. The shop owner arrived, saw Dixon with a gun, and ran to the back of the shop to tell another employee to call 911. The owner heard a gunshot and feared the first employee had been shot.
The owner approached Dixon and told him he could get the money. Dixon told the owner to hurry and then hit the owner on the head with the gun. The owner retrieved a money bag with $4,000 and gave it to Dixon. Dixon was seen leaving the scene in a Nissan Altima. A 9mm cartridge case was found at the scene.
Officers located the suspect car and followed it to a residence on Minarets. Dixon and his cousin were ordered out of the residence. Officers recovered a loaded .380- caliber pistol, a 9mm Baretta pistol between the mattresses of a bed, $457 in cash under a bed, and $3,603 in a box in the bathroom. Dixon identified himself to officers as Jamie Hill.
APPELLATE COURT REVIEW
Dixons appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Dixon was advised he could file his own brief with this court. By letter on August 4, 2009, we invited Dixon to submit additional briefing. To date, he has not done so.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.
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* Before Cornell, Acting P.J., Dawson, J., and Hill, J.
[1] Unless otherwise indicated, all statutory references are to the Penal Code.
[2]Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl).
