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NOT TO BE PUBLISHED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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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.
ALEXANDER REY DIXON
et al.,
Defendants and
Appellants.
C073800
(Super. Ct. No. 11F06831)
A jury convicted
defendants Alexander Rey Dixon and Francisco Javier Nunez of assault with a
deadly weapon, to wit, a sharp instrument, and by means of force likely to
produce great bodily injury while in state prison (Pen.
Code, § 4501;[1] count one) and possession of a sharp instrument while confined in
prison (§ 4502, subd. (a); Dixon, count two; Nunez, count three).
In bifurcated proceedings, the trial court found that each defendant had two strike priors. (§§ 667,
subds. (b)-(i), 1170.12.)
At sentencing on May 13, 2013, the trial court imposed a 25-year-to-life term on count one for
each defendant, to run consecutively to the term they were then serving. The court stayed (§ 654) a 25-year-to-life term on count
two (Dixon) and count three (Nunez).
Defendants appeal. Defendants contend they were entitled to be
sentenced on counts two/three under the Three
Strikes Reform Act of 2012 (§§ 667, 1170.12, 1170.126; Prop. 36, as
approved by voters, Gen. Elec. (Nov. 6, 2012); hereafter Three Strikes
Reform Act). The People concede. We agree and will remand for resentencing on
counts two and three. Defendant Dixon also contends that the trial court abused its discretion in failing
to strike one of his strike priors. We
reject this contention.
FACTS
On May 1,
2011, defendants Dixon and Nunez, inmates at a state prison, charged at inmate Lance
Melendez and repeatedly stabbed him on his head and upper body. Defendants did not comply with an order for
all inmates to get down. Officers fired
foam batons and one struck defendant Nunez who then got on the ground. An officer set off a dispersion grenade near
defendant Dixon and Melendez. Dixon then complied with the order to get down. A video recording showed only defendants were
involved in the assault. Two sharp metal
weapons were found in the area of the assault.
DISCUSSION
I
The Three
Strikes Reform Act amended sections 667
and 1170.12, limiting three strikes sentencing on a current conviction for a
serious or violent felony or where the prosecution pleads and proves certain
circumstances. The amendments became
effective November 7, 2012. Defendants were tried and
convicted after the effective date of the Three Strikes Reform Act so they are
not subject to 25-year-to life terms for convictions for felonies that are
neither serious nor violent. (
Yearwood (2013) 213 Cal.App.4th 161, 167-168.) Possession of a sharp instrument while in
prison is not a serious or violent felony.
(§§ 667.5, subd. (c), 1192.7,
subd. (c).) The prosecution did not
plead circumstances in connection with the possession offense to constitute an
exception to the new limit on a three strikes sentence. While the trial court properly sentenced
defendants on the assault offense under the three strikes scheme, the trial
court should have sentenced defendants under the second strike scheme for their
respective possession offenses (counts two/three). We will remand for resentencing on counts
two/three.
II
Defendant Dixon contends the trial court abused its discretion in denying his
request to strike a strike prior. (§ 1385; People v. Superior Court (
A trial court has the discretion to
strike a strike prior only if the defendant falls outside the spirit of the
three strikes law. (§ 1385; People v. Williams (1998)
17 Cal.4th 148, 161 (Williams).) The court “must consider whether, in light of
the nature and circumstances of his present felonies and prior serious and/or
violent felony convictions, and the particulars of his background, character,
and prospects, the defendant may be deemed outside the scheme’s spirit, in
whole or in part, and hence should be treated as though he had not previously
been convicted of one or more serious and/or violent felonies.” (Williams, at p. 161.)
We will not reverse the ruling on a Romero request for an abuse of
discretion unless the defendant shows the decision was “so irrational or
arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th
367, 377.) Reversal is justified where
the trial court was “not ‘aware of its discretion’ ” to strike a strike
prior or “considered impermissible factors” to support its refusal to do so. (Id. at p. 378.) But where the trial court “ ‘balanced the
relevant facts and reached an impartial decision in conformity with the spirit
of the law, we shall affirm the trial court’s ruling . . . ’
[citation].” (Ibid.)
In denying defendant’s request to
strike a strike prior, the trial court noted defendant Dixon’s criminal history and found that his record reflected “significant
criminal conduct that threatened the community” and that defendant Dixon was a “danger to the community.”
The court opined that defendant Dixon was attempting to kill the victim in the current case.
Defendant Dixon argues the trial court abused its discretion in denying his
request. He relies on People v.
Bishop (1997) 56 Cal.App.4th
1245 (Bishop), noting that his two
strike priors occurred in a single incident and, had a strike prior been
stricken, he would have still served a lengthy sentence. Such reliance is misplaced. Fifty-year-old Bishop was convicted of petty
theft with a prior theft-related conviction for shoplifting six videocassettes. He had three strike priors. Notwithstanding Bishop’s many convictions
since committing the strike offenses, the trial court dismissed two strike
priors, reasoning that the strike priors were remote in time (17 to 20 years
old), the current offense was nonviolent, and a 12-year sentence would keep
Bishop in prison for a significant period of time. (Id. at pp. 1247-1249, & fns. 1, 3.) Bishop affirmed, commenting: “Bishop is not a worthy member of society. . . . While the People and perhaps even this court
may be of the opinion that Bishop appears undeserving of leniency, the
paramount consideration is not what the prosecution, defense or appellate court
might conclude. Rather, what counts is
what the trial court in this case concluded, as expressed by the reasons it stated under
section 1385, subdivision (a). On this record, we cannot say that the trial
court’s decision to dismiss two of Bishop’s strikes in furtherance of justice
constituted an abuse of discretion.” (
at p. 1251.)
Here, the 25-year-old defendant Dixon had been an active gang member since the age of 15 years. He was adjudged a ward of the court when he
was 17 years of age for possession of a concealed firearm, a felony, and was
granted probation. Defendant was convicted
in 2007 of assault with a deadly weapon (§ 245,
subd. (a)(1)) with personal use of a firearm (§ 12022.5, subd. (a)). The offense was committed for the benefit of
the gang. (§ 186.22, subd. (b).) The probation report reflected that defendant
had flashed a gang sign at a nongang acquaintance with whom defendant had had
problems. Defendant pulled out a gun and
fired at the victim as he drove past, striking the trunk of the victim’s car. Defendant was sentenced to state prison for
an aggregate term of 22 years. Two years
before, defendant shot at a victim who caught defendant spraying graffiti on a
public wall. He was convicted of
carrying a concealed firearm (former § 12025,
subd. (b)(1)), committing the offense for the benefit of a gang (§ 186.22, subd. (a)), and was sentenced
to a four-year term to run concurrently to his 22-year term. Defendant admitted to the probation officer
that he had a lengthy juvenile record which included vandalism at 14 years of
age with 36 days in juvenile hall, grand theft auto and domestic violence at 15
years of age, and that he had 10 violations of probation for escape from
placement and theft. While in the Department of
Corrections and Rehabilitation since 2007, defendant had refused a direct order and possessed
contraband. The prosecutor reported that
since the current offense, defendant had twice participated in a riot. Defendant began using alcohol and marijuana
at the age of 13 years and methamphetamine at the age of 14 years.
Defendant Dixon is, as the trial court found, a “danger” to society. His criminal conduct, including his current
offense, in his relatively short life has been extremely violent and not remote
as in Bishop. The trial court concluded defendant Dixon was not deserving of leniency.
We do not find any abuse of discretion.
DISPOSITION
The sentences on
counts two (Dixon) and three (Nunez) are vacated and the matters are remanded to the
trial court for resentencing on those counts.
In all other respects, the judgments are affirmed.
BLEASE , Acting
P. J.
We concur:
ROBIE , J.
BUTZ ,
J.
[1] Undesignated section references are to the Penal Code.
