Filed 9/24/26 P. v. Dixon CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F089817
Plaintiff and Respondent,
(Super. Ct. No. CF93485197)
v.

DEMETRIUS DEON DIXON,
OPINION
Defendant and Appellant.

APPEAL from orders of the Superior Court of Fresno County. Jonathan M.
Skiles, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Amanda D. Cary and
Hannah Janigian Chavez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 In 1993, Appellant Demetrius Deon Dixon was convicted by jury of first degree
murder (Pen. Code,1 § 187, subd. (a)) with a robbery-murder special circumstance
(§ 190.2, subd. (a)(17)), robbery (§§ 211/212.5, subd. (b)), and an enhancement for the
personal use of a knife (§ 12022, subd. (b)(1)). He was sentenced to life without the
possibility of parole plus one year.
Dixon filed a petition for resentencing under former section 1170.95, now
renumbered as section 1172.6, seeking to vacate his murder conviction. Following
extensive appellate proceedings, the trial court held an evidentiary hearing on Dixon’s
petition, ultimately concluding that he was ineligible for resentencing relief.
While his section 1172.6 petition was pending, Dixon also filed a request under
section 1172.1 inviting the court to recall his sentence and impose a mitigated prison
term. The court denied that request. Dixon now appeals from the denial of both orders.
We reach the following conclusions: First, the trial court’s order denying Dixon’s
request for recall of his sentence, filed under section 1172.1, is not an appealable order.
The trial court did not deny Dixon’s request on the merits, nor did it take any significant
procedural steps to make a merits-based decision on the request. Second, because Dixon
failed to raise any cognizable claims with respect to the denial of his petition for
resentencing under section 1172.6, we conclude that dismissal of the appeal is
appropriate under the circumstances. We therefore dismiss the instant appeal.
PROCEDURAL HISTORY2
In 2019 and 2022, Dixon filed petitions seeking resentencing under former section
1172.6, which were denied.

1 All undefined statutory citations are to the Penal Code unless otherwise indicated.
2 We have omitted recitation of the facts underlying Dixon’s conviction as they are
not relevant to the issues raised on appeal.

2.
 On September 24, 2024, following a lengthy course of appellate proceedings, this
court remanded Dixon’s case back to the lower court for further proceedings, including
the issuance of an order to show cause and an evidentiary hearing (§ 1172.6, subd. (d)).
(People v. Dixon (Sept. 24, 2024, No. F087098) [nonpub. opn.].)
On August 9, 2024, Dixon filed a separate request inviting the trial court to recall
his sentence under section 1172.1, and to impose a mitigated prison term.
On March 7, 2025, following an evidentiary hearing, the trial court denied Dixon’s
section 1172.6 petition. At the conclusion of the hearing, the trial court set a “Case
Status date set [on April 1, 2025] to determine if the 1172.1 petition still needs to be
addressed.” The court ordered the California Department of Corrections and
Rehabilitation to allow Dixon to appear by Zoom. That hearing never occurred.
On March 10, 2025, the court issued a written order denying Dixon’s section
1172.1 petition. The court’s order explained that Dixon’s request was made well beyond
120 days after Dixon’s commitment and was not based upon a recommendation from the
Secretary of the Department of Corrections and Rehabilitation or the Board of Parole
Hearings.
On March 17, 2025, trial counsel for Dixon filed motions requesting the trial court
reconsider the denial of his section 1172.6 petition and his section 1172.1 request for
recall of his sentence.3
On April 29, 2025, the trial court denied reconsideration of its ruling on Dixon’s
section 1172.6 petition.4
Dixon appealed thereafter.

3 Trial counsel was appointed to represent Dixon on his section 1172.6 petition for
resentencing, but the record contains no indication as to how counsel came to represent
Dixon on his section 1172.1 request.
4 The record does not contain any indication that the court addressed counsel’s
request for reconsideration on Dixon’s section 1172.1 petition.

3.
 Dixon’s Section 1172.6 Evidentiary Hearing
Following an evidentiary hearing, the court found that Dixon was ineligible for
resentencing relief under section 1172.6. According to the court, the evidence
demonstrated, beyond a reasonable doubt, that Dixon was the actual killer, and that he
had also acted as a major participant with reckless indifference to human life in the
commission of the robbery.
At the end of the hearing, the court made the following comments, relevant to the
instant appeal:
“THE COURT: Well, I was hesitant about whether or not to say this,
because, Mr. Dixon, I’ve been around a lot of individuals involved
in homicide cases. If I was king of the world and writing the law,
there would be something that would allow for you to demonstrate
what I believe to be rehabilitation and have that sentence mitigated.
[¶] I’m not a legislator. I am also obligated to follow the law that’s
in front of me. I will simply tell you, I find you to be extremely
impressive. I think your command of the law was on par with
people that regularly practice the law. If I had an avenue to
somehow shave some off of what you’re dealing with, I would
seriously consider it. But that’s not something that’s in front of me.”
DISCUSSION

The Trial Court’s Order Denying Dixon’s Request to Recall His Sentence
(§ 1172.1) is Not Appealable
“Effective January 1, 2024, Assembly Bill 600 amended section 1172.1 to expand
a trial court’s authority to recall and resentence on its own motion. [Citations.] Now, a
court may recall a sentence and resentence a defendant on its own motion ‘at any time if
the applicable sentencing laws at the time of original sentencing are subsequently
changed by new statutory authority or case law.’ ” (People v. Brinson (2025) 112
Cal.App.5th 1040, 1046.)
“A defendant is not entitled to file a petition seeking relief from the court under
this section. If a defendant requests consideration for relief under this section, the court is
not required to respond.” (§ 1172.1, subd. (c).) Section 1172.1, subdivision

4.
(c) “expressly denies defendants the right to file a petition for resentencing under that
section, and expressly excuses the trial court from acting on any such request that a
defendant might nevertheless file.” (People v. Hodge (2024) 107 Cal.App.5th 985, 993.)
A defendant-initiated petition “is best viewed as merely inviting the court to consider
whether it wishes to exercise its discretion under section 1172.1.” (People v. Roy (2025)
110 Cal.App.5th 991, 999.)5
“[A] trial court’s decision not to act on a defendant’s section 1172.1 request for
recall and resentencing does not affect [the defendant’s] substantial rights and is therefore
not appealable under section 1237, subdivision (b).” (People v. Brinson, supra, 112
Cal.App.5th at p. 1047; accord, People v. Faustinos (2025) 109 Cal.App.5th 687, 695–
696.) Such an appeal will be dismissed. (People v. Roy, supra, 110 Cal.App.5th at p.
1001.)
A trial court’s actions on a section 1172.1 request for recall of a sentence may
however render the resulting order appealable. In People v. Olea (2025) 115 Cal.App.5th
889, the appellate court held the trial court’s order denying the defendant’s section
1172.1 petition was appealable based on “the entirety of the actions taken by the trial
court following [the defendant]’s initial petition—in conjunction with merit-based
statements made at the contested final hearing, the trial court effectively evaluated and
denied [the defendant]’s petition on the merits, thus affecting Olea’s substantial rights.”
(People v. Olea, supra, at p. 902.) The Court of Appeal found significant that the trial
court appointed Olea counsel at Olea’s request, ordered the release of subpoenaed records
from the California Department of Corrections and Rehabilitation to the defense, ordered
the defense to provide copies of these records to the People, and set a contested hearing at
Olea’s request at which the defendant appeared remotely. (Id. at p. 901.) The Olea court

5 For this reason, we refer to a self-initiated petition for recall under section 1172.1
as a request for recall throughout this opinion.

5.
also found it significant that “after providing both sides an opportunity to be heard at a
contested hearing ... at which [the defendant] was present, the trial court reached the
merits of why it was, in part, declining to grant the request under section 1172.1 by
stating it found the original sentence to be appropriate, particularly given the crimes [the
defendant] committed against [the victim].” (Id. at p. 902.)
Likewise, in People v. Craig (2026) 117 Cal.App.5th 1165 (Craig), the Court of
Appeal concluded the superior court’s order denying a self-initiated petition for
resentencing affected the petitioner’s substantial rights. (Id. at p. 1173.) The appellate
court explained that the superior court did not simply issue an order declining to consider
the unauthorized section 1172.1 petition. Rather, it “took most of the same procedural
steps the superior court in Olea [had]” and it “considered and denied Craig’s request for
resentencing on the merits, thus affecting his substantial rights.”2 (Craig, at pp. 1173–
1175.) The Craig court further held the superior court’s ruling was erroneous.
Specifically, the court erroneously concluded a defendant is not entitled to relief under
section 1172.1 because the defendant is bound by their plea agreement. However, section
1172.1 expressly authorizes the trial court to resentence defendants that were convicted
by plea. (Craig, at p. 1176.)
The distinction between these lines of authority appears to turn on the actions the
superior court takes after the section 1172.1 request for recall is filed, and whether the
court reaches the merits of that request. To that end, we find the instant case
distinguishable from Olea and Craig. Although the trial court denied Dixon’s request,
citing the passage of time since he had begun serving his sentence and the fact that
Dixon’s request was not generated by any qualifying authorities, the court did not make a
discretionary ruling, nor did it comment on the merits of Dixon’s request. Further, unlike

6.
Olea and Craig, the court undertook no further steps to consider the merits of Dixon’s
request, such as holding a contested hearing to consider the merits of the request.6
We acknowledge the court’s stated rationale for denying Dixon’s request was
either erroneous or incomplete. Section 1172.1 authorizes the trial court to recall a
sentence, beyond the 120 days of their date of commitment, at any time if there has been
an intervening change in the law since the defendant was originally sentenced. (§ 1172.1,
subd. (a)(1).) The trial court’s order here does not address whether there were any
applicable changes in the law which might have authorized recall of Dixon’s sentence.
But that does not transform the denial of Dixon’s request into an appealable order.
“ ‘[A]ppealability depends upon the nature of the decision made, not the court’s
justification for its ruling.’ ” (People v. Faustinos, supra, 109 Cal.App.5th at p. 698; see
also People v. Gallardo (2000) 77 Cal.App.4th 971, 985.) Here, the trial court declined
to exercise its recall authority and did not undertake a merits-based evaluation of Dixon’s
request.
Dixon asserts that the instant appeal “is not an appeal from a self-initiated request
for resentencing; this is an appeal based on the court’s denial of [Dixon’s] section 1172.6
petition, during which the court spontaneously made statements reflecting its apparent
unawareness that it could recall and resentence [him] to a sentence less than LWOP on its
own initiative.” He further argues the court’s comments suggest it mistakenly believed
section 1385.1 constrained its resentencing authority. We find his assertion unpersuasive
for two reasons.
First, Dixon attempts to bootstrap appellate review of this trial court’s handling of
his section 1172.1 request onto his appeal from the order denying his section 1172.6

6 While the court scheduled a status hearing on Dixon’s request, that hearing never
occurred. The trial court’s order of denial was filed three days after setting the hearing.
Thus, the court did not take any significant procedural steps mirroring those rights
afforded to a petitioner after a resentencing request has been initiated by one of the
enumerated agencies in section 1172.1, subdivision (b)(1).

7.
petition. But the trial court’s comments during the section 1172.6 hearing do not
transform the subsequent order denying Dixon’s section 1172.1 request into an
appealable order.
Second, even assuming the trial court misunderstood the scope of its resentencing
authority, that would not affect Dixon’s substantial rights. A defendant lacks the legal
authority to initiate a section 1172.1 proceeding or to obtain a ruling on a self-initiated
request for recall and resentencing under section 1172.1. (People v. Brinson, supra, 112
Cal.App.5th at p. 1049.)
As stated, appealability turns on the nature of the order made, not the court’s
reasoning or assumed legal premises. (People v. Faustinos, supra, 109 Cal.App.5th at p.
698 [the “court’s phrasing of an order can[not] convert a nonappealable order into an
appealable one”]; People v. Loper (2015) 60 Cal.4th 1155, 1158 [holding that a defendant
can appeal from a postjudgment proceeding that is properly initiated by government
authorities].)
Here, the court did not exercise its section 1172.1 recall authority or conduct a
merits-based resentencing determination. Rather, it denied relief on procedural grounds.
Accordingly, the order from which Dixon attempts to appeal is nonappealable.
Dixon alternatively requests that this court exercise its discretion to construe his
appeal as a petition for writ of mandate. But we are not persuaded that the circumstances
of this case are so exceptional that they should warrant exercising our discretion to treat
Dixon’s appeal as a writ petition.7 Other than the trial court’s comments at his section
1172.6 evidentiary hearing, commending Dixon for his post-incarceration rehabilitation
efforts, he identifies no circumstances which would support such relief. (People v. Hill
(2025) 116 Cal.App.5th Supp. 1, 9 [“Circumstances authorizing the treatment of an

7 We express no opinion regarding whether Dixon may pursue any other avenue of
relief, including the filing of a successive petition.

8.
appeal as a writ petition include uncertainty in the law respecting appealability [citation],
and the absence of an adequate remedy at law [citation].”)
Based on the foregoing, we conclude that Dixon’s appeal must be dismissed as it
is an appeal from a nonappealable order.8 In light of our conclusion, we need not and do
not address whether Dixon’s appeal was timely. Even a timely filed appeal cannot create
appellate jurisdiction over a nonappealable order.
DISPOSITION
Dixon’s appeal is dismissed.

FRANSON, J.
WE CONCUR:

DETJEN, Acting P. J.

SNAUFFER, J.

8 As stated, Dixon raises no claim of error with respect to the denial of his section
1172.6 petition for resentencing. We therefore conclude his appeal challenging the denial
of his section 1172.6 petition is abandoned. (In re S.C. (2006) 138 Cal.App.4th 396,
408 [“ ‘failure of [an] appellant to advance any pertinent or intelligible legal argument ...
constitute[s] an abandonment of the [claim of error]’ ”].)

9.