Opinion
A157244
02-19-2021
THE PEOPLE, Plaintiff and Respondent, v. REED BLAISE DIXON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 18NF014064A)
Following a court trial, defendant Reed Blaise Dixon was convicted of felony making a criminal threat and misdemeanor battery of an elder. The court also found true defendant used a deadly weapon while making the threat and that he had been convicted of two prior felonies. On appeal, defendant contends (1) his jury trial waiver was not knowingly and intelligently made, (2) there was insufficient evidence to convict him of making a criminal threat, and (3) the court erred in imposing fines and fees without first determining his ability to pay. We affirm.
Defendant also pleaded no contest to one count of transient violation of registration laws, a misdemeanor.
BACKGROUND
In 2018, defendant's father and his wife (stepmother) had defendant and his girlfriend over to their home for Thanksgiving dinner. After dinner, defendant and his girlfriend, who were homeless, planned to spend the night. Defendant went to sleep on the couch.
Stepmother later went into the living room, looking for her cell phone charger and awakened defendant when moving his pillow, "thinking [the charger] fell by his pillow." Defendant "jumped up and just went berserk, you know, crazy. Yelling, screaming because I woke him up he said." He called her "a fucking bitch," and then woke up his father.
Father encountered "an enraged son threatening to kill me, you know." Defendant told father "there was some problem with him and [stepmother.]" Father got up "and tried to calm [defendant] down. Tried to keep them apart," but defendant was in "an uncontrollable zone." Defendant was "raging and threatening."
Defendant was "angry, very angry" when he went back into the hallway, his father behind him. In the hallway, defendant repeatedly screamed at stepmother yelling, "I hate you. You are a fucking bitch. . . . What are you waking me up for. And I was asleep, you woke me up for a cord." Defendant then "punched" stepmother in the lip with a closed fist, and pushed her and father, causing them both to fall down. All the while, defendant was screaming that he "was going to kill" them and while waving his hands, knocked a picture frame off the wall. Defendant then "picked up a piece of the glass" from the now-broken picture frame and held the "shard [of] glass in his hand," "throwing it around or [waving] it around saying I'll kill both of you, I'll kill both of you."
After getting up from the floor, stepmother asked defendant to leave. Defendant replied he would do so, "if [they] gave him a hundred dollars." She then said she was going to call the police. Defendant responded she "wasn't calling anybody and that, if [she] did, he would kill [them.]" Defendant refused to let her enter the living room to get her cell phone, so she went into the bedroom to use the landline. She felt she needed to call the police because defendant appeared "to be serious" when threatening to kill her and he "would not leave the house."
The district attorney charged defendant with one count of felony making a criminal threat against stepmother (Pen. Code, § 422, subd. (a)) with two enhancements—use of a deadly weapon (§ 12022.2, subd. (b)(1)) and that it was a serious felony (§ 1192.7, subd. (c)(1))—one count of misdemeanor battery on an elder (§ 243.25), one count of misdemeanor interference with a wireless communication device (§ 591.5), and one count of transient violation of registration law, a misdemeanor (§ 290.011, subd. (a)). The information further alleged defendant had suffered three prior felony convictions. (§§ 1203, subd. (e)(4) & 1170.12, subd. (c)(1).)
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant pleaded no contest to count 4, misdemeanor transient violation of registration laws, and after a bench trial, the court found defendant guilty of counts one and two and not guilty of count three. Additionally, the court found true the two enhancements and that defendant had been convicted of two priors as to count 1. The court struck the third strike conviction pursuant to a Romero motion.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
DISCUSSION
Jury Trial Waiver
Defendant contends "the record does not affirmatively establish that [he] knowingly and intelligently waived his right to trial by jury."
At a pretrial hearing, the court stated, "This matter has been set for jury trial," and then had counsel discuss "some preliminary motions."
At that hearing, defendant also entered a no contest plea as to count 4. Before the court discussed the change of plea as to count 4, the following colloquy occurred:
"The Court: Mr. Dixon, have you had an adequate time to talk to [your counsel] about whatever the offers and options are in this case?
"The Defendant: Yes, I have.
"The Court: I want you to do whatever you want to do. If you want to have a trial, we are glad to have a trial. I want to make sure you think about what [counsel] is telling you about the options. . . . [¶] . . . [¶] Especially now that you've heard a lot of the rulings, maybe some I've ruled against your side. That's going to make the trial a little harder perhaps because of some of the rulings I've made. And I just want you to think about it. That's all. And then do whatever you want.
"The Defendant: I fully understand that. But I'm capable and ready and [of] sound mind to plead to the 290 to get that out of the way."
As part of defendant's plea to count 4, he completed and filed a change of plea form in which he gave up, "The right to a trial and specifically the right to trial by jury." With defendant's executed form in hand, the court asked defendant, "Mr. Dixon, regarding count 4, did you read, understand, sign this misdemeanor plea form and give up all the rights on the form?" Defendant replied, "Yes."
The next day, the following colloquy occurred:
"The Court: . . . We had a jury panel here this morning. I should just get the record clear. But by 11:30 when [defense counsel] was still tied up in the other court, and [the prosecutor] had an appearance this afternoon, I decided that it wasn't making good use of that panel so I released them. So here we are. [¶]
"[Defense counsel]: Thank you, your honor. I did have an opportunity to discuss what we had discussed in chambers this morning with [defendant], and he is amenable to the court trial.
"[Prosecutor]: The People are as well.
"The Court: Mr. Dixon, I want to make sure that's clear on the record because you are entitled to a trial obviously. And you know that.
"The Defendant: Yes.
"The Court: It can be a jury trial or a court trial. The only difference obviously being if it's a jury, the jury decides. If it's a court trial, I decide. And [defense counsel] has indicated at this point you are willing to do a court trial; is that correct?
"Defendant: Yeah, a court trial, yes.
"The Court: All right. And I know I said some things to him about the process and how it might—and we might be able to accommodate witnesses and things like that, but do you specifically understand and give up your right to a jury trial at this time?
"The Defendant: Yes. [¶] . . . [¶]
"The Court: Do you join in that waiver, [defense counsel]?
"[Defense Counsel]: I do.
"The Court: All right. And do the People waive jury trial as well?
"[The Prosecutor]: Yes, we do.
"The Court: All right. Then we will proceed to a court trial."
"Under the federal Constitution and our state Constitution, a defendant in a criminal prosecution has a right to a jury trial. [Citations.] However, a 'jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant's counsel.' [Citation.] . . . Moreover, 'a defendant's waiver of the right to jury trial may not be accepted by the court unless it is knowing and intelligent, that is, " ' "made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it," ' " as well as voluntary " ' "in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception." ' " ' [Citations.] '[W]hether or not there is an intelligent, competent, self-protecting waiver of jury trial by an accused must depend upon the unique circumstances of each case.' " (People v. Sivongxxay (2017) 3 Cal.5th 151, 166 (Sivongxxay).)
In Sivongxxay, our high court, while emphasizing that there is no "specific method for determining whether a defendant has made a knowing and intelligent waiver of a jury trial," offered "some general guidance to help ensure that a defendant's jury trial waiver is knowing and intelligent, and to facilitate the resolution of a challenge to a jury waiver on appeal." (Sivongxxay, supra, 3 Cal.5th at pp. 167, 169.) The court stated, "Going forward, we recommend that trial courts advise a defendant of the basic mechanics of a jury trial in a waiver colloquy, including but not necessarily limited to the facts that (1) a jury is made up of 12 members of the community; (2) a defendant through his or her counsel may participate in jury selection; (3) all 12 jurors must unanimously agree in order to render a verdict; and (4) if a defendant waives the right to a jury trial, a judge alone will decide his or her guilt or innocence. We also recommend that the trial judge take additional steps as appropriate to ensure, on the record, that the defendant comprehends what the jury trial right entails. A trial judge may do so in any number of ways—among them, by asking whether the defendant had an adequate opportunity to discuss the decision with his or her attorney, by asking whether counsel explained to the defendant the fundamental differences between a jury trial and a bench trial, or by asking the defendant directly if he or she understands or has any questions about the right being waived. Ultimately, a court must consider the defendant's individual circumstances and exercise judgment in deciding how best to ensure that a particular defendant who purports to waive a jury trial does so knowingly and intelligently." (Id. at pp. 169-170.)
While the colloquy here did not perfectly track the Sivongxxay guidelines, the Supreme Court stated the guidelines were "not intended to limit trial courts to a narrow or rigid colloquy" and " ' "[m]atters of reality, not mere ritual, should be controlling." ' " (Sivongxxay, supra, 3 Cal.5th at p. 170; People v. Doyle (2016) 19 Cal.App.5th 946, 952 [" 'No particular language is necessary to waive a jury trial so long as the words employed disclose in their ordinary, common sense, fair meaning and context an intention to be tried by the court sitting without a jury.' "].)
Here, the trial court advised defendant of his right to trial either by jury or the court. The judge explained the "difference" between the two, stating "if it's a jury trial, the jury decides. If it's a court trial, I decide." Additionally, the day before, defendant had entered a change of plea and pleaded no contest to one of the counts, having executed a waiver of rights form, acknowledged he had reviewed the form with his attorney, and confirmed, on inquiry by the court, that he fully understood the rights he was waiving and was freely doing so.
Defendant's reliance on People v. Jones (2018) 26 Cal.App.5th 420 (Jones) and People v. Blancett (2017) 15 Cal.App.5th 1200 (Blancett) is misplaced, as both cases are distinguishable.
In Jones, supra, 26 Cal.App.4th 420, the Court of Appeal concluded the prosecutor's "two-question inquiry of Jones, as to whether she 'underst[ood] [her] right to a jury trial' and whether she agreed to waive that right and have the trial judge 'sitting alone, decide the case' " did not "affirmatively show that Jones understood the nature of the right to a jury trial she was relinquishing." (Id. at p. 423.) There was "[n]othing in the record," said the court, to suggest the defendant "was aware that a jury is comprised of individuals drawn from the community." For example, "[n]either the information nor the probation report reveal[ed] a prior criminal charge," suggesting defendant "had no experience with the criminal justice system," and therefore no understanding of her jury trial right. (Id. at pp. 436-437.)
Similarly, in Blancett, supra, 15 Cal.App.4th 1200, the appellate court concluded the court's two-question inquiry of whether the defendant "was 'okay' with a court trial instead of a jury trial" was insufficient to establish the defendant waived "his right to a jury trial with full awareness of the nature of the right being abandoned and the consequences of the decision to abandon it." (Id. at pp. 1203, 1206.) "Moreover," the trial court had "appointed counsel [only] moments before [the defendant] entered his waiver and there is no record of discussion between [defendant] and his attorney prior to the waiver." Further, because "this was [defendant's] initial MDO commitment," the record did "not suggest" he "was familiar with MDO proceedings so that he was aware that he was entitled to a jury trial." (Id. at p. 1206.) Although the defendant had "pleaded guilty to two counts of child molestation two years prior," the record did not show what "advisements he received before entering his plea." (Ibid.)
The record here is markedly different. To begin with, defendant had had significant prior experience with the criminal justice system. He attempts to downplay this, claiming nothing in the record shows "details about how much he understood or recalls" of his 1986 jury trial or "what sort of relationship he had with his attorney, or how involved he was in the jury selection." However, no case suggests such an in-depth showing is required. What the record does show is defendant's long-time involvement with the criminal justice system, including two convictions in 1986, two convictions in 1995, and one conviction in 2014. Furthermore, the day prior to his jury trial waiver, defendant pleaded no contest to one of the counts, having executed a waiver of rights form, acknowledging he had been fully counseled by his attorney, and assuring the court he was knowingly and voluntarily giving up his rights.
Given the totality of the circumstances here, there is no merit to defendant's claim that his jury trial waiver was not knowingly and intelligently made.
Criminal Threats Conviction
Defendant next maintains there is insufficient evidence to support the criminal threat conviction. Specifically, he contends there was no substantial evidence the victim "was in sustained fear" as a result of his threats.
We review sufficiency of the evidence challenges for substantial evidence.
On substantial evidence review, we " 'view the whole record in a light most favorable to the judgment, resolving all evidentiary conflicts and drawing all reasonable inferences in favor of the decision of the trial court.' " (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.) "We may not substitute our view of the correct findings for those of the trial court; rather, we must accept any reasonable interpretation of the evidence which supports the trial court's decision." (Ibid.) "Substantial evidence, of course, is not synonymous with 'any' evidence." (Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 871.) Rather, it is "evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value." (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) The focus is on the quality, not the quantity, of the evidence. (Ibid.)
"Section 422 requires the person threatened 'reasonably to be in sustained fear for his or her own safety[,]' . . . [which] requires proof of a mental element in the victim." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) "A victim must actually be in sustained fear," to establish this element of the crime. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) Sustained fear means "a period of time 'that extends beyond what is momentary, fleeting, or transitory.' " (Ibid.) "The victim's knowledge of defendant's prior conduct is relevant in establishing that the victim was in a state of sustained fear." (Allen, at p. 1156.)
To obtain a section 422 conviction, the prosecution must establish: "(1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat—which may be 'made verbally, in writing, or by means of an electronic communication device'—was 'on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228, citing § 422.)
There was ample evidence establishing this element.
Stepmother testified that on the night of the incident defendant "just went berserk, you know, crazy. Yelling, screaming because I woke him up he said." He called her "a fucking bitch," woke up his father, and was just "angry, very angry." Defendant repeatedly screamed at her, yelling "I hate you. You are a fucking bitch. . . . What are you waking me up for. And I was asleep, you woke me up for a cord." Defendant "punched" her in the lip with a closed fist, and pushed her and then father, causing them both to fall down. At some point, he also "picked up a piece of the glass" from a broken picture frame held the "shard [of] glass in his hand," "throwing it around or [waving] it around saying I'll kill both of you, I'll kill both of you."
Stepmother asked defendant to leave and he refused. When she told defendant she was going to call the police, he responded she "wasn't calling anybody and that, if [she] did, he would kill [them.]" Stepmother testified she felt "scared. Very scared," when he said this. She "was afraid" for her safety and her husband's because defendant "does have a very bad temper." She felt she needed to call the police because defendant appeared "to be serious" when threatening to kill her and he "would not leave the house." She remained scared after defendant was arrested and told one of the officers, "if anything happens to us, look for him, [defendant], because he said I'll kill you, I'll kill you both." Because she "was afraid," she and father tried to obtain a restraining order the next day but discovered there was already one against defendant.
The 911 call was also played for the court. In the call, stepmother told the dispatcher defendant "pushed me down and he hit my lip and he pushed his [81-year-old] dad down. I want him out of my house. (sniffles). [¶] . . . [¶] . . . I'm desperate 'cause I just want him out of here. [¶] . . . . . . [¶] . . . And he's just crazy. [¶] . . . [¶] . . . But he has a very hot temper. A very hot temper." Later on in the call, stepmother stated, "He's just kinda out there. He's—I don't want him shot, God forbid I don't want him shot. You know he's just got a bad temper. [¶] . . . [¶] You don't have to do an emergency or flying the lights outside cause like I've said I've been in his house since I was 5 years old. . . . But I don't want lights flashing. I don't want the neighbors to know all of this. You know?" "Yeah he's not—he's probably not going to do nothing to the cops. [¶] . . . [¶] And I know he told me that if I called the cops he'd kill me. But I found the phone and I'm calling now."
Defendant maintains that if stepmother had truly "been in a state of 'sustained fear' as a result of [his] threats to kill her, she certainly would not have called the police—especially since he had told her he would kill her if she did so—in his immediate presence. Furthermore, had she been in sustained fear for her very life, the focus of her 911 call would not likely have been [defendant's] safety—as she repeatedly requested that the police not harm him—or her concern that the neighbors would 'know all this'—as she reassured the dispatcher that no emergency lights or siren were necessary. Nor would she have returned to the living room immediately upon completing her call. . . ."
Defendant also points to stepmother's conversation with an officer who returned to the house "about 30 minutes after" having initially been there. During that conversation, the officer asked stepmother if "she did believe that [defendant] would carry out this threat" because if she did "that could be an extra charge." The officer "got the impression that she didn't believe that [defendant] would actually harm her." However, stepmother also told the officer, when asked if she thought defendant would carry out the threats, "I don't think he would really. I don't know. He's so out there."
In urging that the evidence was insufficient, defendant has done no more than emphasize the evidence he believes is most favorable to his view of the case. He is essentially rearguing the case and asking us to give different weight to the evidence than did the trial court—an undertaking we do not perform on substantial evidence review. (See People v. Green (1997) 51 Cal.App.4th 1433, 1437 [under substantial evidence review, the appellate court "may not reweigh the evidence or evaluate the credibility of witness"].) Moreover, that stepmother expressed concern for defendant's life or concern for her privacy, does not negate her stated fear. And that she called police despite defendant's threats, shows the seriousness of the situation and her fear it would not be resolved without police intervention. Indeed, not only did stepmother testify to fear throughout the confrontation, but continued fear even after the police arrested defendant. And the following day, she and father sought a restraining order, suggesting sustained fear. In short, the trial court credited stepmother's testimony and her 911 call and the "emotion involved in that"—credibility calls the court was entitled to make on the record before it.
We therefore also reject defendant's substantial evidence challenge.
Fines and Fees
The trial court imposed a $300 restitution fine, the required minimum (§ 1202.4, subd. (b)), stayed a $300 parole revocation fine (§ 1202.45), and imposed an $80 court operations assessment (§ 1465.8) and a $60 conviction assessment fees (Gov. Code, § 70373). Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant contends the trial court errored in imposing the fines and fees without first determining his ability to pay.
Dueñas held that due process requires a trial court to conduct a hearing to ascertain a defendant's ability to pay before imposing court facilities and court operations assessments under section 1465.8 and Government Code section 70373. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) Dueñas further held that restitution fines under section 1202.4 must be imposed and stayed unless and until the People demonstrate that a defendant has the ability to pay the fine. (Dueñas, at pp. 1164, 1172-1173.)
Post-Dueñas, the courts have reached different conclusions on the issue of forfeiture. (E.g., People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153- 1155 [finding forfeiture, as "Dueñas applied law that was old, not new"]; People v. Castellano (2019) 33 Cal.App.5th 485, 489 [declining to find forfeiture for "a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial"].)
The courts have also disagreed as to the merits of the Dueñas holdings. (E.g., People v. Caceres (2019) 39 Cal.App.5th 917, 923, 926, review den. Jan. 2, 2020 [Dueñas due process analysis did "not justify extending its holding beyond those facts"]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1060, review den. Dec. 11, 2019 [Dueñas wrongly decided; constitutional challenge to imposition of fines, fees, and assessments should be based on excessive fines clause of Eighth Amendment]; People v. Hicks (2019) 40 Cal.App.5th 320, 325-329, review granted Nov. 26, 2019, S258946 [Dueñas wrong to conclude due process considerations may bar assessments, fines, and fees; such costs and fines do not deny criminal defendants access to courts]; People v. Kopp (2019) 38 Cal.App.5th 47, 95-97, review granted Nov. 13, 2019, S257844 [rejecting Dueñas analysis with respect to restitution fines, which should be analyzed under excessive fines clause, but following Dueñas as to court fees and assessments].)
We need not weigh in on either the Dueñas forfeiture issue or the merits in this case.
Dueñas was decided on January 8, 2019. Defendant was not sentenced until four months later, on April 19, 2019. Thus, he cannot make the no-waiver argument advanced in the Dueñas no-waiver cases—that the defendants were sentenced before Dueñas was decided and could not have reasonably anticipated its holdings. Given that Dueñas was already on the books by the time defendant was sentenced, the ordinary waiver rules apply. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864 [failure to object to trial court fees precludes the defendant's appellant challenge]; People v. Trujillo (2015) 60 Cal.4th 850, 858-860 [failure to object to fees because of defendant's inability to pay forfeits the challenge]; People v. McCullough (2013) 56 Cal.4th 589, 590-591 [failure to object to sufficiency of evidence supporting a booking fee forfeits the issue on appeal]; People v. Nelson (2011) 51 Cal.4th 198, 227 [failure to object to $10,000 restitution fine on inability to pay grounds forfeits the challenge]; People v. Avila (2009) 46 Cal.4th 680, 729 [failure to assert that court must consider an inability to pay when imposing more than the statutory minimum and failure to adduce evidence of an inability to pay forfeits the challenge].)
Defendant maintains he can avoid forfeiture by restyling his claim as one of "insufficient evidence" to support the fines and fees, pointing out that a substantial evidence challenge is never forfeited by failing to advance it in the trial court. Defendant cites to no case endorsing such an end-run around the well-established forfeiture rules. Despite defendant's choice of labeling, his claim is, in substance, a claim of legal error, not a claim of insufficient evidence.
Finally, even assuming no forfeiture, and further assuming Dueñas's reasoning is valid, the case is distinguishable. First, defendant's criminal threat and misdemeanor elder abuse convictions are not crimes either driven by poverty or likely to contribute to that poverty like the crimes at issue in Dueñas. (See People v. Lowery (2020) 43 Cal.App.5th 1046, 1056 ["unique concerns addressed in Dueñas" were "lacking"; "Nothing establishes or even reasonably suggests that appellants face ongoing unintended punitive consequences."].)
Furthermore, although defendant maintains he is indigent, was appointed counsel, and is "currently transient, with no savings, and 'debt of approximately $10,000' " for a student loan, the record shows defendant graduated from high school, has taken business classes, obtained a certificate of completion in medical assisting, and stated he "has been able to maintain stable employment and has worked over a decade at his last two jobs," and "typically works in door to door salesman" types of positions. Thus, there is evidence that defendant has the future capacity to pay the minimal fines and fees imposed. (See People v. Aviles, supra, 39 Cal.App.5th at p. 1076 [court "can infer defendant . . . has the ability to pay the fines and fees imposed upon him from probable future wages"]; People v. Johnson (2019) 35 Cal.App.5th 134, 139-140 [any Dueñas error was harmless given long prison term and no evidence of inability to work]; see also People v. Adams (2020) 44 Cal.App.5th 828, 832 [unlike in Dueñas, defendant made no showing of "compelling and extraordinary reasons" pursuant to which trial court has discretion to waive restitution fine under § 1202.4, subd. (c)].)
DISPOSITION
The judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Margulies, J.