Opinion
F080594
11-15-2021
THE PEOPLE, Plaintiff and Respondent, v. DEMETRIUS DEON DIXON, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric Christoffersen, Lewis Martinez, and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County (Super. Ct. No. CF3485197). Alan M. Simpson, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric Christoffersen, Lewis Martinez, and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
In 1993, appellant Demetrius Deon Dixon was convicted by jury of first degree murder (Pen. Code, § 187, subd. (a)) and second degree robbery (§§ 211, 212.5, former subd. (b)). In addition, the jury found true an enhancement allegation for the personal use of a deadly weapon in the commission of the offenses, a knife (§ 12022, subd. (b)), and a special circumstance alleging the murder occurred in the commission of a robbery (§ 190.2, subd. (a)(17)). Dixon was sentenced to state prison for life without the possibility of parole, plus one year.
All undefined statutory citations are to the Penal Code unless otherwise indicated.
In 2019, following the enactment of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437), Dixon filed a section 1170.95 petition for resentencing seeking to vacate his murder conviction. The trial court denied Dixon's petition without appointing him counsel and allowing the parties to submit briefing. On appeal, Dixon contends the trial court erred in both respects, and that the error is reversible. We affirm.
PROCEDURAL HISTORY
On October 14, 1993, a jury found Dixon guilty of first degree murder (§ 187) and second degree robbery (§§ 211, former 212.5, subd. (b)). In addition, the jury found true an enhancement alleging Dixon had personally used a deadly and dangerous weapon, a knife (§ 12022, subd. (b)) in the commission of both offenses, and a special circumstance alleging the murder occurred during the commission of a robbery (§ 190.2, subd. (a)(17)).
On November 15, 1993, Dixon was sentenced to an indeterminate term of life without the possibility of parole, plus one year.
On April 10, 1996, this court affirmed Dixon's judgment of conviction following his direct appeal. (People v. Mendez et. al. (Apr. 10, 1996, F020673) [nonpub. opn.].) and the natural and probable consequences doctrine as these theories of liability relate to murder. (Stats. 2018, ch. 1015, §§ 2, 3.)
On March 17, 2019, Dixon filed a petition in the Fresno County Superior Court requesting resentencing pursuant to section 1170.95.
On April 8, 2019, the superior court denied Dixon's petition finding he had failed to make a prima facie showing that he falls within the provisions of section 1170.95. The trial court's written ruling stated Dixon was not entitled to relief because he was convicted of first degree murder with an enhancement for the personal use of a knife.
On October 17, 2019, Dixon filed another petition in the Fresno County Superior Court requesting resentencing pursuant to section 1170.95. Dixon also filed a motion seeking to set aside his first petition. In his petition, Dixon acknowledged the court had found the jury determined he was the actual killer. He specifically recognized there was evidence presented showing he had personally cut the victim's throat, and that the prosecutor had argued Dixon had pulled back the victim's head to do so. However, he argued there was evidence that contradicted the jury's findings and that the jury's verdict was based upon false evidence and the involuntary statements of a witness to the crime.
On December 16, 2019, the superior court denied Dixon's motion and petition with prejudice. With respect to Dixon's petition, the superior court found petitioner had failed to make a prima facie showing that he fell within the provisions of section 1170.95 because Dixon was the actual killer who had acted with express or implied malice in the commission of the murder.
On January 8, 2020, Dixon filed a timely notice of appeal.
FACTS
The following statement of facts are derived, in part, from this court's nonpublished opinion in People v. Mendez et. al. (People v. Mendez et al., supra, F020673.)
The People requested this court take judicial notice of the nonpublished opinion. That request is granted.
On November 15, 1992, Dixon and Scott Mendez robbed Jaime Irizarry of his vehicle. During the commission of the crime, Dixon killed Irizarry by slashing his throat with a knife Dixon held in his left hand. He also stabbed Irizarry once in the back.
Mendez and Dixon were convicted of first degree murder and robbery with a special circumstance alleging the murder occurred during the course of the robbery. The jury also found Dixon had personally used a knife as to the commission of both the murder and the robbery (§ 12022, subd. (b)), but found not true this enhancement allegation as to Mendez.
Dixon's friend, Valunt Montgomery, was present during the incident. According to Montgomery, Dixon cut the victim's throat and stabbed him in the back. Although Montgomery was charged with Dixon and Mendez, he was acquitted of all charges.
ANALYSIS
Dixon argues the superior court's denial of his resentencing petition without appointing counsel or affording him an opportunity for briefing denied him his Sixth Amendment right to counsel and his right to due process under the federal Constitution. Because Dixon submitted a facially sufficient petition, we conclude the trial court erred in both respects. However, as Dixon has failed to show"' "it is reasonably probable that if [he] had been afforded assistance of counsel [his] petition would not have been summarily denied without an evidentiary hearing" '" (People v. Lewis (2021) 11 Cal.5th 952, 974 (Lewis), we further conclude the court's error is harmless.
In 2018, the Legislature passed Senate Bill No. 1437, amending the felony murder rule and the natural and probable consequences doctrine in a manner that forecloses murder liability from being vicariously imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. (Stats. 2018, ch. 1015, § 1, subd. (f); People v. Gentile (2020) 10 Cal.5th 830, 842.)
Senate Bill No. 1437 also added section 1170.95 to the Penal Code, creating a procedure for persons previously convicted of murder under the felony murder rule or the natural and probable consequences doctrine to petition the superior court for retroactive relief. Subdivision (a) of section 1170.95 sets forth the requirements for a facially sufficient petition. The petitioner must aver that: "(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial .... [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to [s]ection 188 or 189 made effective January 1, 2019." (§ 1170.95, subd. (a)(1)-(3).)
In People v. Lewis, supra, 11 Cal.5th at page 957, our Supreme Court held that if a petitioner files a facially sufficient petition for relief (see § 1170.95, subds. (a)-(b)) and requests the appointment of counsel, the sentencing court must appoint counsel and order further briefing. Only after the appointment of counsel and the opportunity for briefing may the court consider the petitioner's record of conviction to determine whether the petitioner has made a prima facie showing that he or she is entitled to relief. (Lewis, supra, at pp. 969-970.)
Here, Dixon's petition for resentencing met the requirements for facial sufficiency. In his petition, Dixon also requested the appointment of counsel. Thus, the superior court erred by denying his petition without first appointing counsel and permitting the parties to submit briefing on Dixon's entitlement to relief. (Lewis, supra, 11 Cal.5th at pp. 969-970.) However, we conclude the superior court's error is harmless under People v. Watson (1956) 46 Cal.2d 818 (Watson).
As our Supreme Court explained in Lewis, "a petitioner is not constitutionally entitled to counsel at the outset of the subdivision (c) stage of the section 1170.95 petitioning process." (Lewis, supra, 11 Cal.5th at p. 973.) Rather, the court's "failure to appoint counsel" at the prima facie stage is "state law error only," and" 'the Watson harmless error test applies.'" (Ibid.) Under Watson, a petitioner" 'whose petition is denied before an order to show cause issues has the burden of showing "it is reasonably probable that if [he or she] had been afforded assistance of counsel his [or her] petition would not have been summarily denied without an evidentiary hearing." '" (Lewis, supra, at p. 974.)
Here, Dixon cannot meet his burden of establishing a reasonable probability of a different outcome. The record of conviction shows Dixon was the actual killer. The jury found true an enhancement alleging that Dixon personally used a knife in the commission of the murder and the robbery (§ 12022, subd. (b)). Moreover, Dixon himself acknowledges there was evidence adduced at trial showing he had held Irizarry's head back and cut Irizarry's throat using his left hand. Dixon's codefendant, Montgomery, witnessed the murder and testified to these facts at trial. As the actual killer, Dixon is ineligible, as a matter of law, for resentencing under section 1170.95.
We further observe the jury found true a special circumstance alleging the murder occurred during the commission of a robbery. (§ 190.2, subd. (a)(17).) The special circumstance necessarily required the jury to find Dixon was a major participant in the underlying felony who acted with reckless indifference to human life. (§ 190.2, subd. (d).) "[B]y finding the special circumstance true, the jury made the requisite findings necessary to sustain a felony-murder conviction under the amended law." (People v. Simmons (2021) 65 Cal.App.5th 739, 747, review granted Sept. 1, 2021, S270048.) Consequently, Dixon is ineligible for resentencing under section 1170.95 on this basis as well.
DISPOSITION
The superior court's order denying Dixon's petition for resentencing under section 1170.95 is affirmed.
[*]Before Detjen, Acting P. J., Smith, J. and Snauffer, J.