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People v. Dixon

California Court of Appeals, Second District, Sixth Division
Jun 25, 2024
No. B331270 (Cal. Ct. App. Jun. 25, 2024)

Opinion

B331270

06-25-2024

THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY AARON DIXON, Defendant and Appellant.

Pauline Maxwell, Judge Superior Court County of Santa Barbara Debbie Yen, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri, Supervising Deputy Attorney General, and Theresa A. Patterson, Deputy Attorney General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED

Santa Barbara County, Super. Ct. No. 1018845

Pauline Maxwell, Judge Superior Court County of Santa Barbara Debbie Yen, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri, Supervising Deputy Attorney General, and Theresa A. Patterson, Deputy Attorney General, for Plaintiff and Respondent.

CODY, J.

Timothy Aaron Dixon appeals from an order recalling his sentence and resentencing him pursuant to Penal Code section 1172.75. He contends the trial court erred when it reimposed an indeterminate term of 25 years to life based on the incorrect belief that it lacked jurisdiction to dismiss his prior strike convictions. The People concede the point. We will vacate the order and remand for resentencing.

All further undesignated statutory references are to the Penal Code.

FACTUAL AND PROCEDURAL HISTORY

A jury convicted appellant of corporal injury to a spouse with serious bodily injury in 2003. The trial court denied his motion to dismiss prior strikes under People v. Romero (1996) 13 Cal.4th 497 (Romero). It sentenced him to 25 years to life as a third strike offender plus 11 years based on a great bodily injury enhancement (§ 12022.7, subd. (e)) and two serious prior conviction enhancements (§ 667, subds. (a) &(b)). We affirmed his judgment of conviction on direct appeal. (People v. Dixon (Feb. 17, 2004, B164552) [nonpub. opn.].)

The trial court recalled appellant's sentence in 2023 because his prison term included an enhancement under nowinvalid section 667, subdivision (b). It held a resentencing hearing. The court stayed the great bodily injury enhancement and struck the two prior conviction enhancements. It declined appellant's renewed request to dismiss one of his prior strikes under Romero, stating "I just don't feel like I should readjudicate something like that. It was adjudicated at sentencing. It was considered, it was raised." The court then reimposed a term of 25 years to life under the Three Strikes law.

DISCUSSION

Appellant contends the trial court erred when it found it could not "readjudicate" his Romero motion at resentencing. The People concede, and we agree, the trial court should have exercised its discretion to fully resentence appellant pursuant to section 1172.75.

Section 1172.75 declared sentence enhancements imposed under section 667, subdivision (b) to be "legally invalid" unless based on a sexually violent offense. (§ 1172.75, subd. (a).) The statute directs the Secretary of the California Department of Corrections and Rehabilitation ("CDCR") to identify those serving sentences with one or more now-invalid prior conviction enhancements. (Id., subd. (b).) The trial court must then "review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a)," and if so, "recall the sentence and resentence the defendant." (Id., subd. (c).) "The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant's risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice." (Id., subd. (d)(3).)

A trial court resentencing a defendant pursuant to recall and resentencing statutes "has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall." (People v. Buycks (2018) 5 Cal.5th 857, 893, italics omitted.) This includes jurisdiction to reconsider a Romero motion. (People v. Hubbard, (2018) 27 Cal.App.5th 9, 13, quoting People v. Garner (2016) 244 Cal.App.4th 1113, 1118 ["once the trial court 'recalled' [defendant's] sentence under Proposition 36, the trial court was 'entitled to consider the entire sentencing scheme'"].)

The trial court found no evidence of present danger at appellant's hearing, noting he completed "an impressive list of programs" in prison while remaining sober and discipline free. Defense counsel stated the indeterminate part of appellant's sentence, i.e., the base term of 25 years to life, was the "biggest barrier" to parole and requested the court dismiss one of his strikes. The court responded, "I think at the time of sentencing that that was warranted. It was a violent offense and was committed while he was on parole for a previous DV.... I would consider striking both enhancements, but I don't think that I would find that at the time of sentencing he was outside the Three Strikes law." Defense counsel noted the two prior strike convictions "were committed at the same time, on the same date, against the same victim." The court responded, "I just don't feel like I should readjudicate something like that. It was adjudicated at sentencing. It was considered, it was raised. Again, this is a very different Mr. Dixon that we are seeing today than the one we saw back then. So I don't really . . . think it's appropriate to readjudicate something that at the time was probably appropriate."

These remarks confirm the trial court viewed appellant's indeterminate term as immutable because his strikes were properly imposed under the Three Strikes law in place at the time of his original sentencing. This is incorrect. The trial court retained discretion to dismiss appellant's prior strikes based on post-conviction factors showing his "incarceration is no longer in the interest of justice." (§ 1172.75, subd. (d)(3).) "By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly 'invalid' enhancements." (People v. Monroe (2022) 85 Cal.App.5th 393, 402.) A trial court abuses its discretion when it is "not 'aware of its discretion' to dismiss" or strike a prior conviction. (People v. Carmony (2004) 33 Cal.4th 367, 378; People v. Banks (1997) 59 Cal.App.4th 20, 23-24.) It shall exercise this discretion on remand.

DISPOSITION

The trial court's July 27, 2023 order on appellant's petition for resentencing is vacated. The matter is remanded for a full resentencing pursuant to Penal Code section 1172.75. We express no view as to how the court shall exercise its sentencing discretion upon remand.

We concur: GILBERT, P. J. BALTODANO, J.


Summaries of

People v. Dixon

California Court of Appeals, Second District, Sixth Division
Jun 25, 2024
No. B331270 (Cal. Ct. App. Jun. 25, 2024)
Case details for

People v. Dixon

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY AARON DIXON, Defendant…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Jun 25, 2024

Citations

No. B331270 (Cal. Ct. App. Jun. 25, 2024)