Opinion
F087098
09-24-2024
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. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Eric L. Christoffersen, Lewis A. Martinez, and Hannah Janigian Chavez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. CF93485197 Jonathan M. Skiles, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Eric L. Christoffersen, Lewis A. Martinez, and Hannah Janigian Chavez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 1993, appellant Demetrius Deon Dixon was convicted of first degree murder (Pen. Code, § 187, subd. (a)) and robbery (§ 211, 212.5, former subd. (b)). In addition, the jury found true a special circumstance alleging that the murder occurred during the commission of the robbery (§ 190.2, subd. (a)(17)) and that Dixon personally used a dangerous or deadly weapon, a knife, during the commission of both offenses (§ 12022.7.) Dixon was sentenced to life without the possibility of parole.
All further undefined statutory citations are to the Penal Code unless otherwise indicated.
In 2019, Dixon filed a petition for resentencing on his murder conviction under former section 1170.95, renumbered as section 1172.6. His petition was summarily denied by the superior court. This court affirmed the court's order of denial. (People v. Dixon (Nov. 15, 2021, F080594) [nonpub. opn.].)
In 2022, following the enactment of Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill No. 775), Dixon filed two new petitions for resentencing (§ 1172.6), both of which were summarily denied by the superior court. On appeal, we remanded the matter back to the lower court for further proceedings consistent with section 1172.6, subdivision (c), including a determination of whether the record shows, without factfinding involving the weighing of evidence or the exercise of discretion, that Dixon was convicted as the actual killer. In so doing, we explicitly held that although Dixon had conceded there was evidence showing he was the actual killer, his admission was not tantamount to a concession. (See People v. Dixon (Dec. 27, 2022, F084232) [nonpub. opn].)
On remand, the superior court denied Dixon's petition, finding that Dixon's admission rendered him ineligible for resentencing relief.
Dixon appeals, now for a third time, claiming that the trial court erred in denying his petition at the prima facie stage. For the reasons discussed in this opinion, we conclude that the trial court erred by denying Dixon's petition. We therefore reverse the trial court's order and remand the matter back to the lower court for further proceedings consistent with section 1172.6, subdivision (d).
FACTUAL AND PROCEDURAL HISTORY
The Underlying Crime
The following statement of facts are derived, in part, from this court's unpublished opinion in People v. Mendez et al. (Apr. 10, 1996, F020673) [nonpub. opn.]. The following factual summary is recited for the limited purpose of providing context to Dixon's conviction:
The Attorney General filed an unopposed request for judicial notice of the record in People v. Mendez et al., supra, F080673. We grant that request. (See Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule 8.1115(b)(2).)
On November 15, 1992, Dixon and Scott Mitchell-Mendez robbed Jaime Irizarry of his vehicle. During the commission of the crime, one of the perpetrators slashed Irizarry's throat with a knife, killing him. Irizarry was also stabbed once in the back by the same perpetrator.
Dixon's friend, Valunt Montgomery, was present during the incident and observed the murder. Montgomery initially identified Mitchell-Mendez as the actual killer before he subsequently confessed that Dixon had killed Irizarry. At trial, he testified that Dixon was the actual killer.
The forensic pathologist who had conducted Irizarry's autopsy opined that based upon the location and direction of the stab wound, the perpetrator had likely held the knife in their left hand. Among Dixon, Mitchell-Mendez, and Montgomery, only Dixon was left-handed.
Mitchell-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 in the commission of both the murder and the robbery but found the arming enhancement not true as to Mitchell-Mendez. Montgomery was acquitted of all charges.
The Superior Court's Denial of Dixon's Petition on Remand
In a written order dated October 19, 2023, the superior court denied Dixon's petition. The superior court observed, in relevant part, that no additional research or argument by counsel would change the outcome of Dixon's petition, and that further proceedings on Dixon's petition would constitute a waste of judicial resources. In so holding, the court found that Dixon had failed to make a prima facie showing based exclusively on a concession by Dixon that the jury found that he was the actual killer. In one of Dixon's petitions for resentencing, he represented that he was found guilty of being the actual killer, but that "evidence of law enforcement's actions, witness testimony, evidence admitted at trial, exists that challenges the jury's findings."
At the prima facie hearing on Dixon's petition, Dixon was represented by counsel, although Dixon himself did not personally appear. Trial counsel, making a special appearance for the attorney of record, requested a continuance. Counsel explained that Dixon's attorney of record had only recently been assigned. The court denied counsel's request, finding that Dixon's statement that he had been convicted as the actual killer, made in an exhibit attached to his petition, rendered him ineligible for resentencing relief as a matter of law.
The prosecutor represented that substitute counsel for Dixon had advised they had not previously seen the prosecutor's brief in opposition. The trial court stated that its order "has nothing whatsoever to do with what's in that opposition." The court explained that Dixon's statement that he was convicted as the actual killer was conclusive.
Trial counsel requested that the court deny Dixon's petition without prejudice so that counsel could clarify whether Dixon's admission was based upon a misstatement. The prosecutor also asked for clarification as to whether the court's order of denial was with or without prejudice. The trial court replied that there was no distinction between a denial with or without prejudice on a section 1172.6 petition and declined to comment further.
DISCUSSION
I. Dixon's Admission That He Was Convicted As The Actual Killer
In an exhibit attached to one of his petitions for resentencing, filed on January 28, 2022, Dixon acknowledged that he "was found guilty as being the actual killer." His petition contained additional exhibits challenging the legitimacy of the trial evidence to that effect, and thus, appears to be a challenge to his conviction based upon a claim of factual innocence. However, in our prior appeal, we declined to rely on his admission to conclude that he is ineligible for resentencing relief under section 1172.6 as a matter of law. We hold, again, that this admission alone was insufficient to find that he was ineligible for resentencing relief as a matter of law. We base our conclusion on several reasons.
First, in the same petition that Dixon admitted that he was convicted as the actual killer, he also alleged that "[he] could not presently be convicted of murder ... because of changes made to Penal Code[,] §§ 188 and 189, effective January 1, 2019." Dixon declared under penalty of perjury that the latter statement was true. As far as we can discern, Dixon's assertion that he was convicted as the actual killer was not a sworn assertion. Nor is it clear what this statement is based upon.
Second, although it is unclear whether Dixon's petition for resentencing is in fact based upon changes made to the law following the enactment of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437) and Senate Bill No. 775, or whether he is lodging a claim of factual innocence, we remanded this matter back to the lower court following an implied conclusion that Dixon's petition was facially sufficient. The trial court's conclusion to the contrary went beyond the scope of our remittitur directions.
A petition under section 1172.6 is not an appropriate vehicle to seek relief based on new evidence establishing factual innocence. Section 1172.6 applies when the defendant could not presently be convicted of attempted murder "because of changes" to the law of murder. (§ 1172.6, subd. (a)(3).) Namely, the amendment of sections 188 and 189, which eliminated theories of murder liability based upon imputed malice. Had Dixon clarified on remand that his claim was in fact based upon new evidence establishing his innocence, the trial court would have been permitted to deny his petition on that basis alone. However, the trial court's order permitting Dixon to attend the prima facie hearing via Zoom video conferencing was not delivered to the California Department of Corrections. Thus, Dixon did not attend the hearing. Further, the attorney appearing on Dixon's behalf was making a special appearance for Dixon's attorney of record. As such, he had no information concerning the nature of Dixon's claim.
II. Evidence From the Record of Conviction
In his initial petition for resentencing, Dixon acknowledged that he was convicted as the actual killer. Consistent with his representation, the record of conviction contains uncontroverted evidence from his trial which supports this conclusion. On remand, we advised that if the prosecutor could demonstrate that the record of conviction shows that Dixon was convicted as the actual killer without" 'factfinding involving the weighing of evidence or the exercise of discretion'" (People v. Lewis (2021) 11 Cal.5th 952, 972), Dixon's petition could be denied at the prima facie stage. We now conclude that although there is compelling evidence showing that Dixon was the actual killer, we cannot reach this conclusion without factfinding that is prohibited at this stage of the section 1172.6 proceedings.
To begin, we observe that the record demonstrates that the jury was instructed upon the felony murder rule, prior to our Supreme Court's decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), as well as direct murder liability, based upon the fact that Dixon was either the actual killer, or that he had acted as an aider and abettor with the intent to kill. The jury was not instructed on the natural and probable consequences doctrine.
Following the enactment of Senate Bill No. 1437, a person who engages in felony murder is eligible to be resentenced unless the person is either (a) the actual killer; (b) an aider and abettor who acted with an intent to kill; or (c) not a major participant in the underlying felony who acted with reckless indifference to human life. (§ 189, subd. (e); (People v. Gentile (2020) 10 Cal.5th 830, 842, superseded by statute on other grounds as stated in People v. Wilson (2023) 14 Cal.5th 839, 869.) Here, neither the jury's verdict nor its findings affirmatively demonstrate that it found Dixon had acted as an aider and abettor who shared the direct perpetrator's express malice, and the jury's finding on the robbery-murder special circumstance, which occurred pre-Banks and Clark, is no longer sufficient to conclude that Dixon is ineligible for relief as a matter of law. (See People v. Strong (2022) 13 Cal.5th 698, 710 ["We now conclude ... [felony-murder specialcircumstance] [f]indings issued by a jury before Banks and Clark do not preclude a defendant from making out a prima facie case for relief under Senate Bill 1437"].)
Thus, the relevant inquiry is whether the record of conviction necessarily demonstrates, without" 'factfinding involving the weighing of evidence or the exercise of discretion'" (Lewis, supra, 11 Cal.5th at p. 972) that Dixon was convicted as the actual killer. We conclude that the record does not so demonstrate.
Our review of the record discloses uncontroverted evidence showing that there was only one perpetrator armed with a knife during the commission of the robbery and the murder, and that the perpetrator used the knife to kill the victim. Montgomery made post-arrest statements to detectives claiming that the only weapons among the group were a .32-caliber pistol, which was inoperable, and a knife belonging to a man called "Cowboy," who was with the group the night of the murder. Montgomery stated that while holding the knife in his left hand, the perpetrator of the murder used it to slice the victim's throat. During his testimony at trial, Montgomery repeated his initial statements to detectives, explaining that the knife was used to kill the victim.
Dr. Venu Gopal, the forensic pathologist that performed Jamie Irizarry's autopsy opined, with "a reasonable degree of medical certainty," that Irizarry died from an "incised wound to the neck." Dr. Gopal further opined that the knife believed to be the murder weapon could have caused the fatal cut to Irizarry's neck.
Although Dixon's liability would have been the same whether he was convicted as the actual killer or a major participant in the robbery who acted with reckless indifference to human life, the identity of the killer was heavily contested throughout the defendants' joint trial. Following his arrest, Dixon blamed Mitchell-Mendez for Irizarry's murder. Montgomery also initially implicated Mitchell-Mendez, but subsequently confessed that Dixon had cut the victim's throat with the knife, a claim which he repeated during his testimony at trial.
The jury found the arming enhancement true only as to Dixon. In so doing, it appears that the jury did in fact find that he was the actual killer.
We are constrained to conclude however that we cannot find that Dixon was convicted as the actual killer without factfinding that is impermissible at this stage of the proceedings. To support a true finding on a section 12022, subdivision (b) enhancement, the jury instructions required the jury to find that the defendants had displayed a deadly weapon "in [an intentionally] menacing manner or intentionally to strike or hit a human being with it." (CALJIC No. 17.16.) Thus, as our Supreme Court has explained, "[t]he finding of personal use [of a weapon], ... would not in itself prove defendant was the actual killer." (People v. Jones (2003) 30 Cal.4th 1084, 1120.)
The fact that the knife was used to kill Irizarry is the only natural conclusion that could be drawn from the uncontradicted evidence. It strains credulity to accept the jury's finding that Dixon possessed the knife and used it during the robbery, but that he did not use the knife to kill Irizarry when that same enhancement was found not true as to the only other alleged perpetrator of the murder. (See People v. Garrison (2021) 73 Cal.App.5th 735, 743 [concluding, following an evidentiary hearing, that "although in theory, a finding that a defendant personally used a firearm does not in itself prove a defendant is the actual killer [citation], the facts of a particular case may support only that conclusion"]; see also, People v. Jones, supra, 30 Cal.4th at pp. 1120-1121 ["If two robbers display guns to intimidate robbery victims and one shoots and kills a victim, both robbers could be found to have personally used a gun in the robbery and the felony murder, even though only one is the actual killer." However, when the record shows only one person displayed and used a gun and "[a]ll evidence points to defendant, not the second robber, as the one with the gun," the true finding on a personal use enhancement demonstrates that the defendant was the actual killer].)
Nonetheless, we cannot draw this conclusion without weighing the trial evidence, even though that evidence was uncontradicted. After all, a trier of fact "is not required to believe the testimony of any witness, even if uncontradicted." (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1028; In re Ferrell (2023) 14 Cal.5th 593, 605 ["[j]urors remain[ ] free to pick and choose those portions of evidence they [may find] credible," including accepting some aspects of a witness's testimony while rejecting others, to"' "weav[e] a cloth of truth"' from available materials"].) "[A]bsent a factual finding or admission regarding the manner in which the offense was committed, even compelling, uncontroverted, and uncontradicted testimony is not conclusive of a petitioner's guilt under a specific theory, as required under [People v.] Curiel [(2023) 15 Cal.5th 433]." (People v. Williams (2024) 103 Cal.App.5th 375, 403, review granted Sept. 11, 2024, S286314.)
California appellate courts have held that uncontroverted evidence does not implicate" 'factfinding, [the] weighing of evidence, or credibility determinations.'" (People v. Patton (2023) 89 Cal.App.5th 649, 658, review granted Jun. 28, 2023, S279670 [concluding that "[t]he sworn testimony of police officers, based on surveillance video of the crime, that Patton committed the shooting was and is uncontroverted. '[N]o factfinding, weighing of evidence, or credibility determinations' were or are necessary here."]); People v. Mares (2024) 99 Cal.App.5th 1158, 1171, review granted May 1, 2024, S284232 ["uncontradicted facts showing the defendant was the actual killer cannot be 'weighed' to support the conclusion that he was an accomplice of someone else who killed"]; People v. Pickett (2023) 93 Cal.App.5th 982, 992, review granted Oct. 11, 2023, S281643 [trial courts can rely on uncontradicted preliminary hearing transcripts to discern facial eligibility under section 1172.6].)
The issue upon which review was granted in Patton was as follows: "Did the trial court engage in impermissible judicial factfinding by relying on the preliminary hearing transcript to deny defendant's Penal Code section 1172.6 petition at the prima facie stage? (See People v Lewis (2021) 11 Cal.5th 952.)" <https://perma.cc/8Q8T-BXPW> (as of September 24, 2024).
This issue is imminently pending resolution by our Supreme Court. In the interim, we conclude that accepting uncontradicted trial evidence as true, and drawing inferences from that evidence, goes beyond what is permitted at the prima facie stage.
At the prima facie stage, a trial court is only permitted to deny the petition if the record of conviction "foreclose[s] [the] possibility [that the petitioner was convicted under an invalid theory] as a matter of law." (People v. Curiel, supra, 15 Cal.5th at p. 470 (Curiel).) This issue "is not governed by principles of harmless error." (Id. at p. 465.) Thus, no matter how bizarre or unlikely the factual scenario may be that would have permitted the jury to convict the defendant of murder upon a now-invalid theory, the petition must proceed to an evidentiary hearing unless the jury necessarily found every element of the offense under a still-valid theory of murder liability. (Id. at p. 468 [finding that jury did not necessarily find the requisite mens rea for direct adding and abetting murder, despite the jury's finding that the section 1172.6 petitioner, convicted of a gangmurder special circumstance, had acted with the intent to kill].)
As in Curiel, whether the procedural error here was harmless was not raised by the parties. We encourage the parties in future proceedings to address whether the harmless error test may apply in the context of section 1172.6 proceedings. (See People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1247-1248.)
Here, in finding the elements of the arming enhancement had been proven, the jury was not asked to specifically find that Dixon used the knife to kill Irizarry. Neither the elements of the enhancement nor the prosecutor's comments in closing argument demonstrate otherwise. Moreover, there is evidence in the record showing that prior to his murder, Irizarry may have been forced out of his vehicle at knifepoint, that action, and possibly having displayed the knife in a menacing manner, are two non-murder uses of the knife upon which the jury's true finding on the enhancement may have been based. Based upon the foregoing, we reluctantly conclude that this matter must be remanded back to the lower court for further proceedings, including the issuance of an order to show cause and an evidentiary hearing.
DISPOSITION
The superior court's order denying Dixon's petition for resentencing is reversed and the matter is remanded back to the lower court for further proceedings consistent with section 1172.6, subdivision (d), including the issuance of an order to show cause and an evidentiary hearing.
[*] Before Detjen, Acting P. J., Smith, J. and Snauffer, J.