Opinion
F072122
03-21-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH LEROY DIXON, Defendant and Appellant.
Robert H. Derham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Nora S. Weyl and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1403615)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T. Steffen, Judge. Robert H. Derham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Nora S. Weyl and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant Joseph Leroy Dixon was charged with murder and associated enhancements for the shooting death of Shannon Case. On April 15, 2014, appellant was convicted of first degree murder (Pen. Code, § 187, subd. (a)) and special allegations of premeditation and deliberations and personal use of a firearm were found true. A separate court trial was held and a prior serious felony allegation was found true. Appellant was sentenced to an aggregate term of 75 years to life in state prison.
This appeal timely followed. We initially affirmed appellant's conviction in a nonpublished opinion dated October 11, 2017. Shortly thereafter, on October 25, 2017, appellant filed a petition for rehearing arguing the recently enacted Senate Bill No. 620 (Stats. 2017, ch. 682, §§ 1-2), effective January 1, 2018, which provides a trial court has discretion to strike certain firearm enhancements, applied retroactively to his case and warranted a remand for resentencing. The People conceded Senate Bill No. 620 applies retroactively, but argued, after we granted rehearing, that appellant's case should not be remanded because such a remand would be futile. In this revised opinion, we reissue our prior decision to affirm appellant's conviction and consider the dispute whether remand is appropriate in light of Senate Bill No. 620.
FACTUAL AND PROCEDURAL BACKGROUND
I. Prosecution's Case
On the night of April 3, 2009, Shannon Case was drinking with several friends, including Chris S. Sometime after midnight, Case, Chris and Chris's cousin left to get food from "Jack In The Box." While driving, Case got a call from her friend Desiree M. who wanted to meet at Roberson Park. Desiree and Madeline L., Desiree's former aunt by marriage, called Case several times to arrange a meeting at the park. Case drove and parked on the street in front of the park, and she, Chris and Chris's cousin continued drinking in the car.
Several members of the L. family are discussed in this opinion. To avoid confusion, first names will be used. No disrespect is intended.
As they were sitting in the car, Chris and his cousin saw another car drive down the street towards Case's car and saw and heard gunshots. They both ducked down and were not able to get a good look at the car or determine if the shots were coming from the other car. Chris heard the window of Case's car breaking and realized that the shots were being fired at her car. After the shooting stopped, he saw that Case had been shot in the head. Chris and his cousin attempted to provide aid to Case and called law enforcement; however, Case was unresponsive.
Modesto Police Department officers arrived at the scene of the shooting at 1:28 a.m. on April 4, 2009. There was a pool of blood around Case's head and three bullet wounds to her thighs. Police investigators found evidence of five rounds fired at Case's car, one striking a tire, one through the side mirror, and two that impacted the driver's side door. An autopsy revealed gunshot wounds to Case's head, chest and thigh. Cause of death was due to loss of blood from the multiple gunshot wounds. A ballistics examination determined that the recovered rounds were likely fired from a .22-caliber long rifle.
About three or four days before the shooting, Chris was drinking at Desiree's house and was introduced to Adriana L., Madeline's daughter. Chris invited Adriana to his house. Chris and Adriana drank together, and began kissing and fondling. Chris recalled that he passed out before they could engage in sexual intercourse. He woke up the next morning and Adriana was gone. Chris did not know Adriana's age, but later found out that she was 15 years old. Adriana testified that she was intoxicated and was falling in and out of consciousness at the time; however, she recalled that they had engaged in sexual intercourse.
Chris is African-American and was 20 years old at the time. Further, at trial, he testified under the protection of an immunity agreement in which he could not be prosecuted with regard to his sexual acts with Adriana.
The next day, Chris attempted to visit Adriana. When he arrived at the house, Adriana's mom, Madeline, and her boyfriend, appellant, were there. Madeline asked Adriana if she had sex with Chris and accused her of being a whore. Appellant made comments to Chris that Chris interpreted as challenging him to a fight. Chris went into the street to fight, but appellant did not follow and Chris left. Madeline believed that Chris provided Adriana a date rape drug before sexually assaulting her. She took Adriana to the doctor, and Adriana was diagnosed with a sexually transmitted disease. Madeline was upset by the situation.
At the time of appellant's trial, Madeline had entered into a plea agreement in which she pled no contest to shooting at an occupied vehicle in exchange for agreeing to testify truthfully against appellant.
Madeline's nephew, a known member of a criminal street gang, had a sawed-off rifle. On April 3, 2009, appellant and Madeline went to her nephew's house and retrieved the rifle. Madeline testified that after getting the gun, she and appellant drove to the park where Desiree had arranged for Case and Chris to be. They drove around the park and then went back to Desiree's house. Upon returning, appellant left in the car by himself with the rifle.
Later that night, the gun was returned to Madeline's nephew. Madeline's nephew and his girlfriend cleaned the gun of prints using bleach, and placed it back in a closet. After the shooting, another nephew of Madeline, who was present when appellant and Madeline retrieved the gun, made several anonymous tips to law enforcement implicating appellant and Madeline in the shooting.
Madeline testified that on the night of the murder, she and appellant were with Desiree and knew that she and Desiree had arranged for Case to meet at the park that night. When interviewed by law enforcement, Madeline admitted that they retrieved the gun, "So [Chris] wouldn't bother [her] daughter again." Madeline recalled that on the morning after the shooting, appellant admitted that he had shot up a car and heard screaming and was pretty sure he had got the guy. Appellant told her that he thought he shot Chris in the arm. When Madeline was driving home later that morning, she noticed shell casings on the passenger side floor of her car. Madeline took the shell casings and flushed them down the toilet. Appellant later told Madeline that he and her nephews burned the gun.
At some point after the shooting, Madeline attempted to strike appellant with her car. To avoid getting run over, appellant jumped on the hood of the car and tore off a windshield wiper. Madeline asked appellant what he had done in her car, and he responded by saying "I shot a bitch." Madeline slapped appellant, he responded by slashing her with the windshield wiper, cutting her face. Neighbors witnessed appellant hit Madeline, and assaulted him for striking a woman.
Around the time of the shooting, Emily L. was addicted to pain pills and methamphetamine. She purchased pain pills from Madeline and appellant. On one instance when she went to purchase drugs, she witnessed that appellant appeared panicked and stressed. He stated to Emily that "This bitch has me up on a murder rap." Emily established a relationship with appellant and Madeline, although she was also having intimate relations with appellant. Madeline and appellant told Emily that they were trying to retaliate against someone who had dated Madeline's daughter and accidently shot the person's female friend instead. They referred to the murder victim as the "[s]ix-foot 300-pound bitch," and requested that Emily provide them an alibi. On a different occasion, appellant told Emily that he had shot the person that raped Madeline's daughter, and referred to the rapist using racial epithets. During an interaction with Emily, Madeline stated that appellant was dangerous and had shot someone. This conversation occurred after the April 4, 2009, shooting of Case.
Case was five foot six inches tall and weighed 270 pounds at the time of her death.
After the shooting, appellant met with Madeline's sister, Terry F. When Terry approached appellant's car, he took off his sunglasses and asked if she wanted to see a killer's eyes, and admitted that he was the one that killed Case. Appellant told Terry that Madeline had taken Adriana to get an abortion and he had shot Case because she threw the party and was responsible for allowing African-Americans to attend. Terry explained that she had not told the police until appellant and Madeline were arrested because appellant had threatened her, and she was afraid for her safety.
Madeline had made overtly racist comments, upsetting Terry. Those statements included calling her sister's grandchildren, who were half African-American, racial epithets. One specific incident occurred at the funeral of one of her sister's grandchildren who was the victim of a drive-by shooting at age four. Madeline called the deceased child a child of a nigger. Her comments caused a falling out with other family members.
DISCUSSION
I. Failure to Provide Jury Instructions to Start Deliberations Over
A juror failed to appear on the second day of deliberations due to a family emergency and could not be reached. The trial court discharged the juror and substituted an alternate juror. Appellant claims that the trial court violated his right to a unanimous jury verdict by failing to instruct the jury with CALCRIM No. 3575 or otherwise instruct the jury to start deliberations anew upon the substitution of the alternate juror. After the jurors departed, the bailiff returned to the courtroom and advised the court that he asked the jurors to figure out a schedule and that they could deliberate until 4:30 p.m. that day. After discussing which records to provide the jury, the prosecutor asked if they should give the records to the jury that afternoon. The clerk of the court informed counsel that the jurors had already left and, with that, the court adjourned at 4:05 p.m. Accordingly, the jury did not deliberate for more than 25 minutes that day. On the next scheduled day of trial, April 14, 2014, one of the jurors was not present for deliberations. The juror had left messages for the court that a close family member had died and, despite several attempts, the court could not contact the juror. The court decided to substitute in an alternate juror and the jurors resumed deliberations at 1:30 p.m. Little additional information regarding deliberations is available from the record, but for the fact that the jurors posed two questions to the court on the afternoon of April 14, 2014.
B. Applicable Law
Penal Code section 1089 sets forth the applicable law with regard to the use of alternate jurors. Although the statutory language does not set forth such a requirement, the California Supreme Court has found the substitution of an alternate juror under section 1089 constitutionally permissible when the jury is instructed "to set aside and disregard all past deliberations and begin deliberating anew." (People v. Collins (1976) 17 Cal.3d 687, 694 (Collins), disapproved on other grounds in People v. Boyette (2002) 29 Cal.4th 381, 462, fn. 19; People v. Nunez and Satele (2013) 57 Cal.4th 1, 58-60 (Nunez and Satele).) "[A] defendant may not be convicted except by 12 jurors who have heard all the evidence and argument and who together have deliberated to unanimity." (Collins, supra, at p. 693.) "'[A] proper construction of section 1089 requires that deliberations begin anew when a substitution is made after final submission to the jury.'" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 446.)
However, a trial court's erroneous failure to give such an instruction required by Collins is reviewed for harmlessness under state law. Since the admonition requirement is imposed as a function of the state Constitution rather than by federal law, the error is tested by the state standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Renteria (2001) 93 Cal.App.4th 552, 559.) The error is reversible only if it is probable that the defendant would have achieved a better result but for the error. (Collins, supra, 17 Cal.3d at p. 697 & fn. 5; Nunez and Satele, supra, 57 Cal.4th 1 at p. 60.)
C. Analysis
Based on the record before us, the deliberations that occurred on the afternoon of April 10, 2014, could have lasted for no more than 25 minutes. Based on the fact that the jurors likely spent some of that time figuring out their schedule, it is entirely possible that the jurors did not start deliberations in earnest that afternoon. However, we cannot rule out that the jurors briefly commenced deliberations that day. Further, respondent effectively concedes the point by omitting argument that there was no error, and solely focuses on the fact that any error was harmless. As it is possible the jurors began deliberations, we will assume error in not providing proper instruction to start deliberations over and will determine whether the error was harmless under state law. (Nunez and Satele, supra, 57 Cal.4th at p. 60.)
1. Length of Deliberations
Appellant acknowledges that the period spent deliberating prior to when the juror was discharged was relatively short, but argues that it was possible that the jurors decided a significant issue in that period of time. Appellant notes that the Supreme Court found it error to not provide instructions for the jury to start deliberations anew when they had deliberated for less than an hour and a half. (Collins, supra, 17 Cal.3d at pp. 690-691, 697.) Despite finding error, the Supreme Court held that the error was harmless, as the case against the defendant was factually very strong. (Id. at 697.) As there was no reasonable probability that a more favorable verdict would have been returned had the jury been properly instructed following the substitution, the court affirmed the judgment. (Id. at pp. 697-698.) On the other hand, in People v. Martinez (1984) 159 Cal.App.3d 661, 665, the court found the failure to admonish the jury to start anew was prejudicial despite the fact that the substitution occurred two hours after the commencement of deliberation, and despite the fact that the jurors deliberated for six days after the substitution. The court did not resolve whether the error was harmless based on the length of deliberation, but focused on the fact that it was a close case where there was strong evidence to support the appellant's defense that it was manslaughter rather than murder. (Ibid.)
While the length of deliberations are a factor to consider, there is no evidence specific to the deliberations in this case to indicate that appellant was harmed from the trial court failing to admonish the jury to start deliberations anew. Accordingly, we will turn to the complexity and strength of the case to determine whether appellant was prejudiced.
2. Complexity and Strength of the Case
Appellant argues that, despite making incriminatory statements to several people, the value of the evidence was relatively weak because of the lack of credibility of the prosecution's witnesses. He claims that each of those witnesses had a motive to implicate him in the crime. Madeline had reason to lie, as she was also charged with the murder of Case and significant evidence linked her to the crime. He further asserts that Terry had motive to protect her sister, Madeline, from prosecution. With regard to Emily, he asserts that her testimony was unreliable, as she was a drug user and was incorrect regarding many facts of the case.
We find appellant's arguments unpersuasive. The jury was provided a significant amount of testimony and evidence to review and the case against appellant was strong. There was motive to retaliate against Chris for his sexual involvement with Adriana. While there was no direct evidence identifying appellant as the shooter or physically linking him to the crime, the circumstantial evidence was strong. Desiree and Madeline arranged for Case and Chris to be at the location of the shooting; earlier that day, appellant and Madeline obtained a rifle from her nephew. After the shooting, Madeline and her nephew assisted appellant in destroying evidence, including flushing bullet casings down the toilet and burning the rifle.
Importantly, appellant made incriminating statements to several different individuals shortly after the shooting. Appellant made separate statements to Madeline, Terry, and Emily. Appellant argues that the testimony of each of the witnesses that described his incriminating statements was unreliable and each had a reason to lie or shift blame to appellant. Madeline did testify in exchange for reduced charges, and it is possible that Madeline had a larger role in the shooting than she admitted to at trial. Unlike Madeline, Emily had little motive to inculpate appellant, but she was an active drug user at the time of the events, which may have affected her ability to correctly observe and recall events. Appellant notes that the details Emily provided of his alleged confessions were not accurate; however, several statements were, including her description of appellant's incriminating statements in which he described the victim as a very large woman. Regardless, these are issues of credibility and it is not the purview of this court to address the credibility of the witnesses. Generally, any doubts as to the credibility of in-court witness should be resolved by the jury. (People v. Brown (2014) 59 Cal.4th 86, 105.) When viewed as a whole, and despite any concerns regarding the credibility of the witnesses, the evidence against appellant was strong.
It is not probable that appellant would have had a more favorable outcome had the trial court provided proper instruction after the alternate juror was substituted. Very little time passed to allow the jury to deliberate prior to the substitution, and the fact that the jury deliberated for two days after a 30-day trial is not indicative that the jury necessarily found that it was a close case. The jury was presented with significant circumstantial evidence by the prosecution that appellant shot Case, including appellant's multiple incriminating statements. In his defense at trial, appellant presented little evidence and instead focused on the lack of physical or direct evidence linking appellant to the shooting and arguing that the prosecution's main witnesses were unreliable. Based on the strength of the prosecution's case, any error from the trial court's failure to properly instruct the jury was harmless. (Nunez and Satele, supra, 57 Cal.4th at p. 60.)
II. Remand in Light of Senate Bill No. 620
As noted above, we granted appellant's petition for rehearing in this matter after the People conceded Senate Bill No. 620 applies retroactively, but contended that remand is not appropriate because no reasonable court would exercise the newly enacted discretion under Senate Bill No. 620 to strike the firearm enhancement in this case. The People point to the fact that appellant was convicted of first degree murder and a prior serious felony conviction as well as other felony and misdemeanor convictions. They argue it is not reasonably probable that the trial court would exercise its discretion to strike the firearm enhancement even if it had the authority to do so.
While the facts of this case and the trial court's sentencing decisions strongly suggest it would not strike the firearm enhancements at issue here if it had discretion to do so at the time, we do not agree that there is no purpose to remanding this case. The sole case cited by the People in support of their position, People v. Gutierrez (1996) 48 Cal.App.4th 1894, is distinguishable on the fact that the court in Gutierrez stated clearly it did not find "'any good cause to strike'" the prior conviction at issue and "'a lot of reasons not to,'" concluding that the appellant was "'the kind of individual the law was intended to keep off the street as long as possible.'" (Id. at p. 1896.) In contrast, here the trial court sentenced appellant to an additional, consecutive 25-year-to-life term based on the gun use enhancement without further comment. This case is, therefore, more like cases such as People v. Brown (2007) 147 Cal.App.4th 1213, 1228, where the court noted that it is generally appropriate to remand for resentencing when a court proceeded through sentencing erroneously believing it lacked discretion to act in a certain way. While we offer no position on how the trial court should act when exercising its newfound discretion under Senate Bill No. 620, we conclude the trial court should be provided the opportunity to exercise that discretion in the first instance.
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court to exercise its discretion under Penal Code section 12022.53, subdivision (h), as amended by Senate Bill No. 620, and, if appropriate following exercise of that discretion, to resentence appellant accordingly.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
SMITH, J.
Justice Gomes was part of the panel that originally heard this matter. Unfortunately, he passed away on March 6, 2018. Justice Smith was assigned to this case in his stead. --------