Opinion
A156637
06-12-2020
THE PEOPLE, Plaintiff and Respondent, v. DEMETROIS TERRELL DIXSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 150971)
Demetrois Terrell Dixson appeals after the trial court denied his post judgment motion seeking relief from a purportedly unauthorized sentence. Dixson's appointed counsel filed a brief raising no issues and asking us to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Dixson was advised of his right to file a supplemental brief and did so. In our review of the record, we discovered arguable issues to be briefed. After obtaining briefs from counsel, we conclude that Dixson's sentence is unauthorized and that the abstract of judgment contains additional clerical errors. Accordingly, we remand for resentencing and correction.
BACKGROUND
A.
Between September 2004 and April 2005, Dixson committed multiple forcible sexual offenses and other crimes against his girlfriend, Jane Doe. In 2006, a jury convicted Dixson of the following felonies: (1) three counts of forcible rape (counts one, six, nine; Pen. Code, § 261, subd. (a)(2)); (2) unlawful sexual intercourse with a minor (count two; § 261.5, subd. (c)); (3) battery with serious bodily injury (count three; § 243, subd. (d)); (4) corporal injury to a cohabitant (counts four-five; § 273.5, subd. (a)); (5) forcible sodomy (count seven; § 286, subd. (c)(2)); (6) forcible oral copulation (count eight; former § 288a, subd. (c)(2)); (7) criminal threats (count 10; § 422); (8) attempting to dissuade a witness (count 14; § 136.1, subd. (a)(2)); and (9) dissuading a witness (count 15; § 136.1, subd. (b)(2)). He was also convicted of four misdemeanor counts for disobeying a restraining order (counts 11-13; § 273.6, subd. (a)) and knowingly violating a protective order (count 16; § 166, subd. (c)(1)).
Undesignated statutory references are to the Penal Code.
B.
A different panel of this Division summarized the facts underlying Dixson's crimes in a prior appellate opinion. (See People v. Dixson (April 22, 2008, A113637) 2008 Cal.App.Unpub.LEXIS 3366 [nonpub. opn.] (Dixson I).) On our own motion, we take judicial notice of this opinion and the underlying record. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) We focus on the facts most relevant to the issues presented here.
We disregard the exhibits Dixson attached to his supplemental briefs, as they are outside the appellate record. Dixson also filed a petition for writ of habeas corpus (No. A159027). By separate order, we deny the habeas petition.
In February 2005, Dixson became angry with Jane when her close friend, Anita, arrived at Jane's dorm room while Dixson remained in bed. He asked Anita to wait outside and squeezed Jane's cheeks until she choked on her own blood. Dixson then punched Jane in the leg and told her that he hoped she could no longer walk. This incident served as the basis for Dixson's conviction on one count of corporal injury to a cohabitant (count four; § 273.5, subd. (a)). Later that day, Jane told Anita about this incident, the forcible sexual offenses, and the other crimes Dixson had committed in the preceding months (counts one-four). Anita observed Jane limping.
About two months later, Jane contacted the police and obtained a restraining order. Dixson was arrested. After his arrest, Dixson called Jane and asked her to drop the charges. Jane told him he should not be calling her. Nonetheless, Dixson telephoned her several more times that day, including while she was with two police officers. One of the officers told Dixson that he should not be contacting Jane because a restraining order had been issued. This conduct served as the basis for Dixson's conviction on three misdemeanor counts of disobeying a domestic relations restraining order (counts 11-13; § 273.6, subd. (a)).
Three days later, on April 16, 2005, Anita received at least 10 telephone calls from Dixson. During these phone calls, Dixson told Anita that he was "innocent" and that she was the only one who could talk to Jane about "chang[ing] her statement." A woman called her from a blocked telephone number a few minutes later and said, "Demetrois knew where [Anita] lived." Dixson then called again and told Anita he was recording their conversation. Anita pretended to agree with Dixson's version of various events because she was afraid. This conduct was the basis for Dixson's conviction of one count of attempting to dissuade a witness (count 14; § 136.1, subd. (a)(2)).
On that same day, Dixson called Jane and left messages on her voice mail in which he played portions of his conversation with Anita and tried to discourage Jane from prosecuting the case. Dixson said, " 'You don't want me to go to jail. . . . [L]et this shit ride.' " This conduct was the basis for Dixson's conviction of one count of dissuading a witness from prosecuting a crime (count 15; § 136.1, subd. (b)(2)).
C.
After the jury verdict, Dixson obtained a new trial on one of the forcible rape counts (count one), and the trial court sentenced him to prison for an aggregate term of 27 years and 4 months on the remaining counts. Most importantly, the trial court imposed a four-year aggravated term on count four (corporal injury to a cohabitant; § 273.5, subd. (a)), which was designated the principal term. The trial court also imposed two subordinate consecutive terms of eight months (one-third the two-year middle term) for Dixson's witness intimidation convictions (counts 14 and 15). (§§ 18, 136.1.)
Dixson appealed from the judgment and, in Dixson I, this court concluded the imposition of the upper term for count four violated Dixson's right to a jury trial under Cunningham v. California (2007) 549 U.S. 270. In 2008, after our remittitur issued and California's determinate sentencing law was amended to remove the constitutional problem identified in Cunningham, the trial court imposed the same sentence. The terms imposed on counts 14 and 15 remained the same.
D.
About 10 years later, the California Department of Corrections and Rehabilitation (Department) sent a letter to the superior court, advising it of clerical errors in Dixson's abstract of judgment and that his sentence appeared to be unauthorized. Specifically, the Department pointed out that section 1170.15 requires a full middle two-year term when a consecutive sentence is imposed for dissuading a witness to another felony (counts 14 and 15). In response, the trial court issued an amended abstract of judgment, without notice or hearing, that increased Dixson's aggregate sentence to 28 years.
Dixson, acting in propria persona, filed a notice of appeal. After filing his notice of appeal, Dixson also filed an ex parte motion in the trial court challenging its failure to resolve the sentencing error with respect to counts 14 and 15, and complaining that his custody credits had been miscalculated. In response, the trial court issued a second amended sentencing minute order and a new amended abstract of judgment. The new amended abstract of judgment again reflected an aggregate sentence of 27 years and 4 months. The terms imposed on counts 14 and 15 remained unchanged, and Dixson's motion was otherwise denied.
An order declining to correct an allegedly unauthorized sentence is appealable under section 1237, subdivision (b). We treat Dixson's notice of appeal as having been filed after this appealable order.
DISCUSSION
We conclude the trial court imposed an unauthorized sentence with respect to counts 14 and 15. We also identify two clerical errors in the abstract of judgment.
A.
1.
Under section 1170.1, subdivision (a), the term on a subordinate, consecutive count is usually limited to one-third the middle term. Section 1170.15 creates an exception to this rule: "Notwithstanding subdivision (a) of Section 1170.1 which provides for the imposition of a subordinate term for a consecutive offense of one-third of the middle term of imprisonment, if a person is convicted of a felony, and of an additional felony that is a violation of Section 136 .1 . . . and that was committed against the victim of, or a witness or potential witness with respect to, or a person who was about to give material information pertaining to, the first felony, . . . the subordinate term for each consecutive offense that is a felony described in this section shall consist of the full middle term of imprisonment for the felony for which a consecutive term of imprisonment is imposed." (Italics added.)
Section 1170.15 creates an alternative sentencing scheme, not an enhancement (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1834 (Hennessey)), and it only applies "if the trial court first determines it will impose consecutive sentences for the dissuading a witness felony." (People v. Woodworth (2016) 245 Cal.App.4th 1473, 1476.) But if the trial court decides to impose a consecutive term, imposition of the full middle term is mandatory. (Id. at pp. 1478-1479.)
An unauthorized sentence may be corrected by an appellate court even in the absence of objection. (People v. Turner (2002) 96 Cal.App.4th 1409, 1415.) "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is 'clear and correctable' independent of any factual issues presented by the record at sentencing." (People v. Scott (1994) 9 Cal.4th 331, 354; accord, People v. Smith (2001) 24 Cal.4th 849, 853 [unauthorized sentences present "a pure question of law with only one answer, any such error is obvious and correctable without reference to any factual issues in the record or remanding for further findings" (italics omitted)].) We may set aside an unauthorized sentence so a proper sentence may be imposed, even if the new sentence is harsher. (People v. Delgado (2010) 181 Cal.App.4th 839, 854.)
2.
Dixson contends the trial court's imposition of one-third the midterm on counts 14 and 15 was authorized despite its simultaneous determination that such terms were to be served consecutive to the principal felony term. We disagree.
Once Dixson was charged with a violation of section 136.1, he was on notice the court was required to impose a full two-year term of imprisonment if he was convicted of the first felony and the trial court chose consecutive sentences. (Hennessey, supra, 37 Cal.App.4th at p. 1830 ["section 1170.15 need not be specifically pleaded and proven"]; People v. Torres (2011) 198 Cal.App.4th 1131, 1138.) And, section 1170.15 does not require proof that the "defendant specifically intended to dissuade a witness regarding a particular crime." (Hennessey, supra, 37 Cal.App.4th at p. 1834.) A person violates section 136.1 by dissuading, or attempting to dissuade, a witness or victim from making a report, testifying, or assisting in the prosecution of a crime. (People v. Torres, supra, 198 Cal.App.4th at p. 1138.) "Under section 1170.15, the sentencing judge need only determine if that crime was a felony of which the defendant was convicted[.]" (Hennessey, supra, 37 Cal.App.4th at p. 1835.) The sentencing judge need not engage in fact finding; it need only determine that the defendant was convicted of the underlying crime and that it was a felony. (See ibid.)
Dixson argues this case is different because, unlike in Hennessey, Dixson was convicted of both felonies and misdemeanors. Dixson's position is that section 1170.15 may not apply because the jury could have found Dixson's acts of witness intimidation related solely to trying to dissuade Jane and Anita from testifying about or prosecuting the misdemeanors he committed on April 13. (See People v. Evans (2001) 92 Cal.App.4th 664, 670 ["for section 1170.15 to apply, the dissuasion for which the defendant was convicted must relate to another felony, of which the defendant was also convicted" (italics added)].) Notably, however, Dixson does not cite any evidentiary support for his argument, and the record does not provide any.
Not including the two witness intimidation counts, Dixson was convicted of nine felony counts, in addition to the three misdemeanor counts. And the acts underlying those nine felonies and three misdemeanors all occurred before April 16, 2005—when Dixson called both Anita and Jane and attempted to dissuade them from, respectively, testifying and assisting the prosecution of charges against him. This evidence certainly does not suggest Dixson intended to dissuade Jane and Anita from cooperating to prosecute or testifying about only the misdemeanor offenses. Rather, Dixson intended to broadly dissuade them from testifying about or prosecuting any of the offenses, including count four. In fact, Anita does not appear to have been a witness to the misdemeanor offenses in any way.
Because the trial court appears to have understood that it had discretion on whether to impose consecutive terms but did not understand that if it did so the terms for witness intimidation must be imposed for the full middle term, we agree that the eight-month terms for counts 14 and 15 could not lawfully be imposed and that the matter must be remanded for full resentencing, in Dixson's presence. (See §§ 669, subd. (a), 1170.15; People v. Woodworth, supra, 245 Cal.App.4th at pp. 1478-1479; People v. Delgado, supra, 181 Cal.App.4th at p. 855 [appropriate to remand for full resentencing after discovering unauthorized sentence].)
3.
Finally, Dixson contends the trial court could not impose full middle terms, pursuant to section 1170.15, without violating Dixson's right to jury trial because the jury was not asked to make a specific finding regarding the connection between the dissuading counts and any "first" felony. (See Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) ["[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt"].)
Here, the jury found Dixson guilty of nine felony counts, including count four, in addition to finding him guilty of violating section 136.1 in counts 14 and 15. Jane was the victim of count four and the victim of count 15. Jane recounted the facts underlying the principal felony count to Anita, who also observed Jane's injuries and gave a witness statement to police. Anita was the victim of count 14. On remand, if the trial court imposes consecutive, full middle terms for counts 14 and 15, this sentence will be based on facts found true by the jury beyond a reasonable doubt and will not violate Apprendi. (Blakely v. Washington (2004) 542 U.S. 296, 303 ["the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict"]; Oregon v. Ice (2008) 555 U.S. 160, 164; People v. Black (2007) 41 Cal.4th 799, 821-823, overruled on other grounds in Cunningham v. California, supra, 549 U.S. at p. 293.) We express no opinion as to how the trial court should exercise its discretion.
B.
Dixson also argues, and the Attorney General concedes, that on remand the abstract of judgment must be corrected to reflect the trial court's award of 45 days of local conduct credit and to reflect his recalculated actual custody credits. We accept the concession.
At Dixson's original 2006 sentencing hearing, the trial court initially stated, as its tentative sentence, that it would award Dixson only 302 actual custody credits and zero conduct credits due to his refusal to follow court orders. However, after receiving argument from counsel, the trial court indicated it was awarding Dixson 302 days of actual custody credits plus conduct credits earned at 15 percent. (See §§ 667.5, subd. (c), 2933.1, subds. (a), (c) [limiting conduct credits for specified offenses to 15 percent].) However, the 2006 abstract of judgment erroneously reflects an award of 302 days of actual custody credits and zero conduct credits. Thereafter, at the 2008 resentencing hearing and when the abstract of judgment was amended in 2019, the court neither corrected the conduct credits awarded nor updated Dixson's actual custody credits.
We will order the trial court to recalculate Dixson's total custody credits, after calculating his current actual credits and correcting its clerical error by adding 45 local conduct credits. (See §§ 2900.1, 2933.1; People v. Buckhalter (2001) 26 Cal.4th 20, 29, 33; People v. Mitchell (2001) 26 Cal.4th 181, 186-187 [clerical errors in abstract of judgment may be ordered corrected by appellate courts whenever discovered]; People v. Taylor (2004) 119 Cal.App.4th 628, 647 ["sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered"].)
C.
Finally, the abstract of judgment also states that Dixson's conviction for corporal injury to a cohabitant (§ 273.5, subd. (a)), in count five, constitutes a violent felony. The parties agree this was a clerical error that must be corrected because this offense is not enumerated as a violent felony, within the meaning of section 667.5, subdivision (c), and because there is no finding or evidence that, in count five, Dixson inflicted great bodily injury on Jane. (See § 667.5, subd. (c)(8) [identifying as a violent felony "[a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice"].) We will order the superior court clerk to correct the error on remand.
DISPOSITION
Dixson's sentence is reversed, and the matter is remanded for the limited purpose of allowing the trial court to resentence Dixson, in his presence, in accordance with the principles expressed in this opinion. The superior court clerk is also directed to prepare, and forward to the Department of Corrections and Rehabilitation, an amended abstract of judgment that (1) awards all actual custody credits (§ 2900.1), (2) reflects Dixson's award of 45 days of presentence conduct credits under section 2933.1, and (3) reflects that count five is not a violent felony within the meaning of section 667.5, subdivision (c).
/s/_________
BURNS, J. We concur: /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.