Opinion
B300285
08-13-2020
THE PEOPLE, Plaintiff and Respondent, v. DESMEN DEMAY MIXON, Defendant and Appellant.
Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA129185) APPEAL from an order of the Superior Court of Los Angeles County, Michael Shultz, Judge. Affirmed. Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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Desmen Demay Mixon appeals the trial court's denial of his request for resentencing. We affirm. All statutory citations are to the Penal Code.
In September 2013, Mixon and a codefendant were charged with second degree robbery (§ 211), with enhancements that they committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), and that a principal used a firearm (§ 12022.53, subds. (b) & (e)(1)). The information also alleged Mixon had a prior burglary conviction, putting Mixon on notice this offense constituted a strike, a serious felony, and a prior prison term under section 667, subdivisions (a)(1) and (b)-(i), section 667.5, subdivision (b), and section 1170.12.
Later in 2013, a jury found Mixon guilty of robbery and found true the enhancements. The trial court then found true the prior conviction allegation.
The court sentenced Mixon to 21 years in prison. This sentence consisted of the three-year midterm for the robbery, doubled under the three strikes law, plus 10 years for the gang enhancement and five years for the prior conviction enhancement. The court stayed the firearm enhancement and struck the prior prison term enhancement. The court also imposed a restitution fine of $5,700 and other fees.
Mixon appealed. He challenged the trial court's refusal to bifurcate gang evidence from the trial on the robbery count. Mixon also challenged the trial court's refusal to declare a mistrial after a prosecution witness mentioned Mixon's prior incarceration to the jury. We affirmed the judgment in an unpublished decision. (People v. Mixon (June 2, 2015, B256389) [nonpub. opn.].) Two months later, our Supreme Court denied Mixon's petition for review.
In March 2019, Mixon filed a "Petition for Review of Sentence / Modification Pursuant to Penal Code: 1170.126 / S.B. 1393 and 620" in the trial court. Mixon asked the court to strike his enhancements in light of recent amendments made to various criminal statutes. The court denied the petition, explaining there was no resentencing option because the amendments applied only to cases that were not yet final, and Mixon's case was long final. Regarding section 1170.126, the court explained this statute was not applicable because Mixon was not serving an indeterminate sentence.
Mixon appealed again, and we appointed counsel to represent him. Appointed counsel examined the record and filed an opening brief raising no issues. Counsel asked this court to review the record independently under People v. Wende (1979) 25 Cal.3d 436.
Mixon then filed a two-page letter raising four issues:
1. Senate Bill No. 1393 gave courts authority to strike certain enhancements or the associated punishment. Mixon asks us to strike his enhancements.
2. Before his trial, Mixon admitted to a police officer he was a gang member. The prosecution's expert relied on this admission during her testimony at trial. Mixon claims this reliance, combined with his inability to cross-examine the officer and the expert's use of "field identification cards," violated Crawford v. Washington (2004) 541 U.S. 36.
3. Mixon claims there was insufficient gang evidence.
4. Mixon asks us to remove the court-ordered restitution.
When a defendant appeals the denial of postconviction relief, we have no independent duty to review the record for reasonably arguable issues. (People v. Cole (Aug. 3, 2020, B304329) ___Cal.App.5th___ [2020 WL 4435275, p. *8].) If the defendant files a supplemental brief, we evaluate any arguments presented in the brief and issue an opinion disposing of the trial court's order on the merits. (Ibid.) Thus we do not independently review the record, but we evaluate Mixon's arguments in his supplemental brief and make a decision on the merits.
We address the issues Mixon raises in his supplemental filing.
Issue 1 : In recent years, the Legislature has amended several relevant Penal Code statutes to allow trial courts to strike enhancements or related punishment. (See People v. Garcia (2018) 28 Cal.App.5th 961, 971 (Garcia) [discussing Senate Bill No. 1393's changes to section 667, subdivision (a) and section 1385, subdivision (b), allowing courts to strike a prior serious felony conviction for sentencing purposes]; People v. Fuimaono (2019) 32 Cal.App.5th 132, 134 (Fuimaono) [discussing Senate Bill No. 620's changes to section 12022.5, subdivision (c), and section 12022.53, subdivision (h), allowing courts to strike firearm enhancements].) While these amendments apply retroactively to nonfinal judgments, they generally do not apply to convictions that became final before the provisions took effect. (Garcia, at pp. 971-973; Fuimaono, at p. 135.)
Mixon's judgment of conviction became final years before the effective dates of the pertinent amendments, January 1, 2019 for Senate Bill No. 1393, and January 1, 2018 for Senate Bill No. 620. (See Garcia, supra, 28 Cal.App.5th at pp. 971-972; Fuimaono, supra, 32 Cal.App.5th at p. 134.) Moreover, Mixon was not sentenced at all for the firearm enhancement. Mixon is not entitled to resentencing under Senate Bill No. 1393 or Senate Bill No. 620.
Apart from seeking relief pursuant to this legislation, Mixon's resentencing motion asked the trial court to strike enhancements pursuant to section 1170.126. On its face, this provision makes clear it applies only to defendants serving an "indeterminate term." (§ 1170.126, subd. (a) ["The resentencing provisions under this section and related statutes are intended to apply exclusively to persons presently serving an indeterminate term of imprisonment . . . ."].) Mixon is serving a 21-year sentence, not an indeterminate term. He is not entitled to resentencing under section 1170.126.
Issues 2 and 3: Mixon's second and third issues attack aspects of his 2013 criminal trial. These issues are not properly before us. This appeal concerns Mixon's request for resentencing in light of sentencing law changes enacted since Mixon's conviction. Mixon previously appealed his conviction, and we considered all issues he raised, including issues concerning Mixon's gang membership and the related expert testimony. To the extent Mixon is claiming certain issues concerning his trial remain, he forfeited these issues by failing to raise them in his direct appeal. (See People v. Navarro (2013) 212 Cal.App.4th 1336, 1347, fn. 9 [all issues are subject to the rule of forfeiture].)
Issue 4 : In one sentence in his supplemental filing, Mixon asks us to "remove restitution," citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), People v. Castellano (2019) 33 Cal.App.5th 485, and People v. Frandsen (2019) 33 Cal.App.5th 1126 (Frandsen). Dueñas held imposing certain fines and fees on indigent defendants without considering their ability to pay violates due process. (Dueñas, at pp. 1160, 1168.) Courts have been critical of Dueñas. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, 322, 329 (Hicks) [rejecting Dueñas as wrongly decided and citing cases reaching the same conclusion], review granted Nov. 26, 2019, S258946.) The Supreme Court currently is considering this issue, having granted review in Hicks and in People v. Kopp (2019) 38 Cal.App.5th 47, 95-96 [partially following Dueñas], review granted Nov. 13, 2019, S257844.
The trial court imposed a restitution fine of $5,700 on Mixon. Neither our record nor Mixon's supplemental filing mention Mixon's ability to pay this fine or any other. Nor does Mixon claim he objected to the trial court's imposition of the fine. Mixon has forfeited any challenge to the fine. (See Frandsen, supra, 33 Cal.App.5th at pp. 1153-1154.)
DISPOSITION
The trial court's order is affirmed.
WILEY, J. We concur:
BIGELOW, P. J.
GRIMES, J.