People v. Dixon CA1/1 ( 2024 )

Filed 10/3/24 P. v. Dixon CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A170326
v.
ANDREW K. DIXON, (Napa County
Super. Ct. No. 23CR002101)
Defendant and Appellant.
Under a plea agreement, defendant Andrew Dixon was sentenced to six
years and four months in prison. He appealed, and the trial court denied his
request for a certificate of probable cause. Dixon’s appellate counsel asked
this court for an independent review of the record under People v. Wende
(1979) 25 Cal.3d 436 (Wende). Dixon then filed a supplemental brief raising
several issues.
We conclude that the claims raised by Dixon lack merit. After
independently reviewing the record, we find no other arguable issues. Thus,
we affirm, except we order that a clerical error in a minute order be corrected.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
On the morning of September 16, 2023, the power went out at the
Silverado Trail home of 61-year-old J.B. and his wife.1 When J.B. went
outside to investigate the power outage, he saw a man, later identified as
Dixon, standing next to the electrical panel. Dixon was holding “a large
knife” with the blade pointed at J.B. J.B. asked what Dixon was doing, and
Dixon “lunged towards him with the knife.” During the ensuing struggle,
Dixon stabbed J.B. in the back, causing “a stab wound approximately 2 to 3
inches in length . . . on his lower back” that required stitches.
J.B. pulled the knife out of his own back and stabbed Dixon. Dixon
started to run away, and J.B. “tackled him.” J.B. yelled for his wife to call
911, and he was able to detain Dixon until law enforcement arrived. While
J.B. was holding Dixon, Dixon asked whether J.B. was “with the KKK” and
was “talking [g]ibberish.”
A few minutes before the power went out, the home’s surveillance
cameras had recorded a man walk into the home’s patio and then toward the
outdoor electrical panel. Later investigation revealed that the panel’s
switches were all “turned in the off position,” a window screen had been
removed from a building on the property, and someone other than J.B. or his
wife had recently been inside that building. Dixon later told law enforcement
that he wanted “to go inside and eat some food” because he was hungry, and
he turned off the power once he noticed the cameras so he would not “get in
any trouble.”
1 The underlying facts are drawn from the preliminary hearing
transcript, to which Dixon stipulated as the factual basis for his plea.
2
An information charged Dixon with felony counts of attempted murder,
assault with a deadly weapon, attempted first degree burglary, and second
degree burglary.2 It was alleged that he personally used a deadly or
dangerous weapon during the attempted murder and attempted burglary and
that he personally inflicted great bodily injury (GBI) during the attempted
murder and the assault with a deadly weapon.3 Finally, as to all the counts
except second degree burglary, the information alleged three aggravating
factors under California Rules of Court, rule 4.421(a) and (b): that the crimes
involved acts disclosing a high degree of cruelty, viciousness, or callousness;
that Dixon was armed with a weapon; and that he was engaged in violent
conduct indicating a serious danger to society.
Under a plea agreement, Dixon pled no contest to the counts of assault
with a deadly weapon, attempted first degree burglary, and second degree
burglary. He also pled no contest to the GBI allegation accompanying the
assault count and admitted the three aggravating factors. In exchange, it
was agreed that he would be sentenced to six years and four months in
prison, including a three-year term for the GBI enhancement, and the
remaining charge and allegations were dismissed.
In March 2024, the trial court sentenced Dixon to the agreed-upon
term, composed of the low term of two years for assault with a deadly
weapon, a consecutive term of three years for the GBI enhancement, and
consecutive terms of eight months each, one-third the midterm, for the
2 The charges were brought under Penal Code sections 187 and 664
(attempted murder) 245, subdivision (a)(1) (assault with a deadly weapon),
459 and 664 (attempted burglary), and 459 (burglary). All further statutory
references are to the Penal Code.
3 The deadly-weapon allegations were made under section 12022,
subdivision (b)(1), and the GBI allegations were made under section 12022.7,
subdivision (a).
3
remaining two convictions. Dixon appealed and sought a certificate of
probable cause on the basis that “after researching the allegation of [GBI]
after getting sentenced,” he “believe[d] that [J.B.’s] wound is not GBI.” The
trial court denied the request.
II.
DISCUSSION
In his supplemental brief, Dixon raises two categories of issues. First,
he claims his trial counsel rendered ineffective assistance in several respects,
including by failing to explain the charges and the plea’s consequences and by
failing to seek mental health diversion. Second, he claims the trial court
should have exercised its discretion to strike the GBI enhancement under
section 1385. These contentions fail.
We begin with Dixon’s claims of ineffective assistance of counsel. “On
direct appeal, a conviction will be reversed for ineffective assistance only if
(1) the record affirmatively discloses counsel had no rational tactical purpose
for the challenged act or omission, (2) counsel was asked for a reason and
failed to provide one, or (3) there simply could be no satisfactory explanation.
All other claims of ineffective assistance are more appropriately resolved in a
habeas corpus proceeding.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Here, there is nothing in the record supporting Dixon’s contentions that
his trial counsel “failed to explain” the plea or the consequences of the GBI
enhancement and did not provide Dixon’s “discovery report till after the
plea.” Nor does the record preclude the conclusion that counsel may have
had a rational reason for failing to seek mental health diversion. Although
the circumstances of the crimes suggest Dixon might have been experiencing
mental health problems, counsel could have concluded that he was likely to
be found ineligible or unsuitable for diversion for any number of reasons,
such as that he posed “an unreasonable risk of danger to public safety . . . if
4
treated in the community.” (§ 1001.36, subd. (c)(4).) In sum, the record
before us fails to demonstrate any ineffective assistance of counsel.
Dixon also claims that under section 1385, the trial court should have
given “[g]reat consideration” to striking the GBI enhancement in light of his
mental health issues. He states that he is “diagnosed with major depression
and major anxiety” and that during the crimes, he “was deep in a depressive
episode after the death of [his] father and was self-medicating on
methamphetamine.” It is true that in determining whether to strike an
enhancement, trial courts must “consider and afford great weight to evidence
offered by the defendant to prove” certain mitigating circumstances,
including that “[t]he current offense is connected to mental illness.” (§ 1385,
subd. (c)(2)(D).) But Dixon agreed to a three-year term for the GBI
enhancement under the plea bargain, precluding him from challenging the
enhancement on appeal unless he obtained a certificate of probable cause.
(See People v. Stamps (2020) 9 Cal.5th 685, 694–695, 700.) Although his
appellate counsel raises the question of whether the trial court improperly
denied the request for a certificate, Dixon did not seek writ review of that
ruling. (See People v. Johnson (2009) 47 Cal.4th 668, 676.) In any case, as
part of the plea agreement he waived his right to appeal from matters
affecting the plea’s validity. Thus, Dixon also fails to identify any arguable
issues involving section 1385.
After independently reviewing the record, we discern no other
potentially meritorious issues. Dixon was advised of his constitutional rights
and the consequences of his plea before he entered it, and he received the
sentence promised under the plea agreement. The trial court found that his
waiver of rights was knowing and intelligent, that the plea was free and
voluntary, and that there was a factual basis for the plea. Finally, he was
5
represented by counsel throughout the proceedings, and as discussed above
the record does not reveal any ineffective assistance of counsel.
There is, however, a clerical error in the minute order from the
sentencing hearing. Under the heading “PROTECTIVE ORDER,” the minute
order states, “The Court executes the Criminal Protective Order (CLETS). [¶]
Copy of said order is provided to defendant in open Court this date.” The
plea agreement indicates that Dixon accepted a “10 yr. CLETS order for
victims,” and at the end of the sentencing hearing the prosecutor stated, “The
CLETS order will be provided once—” The trial court interrupted and said,
“The Court will sign the CLETS order once you have provided it.” But no
such order is in our record, and the reporter’s transcript of the sentencing
hearing does not reflect that Dixon received one. Moreover, it appears there
was no statutory authority for issuing a postconviction criminal protective
order in this case. (See People v. Robertson (2012) 208 Cal.App.4th 965, 995–
996.) Thus, we order that the language about a CLETS order be stricken
from the sentencing minute order.
III.
DISPOSITION
The clerk of the superior court is directed to amend the March 22, 2024
minute order to remove the references to a CLETS order. The judgment is
otherwise affirmed.
6
_________________________
Humes, P. J.
WE CONCUR:
_________________________
Banke, J.
_________________________
Hill, J.*
*Judge of the Superior Court of the County of San Mateo, assigned by
the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
People v. Dixon A170326
7