People v. Dixon CA2/4

Filed 2/14/22 P. v. Dixon CA2/4
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B307528
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BA128574)
v. OPINION FOLLOWING
TRANSFER FROM
ARCHIE PERNELL DIXON, SUPREME COURT
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles
County, Robert J. Perry, Judge. Reversed and remanded.
Alan Siraco, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General,
Amanda V. Lopez and Gary A. Lieberman, Deputy Attorneys General,
for Plaintiff and Respondent.
This appeal lies from the trial court’s summary denial of
defendant and appellant Archie Pernell Dixon’s second petition under
Penal Code section 1170.95 seeking resentencing on his conviction for
attempted murder.1 We affirmed the court’s summary denial in a
previous opinion (People v. Dixon (July 19, 2021, B307528) [nonpub.
opn.] (Dixon II)). Thereafter, the Supreme Court granted review and
transferred the matter back to us with directions to vacate the decision
and reconsider the cause in light of Senate Bill No. 775 (Stats. 2021, ch.
551, § 2) (S.B. 775), which expanded section 1170.95 to provide a
procedural mechanism for those convicted of attempted murder under
the natural and probable consequences doctrine to seek resentencing.
We vacate our opinion in Dixon II and, after reconsidering the
cause, agree with the parties that the trial court erred by summarily
denying appellant’s petition under section 1170.95 as amended by S.B.
775. We reverse the order and remand for the trial court to consider the
petition as to appellant’s attempted murder conviction under the
current version of section 1170.95.
FACTUAL AND PROCEDURAL BACKGROUND2
On March 23, 1995, Kevin Simmons, Robert Adams, and appellant
went to a Lancaster home to steal marijuana. Inside the home were a
male and female victim. After appellant and his cohorts entered the
1 Undesignated statutory references are to the Penal Code.
2 We recite the factual and procedural background from our opinion in Dixon
II.
2
home, Simmons held the male victim at gunpoint. As instructed by
Simmons, appellant assisted in binding the man with a telephone
extension cord before searching the house for marijuana. Appellant
took the marijuana and money that he had found to one of the victim’s
cars and waited. After some time passed, appellant returned to the
house to discover Adams pouring alcohol on the man while Simmons
beat him over the head with a dumbbell. Simmons and Adams began
kicking and beating the woman, at which point Adams tried to give
appellant a gun. Appellant refused and told Adams he was going to
return to the car with more stolen items. Afterward, appellant saw the
living room engulfed in flames. Simmons and Adams came to the car,
and all three left the crime scene. When police officers responded to the
home, they found a man and woman lying on the living room floor. The
man was dead; the woman was barely alive, gagged, bound, and covered
in blood.
A jury convicted appellant in 1997 of first degree murder (§ 187,
subd. (a), count 1), robbery (§ 211, count 2), and attempted murder
(§ 664/187, subd. (a), count 3). The jury found true that the murder was
committed during the commission of a robbery (§ 190.2, subd. (a)(17)),
and that a principal was armed with a firearm during the murder,
robbery, and attempted murder (former § 12022, subd. (a)(1)). The jury
also found that the attempted murder was willful, deliberate, and
premeditated (§ 664/187, subd. (a)). Appellant was sentenced to life
without the possibility of parole (LWOP) plus one year for murder on
count 1, and a consecutive term of life imprisonment for attempted
3
premeditated murder on count 3 (the court stayed appellant’s sentence
for robbery on count 2).
We affirmed appellant’s conviction in 1999. (People v. Dixon
(Feb. 24, 1999, B113489 [nonpub. opn.] (Dixon I).)3
In 2018, the trial court granted appellant’s petition for writ of
habeas corpus on the robbery-murder special circumstance (see People
v. Banks (2015) 61 Cal.4th 788), struck the LWOP sentence on count 1,
and resentenced appellant to 25 years. The court maintained the same
sentences it had imposed on counts 2 and 3.
In 2018, the Legislature passed, and the Governor approved,
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (S.B. 1437), which came
into effect January 1, 2019 (Stats. 2018, ch. 1015, § 4). As enacted by
S.B. 1437, section 1170.95 provided a procedural mechanism for
defendants convicted of murder on a felony murder theory or under the
natural and probable consequences doctrine to seek resentencing.
(Stats. 2018, ch. 1015, § 1.)
In his first petition for resentencing under section 1170.95 filed in
2019, appellant requested that the court vacate his first degree murder
conviction on count 1. Over the People’s objection, the trial court
granted the petition and struck appellant’s sentence on count 1. The
court re-imposed a life imprisonment sentence for attempted
premeditated murder on count 3, and sentenced appellant to a
consecutive term of 10 years for robbery on count 2.
3 We grant appellant’s request to take judicial notice of our prior opinion in
Dixon I.
4
Appellant filed his second section 1170.95 petition on May 23,
2020, this time seeking resentencing on his attempted murder
conviction on count 3. Prior to appointing appellant counsel, on July 6,
2020, the trial court summarily denied the petition, reasoning that
section 1170.95 did not apply to appellant’s conviction for attempted
murder.
We affirmed the order summarily denying appellant’s second
petition in Dixon II. In our decision, we noted that appellant had failed
to furnish the court with a record demonstrating that he was tried and
convicted of attempted murder under the natural and probable
consequences doctrine. (Dixon II, supra, at p. 8.) Assuming the jury
was instructed on such a theory, we still found appellant ineligible relief
under former section 1170.95, which at the time omitted any reference
to final convictions for attempted murder. (Id. at pp. 8–9.)
Appellant petitioned for review in the Supreme Court. On
September 22, 2021, the Supreme Court granted review and deferred
consideration and disposition pending further order of the court.
While the matter was pending before the Supreme Court, on
October 5, 2021, the Governor signed into law S.B. 775. Effective
January 1, 2022, S.B. 775 amends section 1170.95 by expanding the
petition process to include individuals of “attempted murder under the
natural and probable consequences doctrine.” (Legis. Counsel’s Digest,
Sen. Bill No. 775 (2021-2022 Reg. Sess).) The legislation was passed as
nonurgency legislation during the regular session, becoming effective on
January 1, 2022. (Cal. Const., art. IV, § 8, subd. (c)(1); see People v.
Camba (1996) 50 Cal.App.4th 857, 862.)
5
On December 22, 2021, the Supreme Court transferred the matter
back to this court and directed that we vacate our decision and
reconsider the cause in light of S.B. 775. In supplemental briefing filed
with this court following the transfer, appellant and the Attorney
General agree that under the amended version of section 1170.95, we
must reverse and remand the order summarily denying appellant’s
petition.
DISCUSSION
Based on the amended version of section 1170.95, we agree with
the parties, and reverse and remand the trial court’s order summarily
denying appellant’s petition.
Under the current version of section 1170.95, appellant may now
be able to establish a prima facie showing of eligibility as to his
attempted murder conviction. (See § 1170.95, subd. (a) [“A person
convicted of . . . attempted murder under the natural and probable
consequences doctrine . . . may file a petition with the court that
sentenced the petitioner to have the petitioner’s . . . conviction vacated
and to be resentenced on any remaining counts”].) Following the
transfer from the Supreme Court, appellant has provided this court the
jury instructions from his trial in 1997. Those instructions demonstrate
that appellant was tried for attempted murder under the natural and
6
probable consequences doctrine.4 An instruction titled “WWLJ 3.02A”
provided:
“One who aids and abets another in the commission of a crime is
not only guilty of that crime, but is also guilty of any other crime
committed by a principal which is a natural and probable consequence
of the crime originally aided and abetted. [¶] In order to find the
defendant guilty of the crime of attempted murder, as charged in
Counts Three [sic], you must be satisfied beyond a reasonable doubt
that:
“(1) The crime of robbery was committed,
“(2) The defendant aided and abetted such crime,
“(3) A co-principal in such crime committed the crime of
attempted murder, and
“(4) The crime of attempted murder was a natural and probable
consequence of the commission of the crime of robbery.
“You may not find a defendant guilty as an aider and abettor of
the attempted murder charged in count 3 unless a reasonable person
under like circumstances and in the same position as the defendant
would have recognized that the crime of attempted murder was a
reasonably foreseeable consequence of the act aided and abetted.”
Because the trial court’s order denying appellant’s petition for
resentencing had not become final prior to the time S.B. 775 went into
effect, the ameliorative provisions in S.B. 775 apply. (See People v.
4 We granted appellant’s motion to augment the record with the jury
instructions that had been given at his trial in 1997.
7
Garcia (2018) 28 Cal.App.5th 961, 973; People v. Vieira (2005) 35
Cal.4th 264, 305.) Thus, we reverse the order denying appellant’s
petition and remand the matter to the trial court with directions to
appoint appellant counsel, if requested, and proceed in accordance with
section 1170.95, subdivision (c). (See People v. Lewis (2021) 11 Cal.5th
952, 957, 962.)
DISPOSITION
The postjudgment order summarily denying appellant’s section
1170.95 petition is reversed. The matter is remanded to the trial court
to appoint appellant counsel, if requested, and hold proceedings in
accordance with section 1170.95, subdivision (c).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.
8