People v. Dixon CA2/8

Filed 9/15/20 P. v. Dixon CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B299415
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA073169)
v.
MARKEISHA NICOLE DIXON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. David C. Brougham, Judge. Affirmed.
J. Kahn, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and Charles S. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Markeisha Nicole Dixon appeals
from the denial of her petition for resentencing pursuant to Penal
Code section 1170.95.
Defendant was one of three individuals charged with the
first degree murder of a college student kidnapped, robbed and
left for dead in the mountains after her throat was slit.
Defendant pled guilty to first degree murder in exchange for the
dismissal of the robbery-murder and kidnapping-murder special
circumstance allegations. The record of conviction demonstrates
defendant was a major participant who acted with reckless
indifference to human life. Defendant is ineligible for
resentencing relief under the changes in the law regarding
liability for felony murder since her 2007 conviction.
Defendant raises numerous contentions challenging the
order denying her petition, all of which were forfeited by her
failure to object in the trial court at the evidentiary hearing. We
therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2006, defendant was charged, along with
codefendant Henry Arnold Singer, with one count of first degree
murder. (Pen. Code, § 187, subd. (a).) Robbery-murder and
kidnapping-murder special circumstances were also alleged.
(§ 190.2, subd. (a)(17).) The charges arose from the August 2001
murder of Christina Burmeister. In a separate information,
James Dixon was also charged with the Burmeister murder.1
Neither Henry Arnold Singer or James Dixon is a party to this
appeal.
1 Because of the common surname, we will refer to James
Dixon as Dixon and Markeisha Dixon as defendant.
2
Two witnesses testified at the preliminary hearing,
Sergeant Joseph Purcell of the Los Angeles County Sheriff’s
Department and Chanson Tyrone. Sergeant Purcell investigated
the death of Ms. Burmeister. Mr. Tyrone was a witness to the
crimes.
On August 18, 2001, a deputy sheriff discovered
Ms. Burmeister’s body in the front passenger seat of her truck on
a gravel turnout on Highway 39 in Azusa Canyon. Her throat
was cut and blood smears in the truck indicated she was killed in
that location. A later autopsy determined the cause of death to
be a knife wound to the throat, causing the victim to have
“drowned on her own blood.”
Sergeant Purcell recovered a cigar butt on the floorboard
beneath the driver’s seat of the victim’s truck. Later testing
established that DNA taken from the cigar butt matched the
DNA profile for Dixon. The investigation also revealed that
three ATM withdrawals, totaling $400, were made from
Ms. Burmeister’s account at Washington Mutual bank within the
span of 90 seconds on the evening of August 17, 2001. Security
footage from the bank showed a person making the withdrawals
holding the hood of their sweatshirt down to obscure their face.
Ms. Burmeister’s family told Sergeant Purcell that she had gone
out that night in her new truck to a fraternity party at her
college.
Mr. Tyrone testified he was with Singer on the night of
August 17, 2001. They were in San Bernardino walking down
the street headed to a liquor store when Dixon and defendant
pulled up alongside them in a sedan. Defendant, who was
driving, called over to them and asked if they wanted to go get
some “cheese,” a slang term for money. Defendant lived in the
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same building as Mr. Tyrone. He had seen Dixon before with
defendant at the building and Mr. Tyrone said “[h]e looked
crazy.” Both Singer and Mr. Tyrone got into the sedan with
defendant and Dixon. They pulled onto the freeway and headed
toward Pomona.
Defendant stopped the car on a residential street where
some sort of party was going on. Mr. Tyrone noticed Dixon had a
handgun in his lap. Defendant and Dixon got out of the car and
walked off. Mr. Tyrone and Singer stayed by the car, talking and
smoking cigarettes.
After a few minutes, Dixon returned walking next to a
white female unknown to Mr. Tyrone (Ms. Burmeister) who was
holding her hands up. Dixon appeared to whisper something in
her ear and she put her hands down. They walked toward a blue
truck, parked a couple of spaces away from the sedan, and both
Dixon and Ms. Burmeister got in the passenger side of the truck.
Defendant said “come on” and then got in the driver’s seat of the
truck and drove off.
Singer and Mr. Tyrone got into the sedan, with Singer
driving, and followed the truck. They eventually arrived at a
Washington Mutual bank in Montclair. Singer parked the sedan
a short distance away from where defendant had parked the
truck. Defendant, who was wearing a black hooded shirt, got out
of the truck and walked toward the ATM machine. She never
said what she was going to do, but it was “pretty easy to figure
out.” When she was walking back from the ATM, she had money
in her hands and was counting it.
Defendant walked over to Singer and Mr. Tyrone and told
them she was having difficulty driving the truck because it was a
manual transmission. Singer, who knew how to drive a manual
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transmission, got into the truck and drove out of the parking lot,
as did defendant and Mr. Tyrone in the sedan.
They drove to “a secluded little dark area” up in the
mountains. Defendant parked the sedan a little bit away from
where Singer parked the truck. Singer got out of the truck,
walked over to the sedan and got in with defendant and
Mr. Tyrone. Mr. Tyrone could see that Dixon was still in the
truck with Ms. Burmeister. After a few moments, he saw
Ms. Burmeister appear to grab at her neck “like she was gasping
for air or something.” Dixon got out of the truck and came back
to the sedan. Mr. Tyrone did not see any weapon in his hands.
Defendant then drove them all back to San Bernardino. She and
Dixon dropped off Singer and Mr. Tyrone at Mr. Tyrone’s
apartment.
In November 2007, defendant pled guilty to first degree
murder. As part of the plea agreement, defendant admitted
certain facts on the record, including that she was present when
Ms. Burmeister was abducted in Pomona; she saw Dixon force
Ms. Burmeister into her truck at gunpoint; she then got into the
truck and drove it to a Washington Mutual bank in Montclair;
Dixon gave her the victim’s ATM card and pin number and she
withdrew money from the account; she followed the truck in
another car up to the mountains to a dark turnout area; she saw
Dixon approach Ms. Burmeister with a knife; she saw Dixon
throw the knife over a fence; Dixon returned to where she and the
two other accomplices were, with Ms. Burmeister’s panties in his
hand; and Dixon told defendant “everything was taken care of.”
The court accepted defendant’s waivers on the record. In
accordance with the terms of the plea agreement, defendant was
sentenced to prison for 25 years to life and the prosecution
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dismissed the special circumstance allegations. Defendant was
awarded 708 days of custody credits.
In January 2019, defendant filed a petition for resentencing
pursuant to Penal Code section 1170.95 which became effective
January 1, 2019. The trial court appointed defendant counsel
and the parties submitted briefs. The court ordered the People to
show cause in accordance with section 1170.95, subdivision (c).
At the evidentiary hearing on May 29, 2019, the court
identified the relevant evidence as the record of conviction,
including the transcript of the preliminary hearing. The parties
agreed and did not offer any additional evidence, nor did any
party raise any objections.
After entertaining argument from the parties, the court
denied defendant’s petition, finding the prosecution met its
burden of proving beyond a reasonable doubt that defendant
acted as an aider and abettor with the intent to kill and also as a
major participant in the underlying felonies who acted with
reckless indifference. The court found that defendant was
therefore ineligible for resentencing.
This appeal followed.
DISCUSSION
Defendant contends the trial court erroneously relied on
the transcript of the preliminary hearing which she contends is
not part of the record of conviction and is insufficient to establish
guilt, and further because the transcript consisted of
uncorroborated accomplice testimony. Defendant also argues her
counsel was ineffective for failing to object to the court’s reliance
on the preliminary hearing transcript.
Defendant concedes she did not object to the court
considering the preliminary hearing transcript as the relevant
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evidence to resolve her petition. Defendant’s appellate
contentions have therefore been forfeited. “ ‘ “An appellate court
will ordinarily not consider procedural defects or erroneous
rulings, in connection with relief sought or defenses asserted,
where an objection could have been, but was not, presented to the
lower court by some appropriate method.” ’ ” (People v. Saunders
(1993) 5 Cal.4th 580, 589-590.) The doctrine of waiver or
forfeiture is intended “ ‘ “to encourage a defendant to bring errors
to the attention of the trial court, so that they may be corrected or
avoided and a fair trial had.” ’ ” (Id. at p. 590.) “ ‘ “No procedural
principle is more familiar . . . than that a constitutional right,” or
a right of any other sort, “may be forfeited in criminal as well as
civil cases by the failure to make timely assertion of the right
before a tribunal having jurisdiction to determine it.”
[Citation.]’ ” (Ibid.)
Defendant nonetheless urges us to resolve her contentions
on the merits because she views them as issues of first
impression that involve important questions of public policy and
affect the validity of her judgment of conviction. Even were we to
consider the substance of defendant’s contentions, we would
reject them.
The preliminary hearing transcript is a part of the record of
conviction. (People v. Reed (1996) 13 Cal.4th 217, 223.) As the
Supreme Court explained, a preliminary hearing transcript is
properly considered a part of the record of conviction because of
“the procedural protections afforded the defendant. . . . Those
protections include the right to confront and cross-examine
witnesses and the requirement those witnesses testify under
oath, coupled with the accuracy afforded by the court reporter’s
verbatim reporting of the proceedings.” (Ibid.) Where, as here,
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the conviction is based on a guilty plea, a preliminary hearing
transcript is a reliable record reflecting the facts of the offense for
which the defendant was convicted.
Defendant asserts a preliminary hearing only establishes
sufficient cause to hold the defendant to answer and does not
establish guilt. The contention lacks merit. A court reviewing a
preliminary hearing transcript in a resentencing proceeding does
not look to the legal conclusion reached by the magistrate at the
hearing, but to the facts established by the testimony, and then
draws its own legal conclusions about those facts to decide if a
defendant is eligible for resentencing.
As for the argument the preliminary hearing consisted only
of uncorroborated accomplice testimony, defendant has not
provided authority or argument to persuade us that Penal Code
section 1111 applies to a postconviction resentencing proceeding
pursuant to section 1170.95. In any event, the testimony of
Mr. Tyrone was not uncorroborated.
The preliminary hearing consisted of the testimony of
Sergeant Purcell as well as Mr. Tyrone. Their testimony was
corroborated by defendant’s numerous factual admissions made
during her plea colloquy. The trial court did not have only
uncorroborated accomplice testimony upon which to base its
conclusion that defendant was a “major participant in the
underlying felony and acted with reckless indifference to human
life.” (Pen. Code, § 189, subd. (e).)
We also reject defendant’s contention her counsel was
ineffective for failing to object to the court’s consideration of the
preliminary hearing transcript at the evidentiary hearing.
Defendant has not shown there was any valid basis for an
objection. Defendant’s argument that counsel purportedly
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admitted the testimony was unreliable because it was “not under
oath” misconstrues counsel’s remarks. The comment by counsel
about statements not being under oath was not directed at the
witness testimony during the preliminary hearing, which plainly
was under oath, but at the additional argument counsel made
regarding his discussions with his client about her reasons for
pleading guilty.
DISPOSITION
The trial court’s order denying Markeisha Nicole Dixon’s
petition for resentencing is affirmed.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.
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