Opinion
F084232
12-27-2022
THE PEOPLE, Plaintiff and Respondent, v. DEMETRIUS DEON DIXON, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Amanda D. Cary, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, No. CF93485197 David C. Kalemkarian, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Amanda D. Cary, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
On October 14, 1993, appellant Demetrius Deon Dixon was convicted by jury of first degree murder (Pen. Code, § 187, subd. (a)) and second degree robbery (§§ 211, 212.5, former subd. (b)). In addition, the jury found true an enhancement allegation for the personal use of a deadly weapon in the commission of both offenses, a knife (§ 12022, subd. (b)), and a special circumstance alleging the murder occurred in the commission of a robbery (§ 190.2, subd. (a)(17)). Dixon was sentenced to state prison for life without the possibility of parole, plus one year.
All further undefined statutory citations are to the Penal Code unless otherwise indicated.
On April 10, 1996, this court affirmed Dixon's conviction on direct appeal. (People v. Mendez et al. (Apr. 10, 1996, F020673) [nonpub. opn.].)
On March 18, 2019, Dixon filed a petition for resentencing under former section 1170.95 now section 1172.6. The trial court denied Dixon's petition without appointing Dixon counsel and allowing the parties to submit briefing.
Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58.) There were no substantive changes to the statute.
On November 15, 2021, this court affirmed the trial court's order denying Dixon's petition. (People v. Dixon (Nov. 15, 2021, F080594) [nonpub. opn.] (Dixon I).)
On January 1, 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill No. 775) went into effect, limiting the use of prior appellate opinions, allowing the trial court to "consider the procedural history of the case recited." (Former § 1170.95, subd. (d)(3), as amended by Stats. 2021, ch. 551.)
On January 3, 2022, and on January 28, 2022, Dixon filed two new petitions for resentencing (§ 1172.6). The trial court denied both petitions without appointing Dixon counsel or accepting supplemental briefing from the parties.
On appeal, Dixon's appellate counsel filed a brief, which summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.)
On September 16, 2022, this court ordered the parties to submit briefing to address whether the record of conviction establishes, with no factfinding, weighing of evidence, or credibility determinations, that Dixon was the actual killer.
Following consideration of the parties' briefs, we conclude the trial court erred in denying Dixon's petitions without appointing counsel or accepting briefing. Accordingly, we reverse the trial court's order denying the petition and remand for further proceedings.
STATEMENT OF FACTS
The following statement of facts are derived, in part, from this court's nonpublished opinion in People v. Mendez et al. (People v. Mendez et al., supra, F020673.) This factual summary is recited for the limited purpose of providing context to Dixon's criminal conviction:
The Attorney General filed an unopposed request for judicial notice of this court's unpublished opinion in case No. F020673. Dixon filed an unopposed request for judicial notice of our prior opinion in Dixon I. Those requests are granted.
On November 15, 1992, Dixon and Scott Mendez robbed Jaime Irizarry of his vehicle. During the commission of the crime, Irizarry's throat was slashed, killing him. He was also stabbed once in the back.
Dixon's friend, Valunt Montgomery, was present during the incident and observed the murder. Montgomery initially identified Mendez as the actual killer before he ultimately identified Dixon as the killer. At trial, he identified Dixon as the actual killer.
The forensic pathologist who had conducted the autopsy of Irizarry testified that based upon the location and direction of the stab wound, the perpetrator held the knife in his left hand. Among Dixon, Mendez, and Montgomery, only Dixon was left-handed.
Mendez and Dixon were convicted of first degree murder and robbery with a special circumstance alleging the murder occurred during the course of the robbery. The jury also found Dixon had personally used a knife in the commission of both the murder and the robbery (§ 12022, subd. (b)), but found not true this enhancement allegation as to Mendez. Montgomery was acquitted of all charges.
The Trial Court's Denial of Dixon's First Petition for Resentencing
On December 16, 2019, the trial court denied Dixon's petition for resentencing, stating, "[t]he petitioner was convicted by jury trial of 1st degree murder and that during the commission of the offense he did personally use a deadly and dangerous weapon, to wit: a knife. Petitioner was the actual killer. Petitioner was a principal in the crime and the killing resulted from an intentional act with express or implied malice. Petitioner is not eligible for resentencing."
The record on appeal included the criminal complaint, minute orders with the jury's verdicts, and the abstract of judgment.
This Court's Affirmance of the Trial Court's Ruling
On November 15, 2021, on appeal from the trial court's denial of his petition for resentencing, this court held that Dixon failed to show prejudice from the trial court's summary denial of his petition for resentencing. (Dixon I, supra, F080594.) In addition to the fact that Dixon had been convicted of a special circumstance, which rendered him ineligible for resentencing relief as a matter of law, we held that the record of conviction showed Dixon was the actual killer.
Our conclusion was based upon the jury's findings on the arming enhancement (§ 12022, subd. (b)), Dixon's acknowledgment that there was evidence supporting the conclusion that he was the actual killer, and Montgomery's testimony at trial, the substance of which was detailed in our prior opinion in Mendez et al., supra, F020673.
The Trial Court's Denial of Dixon's Second and Third Petitions for Resentencing
On April 7, 2022, the trial court filed a written order summarily denying two new petitions for resentencing filed by Dixon. The trial court's order stated: "The petitions do not contain any new information that would allow for further consideration. [¶] The petition is denied, without prejudice."
DISCUSSION
I. Applicable Law
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.) "to amend the felony murder rule and the natural and probable consequences doctrine ... to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill No. 1437 accomplished this task by adding three separate provisions to the Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).)
First, to amend the natural and probable consequences doctrine, the bill added section 188, subdivision (a)(3), which requires a principal to act with malice aforethought before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at pp. 842-843.) Second, to amend the felony-murder rule, the bill added section 189, subdivision (e):
"A participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." (§ 189, subd. (e); accord, Gentile, supra, 10 Cal.5th at p. 842.)
Finally, the bill added former section 1170.95 to provide a procedure for those convicted of a qualifying offense "to seek relief under the two ameliorative provisions above." (Gentile, supra, 10 Cal.5th at p. 843.) This procedure is available to persons convicted of "felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter." (Former § 1170.95, subd. (a).)
"Section 1170.95 lays out a process" for a person convicted of one of the aforementioned offenses "to seek vacatur of his or her conviction and resentencing." (Gentile, supra, 10 Cal.5th at p. 853.) First, an offender must file a petition in the sentencing court averring that:
"(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine[;]
"(2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder[; and]
"(3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (Former § 1170.95, subd. (a)(1)-(3); see § 1170.95, subd. (b)(1)(A); accord, People v. Lewis (2021) 11 Cal.5th 952, 959-960 (Lewis).)
Additionally, the petition shall state "[w]hether the petitioner requests the appointment of counsel." (§ 1170.95, subd. (b)(1)(C).)
If a petition fails to contain the required information and the information cannot be "readily ascertained" by the court, the petition may be denied without prejudice to the filing of another petition. (Former § 1170.95, subd. (b)(2).) Otherwise, counsel must be appointed, if requested. (Former § 1170.95, subd. (b)(3).) The prosecutor must file a response and the petitioner may file a reply. The trial court must then hold a hearing to determine if the petitioner has made a prima facie showing that he or she is entitled to relief. (Former § 1170.95, subd. (c); accord, Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making this determination, the trial court may rely on the record of conviction. (Lewis, at pp. 970-971 ["The record of conviction will necessarily inform the trial court's prima facie inquiry under [former] section 1170.95, allowing the court to distinguish petitions with potential merit from those that are clearly meritless."])
"[T]he 'prima facie bar was intentionally and correctly set very low.'" (Lewis, supra, 11 Cal.5th at p. 972.) The trial court must accept the petitioner's allegations as true and "should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Id. at p. 972.)
If the court determines the petitioner has met his or her prima facie burden, "the trial court must issue an order to show cause and hold a hearing to determine whether to vacate the murder[, attempted murder, or manslaughter] conviction and to resentence the petitioner on any remaining counts." (Gentile, supra, 10 Cal.5th at p. 853; accord, former § 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must "prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (Former § 1170.95, subd. (d)(3).) The prosecutor and the petitioner may offer new or additional evidence to meet their respective burdens.
The admission of evidence at the hearing is governed by the Evidence Code. However, the court also "may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed," as well as the "procedural history of the case recited in any prior appellate opinion." (Former § 1170.95, subd. (d)(3).)
To demonstrate prejudice from the denial of a section 1170.95 petition before the issuance of an order to show cause, the petitioner must show it is reasonably probable that, absent error, his or her petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson (1956) 46 Cal.2d 818, 836.)
II. Senate Bill No. 775
On October 5, 2021, the Governor signed Senate Bill No. 775 into law, and its amendments to section 1170.95 became effective on January 1, 2022. Senate Bill No. 775 amended section 1170.95, subdivision (d)(3) to provide the following, in relevant part: The court may also consider the procedural history of the case recited in any prior appellate opinion. (§ 1170.95, subd. (d)(3).)
Prior to the enactment of Senate Bill No. 775, the trial court could consider the factual summary in an appellate opinion at a hearing under section 1170.95, subdivision (d)(3), because the factual summary was admissible as reliable hearsay. (See, e.g., People v. Williams (2020) 57 Cal.App.5th 652, 660-663; People v. Brimmer (2014) 230 Cal.App.4th 782, 800 [the record of conviction may include the underlying facts as summarized in an appellate opinion].)
Following the enactment of Senate Bill No. 775, however, the "Legislature limited use of prior appellate opinions [in hearings under section 1170.95, subdivision (d)], allowing trial judges to 'consider the procedural history of the case recited.'" (People v. Clements (2022) 75 Cal.App.5th 276, 292.) Through the passage of Senate Bill No. 775, "the Legislature has decided trial judges should not rely on the factual summaries contained in prior appellate decisions when a section 1170.95 petition reaches the stage of a full-fledged evidentiary hearing." (Ibid.; accord, People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9 ["Senate Bill 775 prevents a trial court from relying on facts recited in an appellate opinion to rule on a petition under section 1170.95"].) "If such evidence may not be considered at an evidentiary hearing to determine a petitioner's ultimate eligibility for resentencing, we fail to see how such evidence could establish, as a matter of law, a petitioner's ineligibility for resentencing at the prima facie stage." (People v. Flores (2022) 76 Cal.App.5th 974, 988.)
In Dixon I, appellate counsel for Dixon did not seek to file additional briefing concerning whether Senate Bill No. 775's addition of subdivision (d)(3) to section 1170.95 applied retroactively, precluding the consideration of facts recited within an appellate court opinion. Because the instant appeal follows two new petitions for resentencing occurring after Senate Bill No. 775 became effect, that issue is not relevant to this appeal.
III. The Trial Court Erred in Summarily Denying Dixon's Petitions for Resentencing
Following the passage of Senate Bill No. 775, Dixon filed two petitions alleging all requisite facts under former section 1170.95, subdivision (a)(1) through (3). In both petitions, he averred that he was convicted of first degree murder and that the People filed an information against him that allowed the prosecution to proceed under a theory of felony murder. (See, former § 1170.95, subd. (a)(1)-(2).) The record supports both assertions.
Dixon further averred that pursuant to former section 1170.95, subdivision (a)(3), he "could not presently be convicted of murder ... because of changes made to Penal Code §§ 188 and 189." In his petition, Dixon also requested the appointment of counsel to represent him. Because Dixon filed a facially sufficient petition for resentencing, the trial court should have appointed counsel and given the opportunity to submit briefing. (Lewis, supra, 11 Cal.5th at p. 957 ["petitioners are entitled to the appointment of counsel upon the filing of a facially sufficient petition"].)
However, the trial court denied Dixon's petitions without appointing counsel or accepting further briefing, stating, "[t]he current petitions do not contain any new information that would allow for further consideration." As discussed further below, the trial court erred in denying Dixon's petitions on this basis, and the error requires remand for further proceedings.
A. The Record of Conviction
In determining whether a prima facie showing has been made, the trial court may rely upon the record of conviction. (Lewis, supra, 11 Cal.5th at p. 971.) However, "[w]hile the trial court may look at the record of conviction ... to determine whether a petitioner has made a prima facie case for section [1172.6] relief, the prima facie inquiry under subdivision (c) is limited." (Ibid.) "In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion,'" (Id. at p. 972; People v. Drayton (2020) 47 Cal.App.5th 965, 980.) "Like the analogous prima facie inquiry in habeas corpus proceedings,' "the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause." '" (Lewis, supra, at p. 971; People v. Drayton, supra, at p. 978.)
Although a court should not reject a petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing (Lewis, supra, 11 Cal.5th at p. 971), the court need not credit factual assertions that are untrue as a matter of law (People v. Drayton, supra, 47 Cal.App.5th at p. 980). Thus," 'if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner." '" (Lewis, supra, at p. 971.)
"[T]his authority to make determinations without conducting an evidentiary hearing pursuant to section 1170.95, subd. (d) is limited to readily ascertainable facts from the record (such as the crime of conviction), rather than factfinding involving the weighing of evidence or the exercise of discretion (such as determining whether the petitioner showed reckless indifference to human life in the commission of the crime)." (People v. Drayton, supra, 47 Cal.App.5th at p. 980.) Facts preclusive of relief at the prima facie stage may include, for example, the absence of jury instructions on the felony murder theory or natural and probable consequences doctrine (Rivera, supra, 62 Cal.App.5th at p. 236; see, e.g., People v. Daniel (2020) 57 Cal.App.5th 666, 670-671 [jury was not instructed on either felony murder or murder under the natural and probable consequences doctrine].)
Conversely, the presence of certain jury instructions, in addition to the jury's verdict and findings upon specific enhancements may also conclusively establish the petitioner was convicted as the actual killer, without factfinding or weighing evidence. In People v. Harden (2022) 81 Cal.App.5th 45 (Harden), for example, our colleagues in the Fourth District, Division 1 Court of Appeal held that the jury instructions and verdicts conclusively established the jury found that Harden was the actual killer. (Id. at p. 56.) There, the prosecutor theorized Harden had acted alone in committing a murder during the course of a robbery and therefore declined to instruct the jury on aiding and abetting, accomplice liability, or liability based upon Harden's participation in the underlying felony as a major participant that acted with reckless indifference to human life. (Id. at p. 53.)
The jury was instructed on deliberate and premediated murder (CALJIC No. 8.20) and felony murder (CALJIC No. 8.21). The court also instructed the jury on first degree murder with special circumstances under a modified version of CALJIC No. 8.80.1, which permitted a true finding on the special circumstance only if the defendant was the actual killer. (People v. Harden, supra, 81 Cal.App.5th at p. 56.) The jury was also asked to find whether Harden had "personally inflicted great bodily injury" upon the victim in committing the offenses (CALJIC No. 17.20).
The jury found Harden guilty of murder and robbery. It also found true the special circumstance allegation and the enhancement for the personal infliction of great bodily injury. On appeal, the court held that the instructions, jury's verdict, and true finding on the special circumstance and great bodily injury enhancement showed “the jury necessarily found [Harden] actually killed [the victim].” (People v. Harden, supra, 81 Cal.App.5th at p. 60.) Thus, the trial court had correctly denied Harden's petition for resentencing at the prima facie stage. (Ibid.)
Guided by these examples of "readily ascertainable facts," we turn to the record of conviction here to determine whether it contains facts that conclusively refute Dixon's sworn assertion that he "could not be convicted of murder ... because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019."
1. The Jury Instructions, Closing Argument, & Verdicts
i. Background
Dixon, Mendez, and Montgomery were tried jointly. The prosecutor theorized that Dixon was the actual killer, but told the jury during his closing argument that "[e]ven if you weren't to find Demetrius Dixon to be the actual killer he's still a major participant and he's using a gun, and that's reckless indifference to human life." The prosecutor did not discuss the arming enhancement in closing argument.
On our own motion, we take judicial notice the reporter's transcript from Dixon's appeal from the judgment of conviction in Mendez et al. (Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule 8.1115(b)(2).)
The court instructed the jury on murder (CALJIC No. 8.10) as well as felony murder (CALJIC Nos. 8.21 [First Degree Felony-Murder] &8.27 [First Degree Felony-Murder-Aider and Abettor). With respect to the special circumstance allegation and the arming enhancement, the court instructed the jury pursuant to CALJIC No. 8.80.1 [Special Circumstances] and CALJIC No. 17.16 [Personal Use of Dangerous/Deadly Weapon], respectively.
The special circumstance instruction in CALJIC No. 8.80 states the following, in relevant part:
"If you are satisfied beyond a reasonable doubt that the defendant actually killed a human being, you need not find that the defendant intended to kill in order to find the special circumstance to be true.
"If you find that a defendant was not the actual killer of a human being, or if you are unable to decide whether the defendant was the actual killer or an aider and abettor, you cannot find the special circumstance to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of the murder in the first degree, or with reckless indifference to human life and as a major participant, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted in the commission of the crime of robbery which resulted in the death of a human being, namely Jaime Irazarry."
The jury found Dixon guilty of first degree murder and robbery. In addition, the jury found true the special circumstance allegation and the arming enhancement.Mendez was convicted as charged but the jury found not true the arming enhancement. Montgomery was acquitted.
The jury's true finding on the special circumstance does not render Dixon ineligible for relief as a matter of law. In People v. Strong (2022) 13 Cal.5th 698 (Strong), our Supreme Court held that a jury's special circumstance finding made prior to People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) do not preclude a petitioner from seeking section 1172.6 relief as a matter of law. Here, the jury's special circumstance finding occurred in 1993, 30 years prior to Banks and Clark, and thus cannot provide the basis for the summary denial of his petition.
ii. Analysis
While the jury found true a special circumstance allegation, the instruction and the prosecutor's comments in closing argument permitted a true finding on the special circumstance under three factual scenarios: (1) Dixon was the actual killer; (2) he aided and abetted the actual killer with the intent to kill, or (3) he acted as a major participant with reckless indifference to human life in the commission of the underlying felony. Thus, it was possible for the jury to find Dixon guilty of murder without finding that he was the actual killer.
The Attorney General maintains that the jury's true finding on the arming enhancement (§ 12022, subd. (b)) shows, without factfinding involving the weighing of conflicting evidence or exercise of discretion, that the jury found Dixon to be the actual killer. The problem with the Attorney General's assertion is that the jury's findings, alone, fail to conclusively establish that Dixon personally killed the victim with malice aforethought.
The arming enhancement defines the "personal use" of a deadly weapon as "to display such a weapon in a[n intentionally] menacing manner or intentionally to strike or hit a human being with it." (CALJIC 17.16.) By its express terms, the arming enhancement does not require the perpetrator to personally inflict death or even injury in the commission of the underlying felony. (Compare §§ 12022 to 12022.55 [firearm use enhancement applies where the defendant has the specific intent to inflict injury or death and personally inflicts injury or death as a result of discharging a firearm from a motor vehicle]; and 190.2, subd. (a)(21) [special circumstance allegation applies where a murder was committed "by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death"]; People v. Harden, supra, 81 Cal.App.5th at p. 55 [the jury's true finding on an enhancement for personal infliction of great bodily injury (§ 12022.7), in addition to other instructions which permitted the petitioner to be convicted only as the actual killer, necessarily meant the jury concluded the petitioner had killed the victim].)
For purposes of section 1172.6, the "actual killer" is the perpetrator who personally killed the victim. (People v. Garcia (2020) 46 Cal.App.5th 123, 152 ["[t]he actual killer is the person who personally kills the victim, whether by shooting, stabbing, or ... [by other means]"]; People v. Vang (2022) 82 Cal.App.5th 64, 91 ["[t]o personally kill the victim is to directly cause the victim's death"].) Because the arming enhancement does not require the jury to find that the defendant personally killed or even injured the victim, a true finding on the enhancement is, in itself, not a conclusive determination that a defendant is the actual killer. Thus, it is necessary to go beyond the fact of the jury's finding on the arming enhancement to examine the underlying conduct supporting the enhancement.
For example, in People v. Jones (2003) 30 Cal.4th 1084 (Jones), our Supreme Court held that a finding that a defendant personally used a firearm (§ 12022.5), in and of itself, prove a defendant is the actual killer. This is because a gun could be used for purposes of section 12022.5, even if the gun is never fired. (Jones, supra, at p. 1120.)
The Jones court provided the following example: "If two robbers display guns to intimidate robbery victims and one shoots and kills a victim, both robbers could be found to have personally used a gun in the robbery and the felony murder, even though only one is the actual killer." (Jones, supra, 30 Cal.4th at p. 1120.) However, when the record shows only one person displayed and used a gun and "[a]ll evidence points to defendant, not the second robber, as the one with the gun," the true finding on a personal use enhancement demonstrates that the defendant was the actual killer. (Ibid.)
In People v. Young (2005) 34 Cal.4th 1149, our Supreme Court reaffirmed that a finding of personal use of a firearm (§ 12022.5), standing alone does not demonstrate that a defendant is the actual killer. (People v. Young, at p. 1205.) Where, however, there was "no evidence that anyone else who may have been present at the ... residence displayed in a menacing manner, or otherwise used, a gun," "all evidence points to defendant as the one who actually shot and killed [the victim]." (Ibid.)
In the instant case, the trial court is prohibited from factfinding at the prima facie stage. However, the uncontroverted evidence adduced at trial may show that only one knife was furnished during the course of the robbery, and the only use of that knife was to kill Irizarry. These facts would provide essential context that would support the conclusion that Dixon was convicted as the actual killer, rendering him ineligible for resentencing relief as a matter of law.
However, notwithstanding this court's prior opinion in Mendez et al., the Attorney General does not direct us to evidence in the record which would permit us to make such a determination. For the reasons discussed below, we decline to rely upon our prior opinion to conclude that Dixon is ineligible for resentencing relief as a matter of law. Further, although Dixon has conceded there is evidence showing he was the actual killer, this admission is not tantamount to a concession.
B. The Opinion in Dixon's Direct Appeal
The statement of facts in Dixon's direct appeal identifies him as the perpetrator of the murder. Several times throughout the opinion, this court held that the jury determined Dixon was the actual killer based upon the jury's findings on the arming enhancement. Specifically, that the enhancement was found true as to Dixon and not true as to Mendez.
Even if we were not constrained to consideration of the procedural history of our prior opinion in determining whether Dixon has made a prima facie case for relief (see People v. Flores, supra, 76 Cal.App.5th at p. 988), we hesitate to rely upon statements made in our prior opinion to find that Dixon is ineligible for resentencing relief as a matter of law.
In People v. Harden, on appeal from the judgment of conviction, the appellate court initially determined there was insufficient evidence to conclude that Harden was anything other then the actual killer. Harden subsequently sought resentencing relief under former section 1170.95, but her petition was denied at the prima facie stage. On appeal, the appellate court had initially concluded that its original conclusion that Harden was the actual killer was "law of the case," and as such, Harden could not assert that she was not the actual killer at any subsequent hearing on her petition for resentencing. (People v. Harden, supra, 81 Cal.App.5th at p. 50; People v. Boyer (2006) 38 Cal.4th 412, 44 [law of the case doctrine "controls the outcome on retrial only to the extent the evidence is substantially the same"].) Following reconsideration of the issue, the appellate court concluded that because it was impossible to know what new or additional evidence could be introduced at a hearing under former section 1170.95, subdivision (d) while at the prima facie stage, the law of the case doctrine cannot conclusively establish the petitioner's disentitlement to relief. (People v. Harden, supra, 81 Cal.App.5th at p. 50.) Because we decline to rely on our prior appellate opinion for other reasons, we do not address People v. Harden's conclusion.
On appeal, Dixon's claims pertained to whether statements made by him and Montgomery during police interrogation should have been suppressed. This court concluded there was no error in the admission of the challenged statements, and no prejudice assuming error. In reaching the latter conclusion, we held that assuming the extrajudicial statements should have been suppressed, there was no reasonable probability the statements might have contributed to Dixon's and Mendez's convictions. According to this court, the jury's verdicts showed that it had credited Montgomery's testimony at trial, stating, "[t]hese results clearly show the jury believed Montgomery's version of events and found Dixon to have been the actual killer."
Thereafter, this court declined to address Dixon's attack on the jury's special circumstance finding, reiterating that the jury's findings on the arming enhancements "conclusively establish they found Dixon to have been the actual killer." Thus, our conclusions were based upon the same premise: that the arming enhancements definitively showed that Dixon was convicted of murder as the actual killer. The recitation of facts in our prior opinion provided necessary context to the jury's findings, and as those facts are set forth, they support only one conclusion: that Dixon was the actual killer.
In the context of section 1172.6 proceedings, however, we cannot rely upon facts recited in our prior opinion (People v. Flores, supra, 76 Cal.App.5th at p. 988). And, for the reasons stated herein, we are unable to conclude that the jury's findings on the arming enhancement, without context, are alone sufficient to conclude Dixon is the actual killer.
C. Remand is Necessary
The jury instructions, verdicts, and closing arguments do not show that petitioner is ineligible for resentencing relief as a matter of law. Insofar as the reporter's transcripts from Dixon's criminal trial may show, without factfinding, that he was convicted as the actual killer, the Attorney General does not direct us to portions of the record which would permit us to draw such an inference.
We will therefore remand this matter back to the superior court for further proceedings. If, following the appointment of counsel and submission of briefs, the record of conviction shows, without "factfinding involving the weighing of evidence of the exercise of discretion" (Drayton, supra, 47 Cal.App.5th at p. 980), that Dixon was convicted as the actual killer, the trial court may deny Dixon's petition for resentencing without issuing an order to show cause. (See, e.g., People v. Garrison (2021) 73 Cal.App.5th 735, 747 [concluding the petitioner was the actual killer where a firearm use enhancement was found true (§§ 12022.5, 1203.06, subd. (a)(1)) and the uncontroverted evidence showed the only use of the firearm was to shoot the victim].) However, barring such a finding, the trial court must issue an order to show cause and hold an evidentiary hearing.
DISPOSITION
The superior court's order denying the petition for resentencing is reversed. The matter is remanded for further proceedings consistent with section 1172.6, subdivision (c).
[*] Before Detjen, Acting P. J., Smith, J. and Snauffer, J.