People v. Dixon CA2/4

Filed 10/19/20 P. v. Dixon CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This

opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B299436

Plaintiff and Respondent, Los Angeles County

Super. Ct. No. VA146759

v.

FRANK DIXON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los

Angeles County, Roger T. Ito, Judge. Conditionally reversed and

remanded with directions.

Aaron J. Schechter, 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

Attorney General, Idan Ivri and Stephanie C. Santoro, Deputy

Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendant and appellant Frank Dixon of

assault by means likely to produce great bodily injury and two

counts of resisting an executive officer. The jury and trial court

found true various additional allegations. The court sentenced

Dixon to 17 years and four months in state prison. On appeal,

Dixon raises three arguments: (1) his case should be remanded

for a mental health diversion eligibility hearing; (2) the trial

court abused its discretion by refusing to consider his mental

illness as a mitigating factor at sentencing; and (3) the court

erred under People v. Dueñas (2019) 30 Cal.App.5th 1157 by

imposing assessments and a restitution fine without determining

his ability to pay. We agree with Dixon’s first argument. We

therefore conditionally reverse the judgment and remand the

case to the trial court with instructions to determine whether

Dixon is eligible for mental health diversion. With respect to

Dixon’s second argument, although we decline to decide whether

the court abused its discretion, we vacate the sentence so that if,

on remand, the trial court finds Dixon ineligible for diversion, it

may consider the mental health evidence adduced at the

diversion hearing as a possible mitigating sentencing factor. We

reject Dixon’s Dueñas argument.

PROCEDURAL BACKGROUND

The Los Angeles County District Attorney filed an

information charging Dixon with attempted second degree

robbery (Pen. Code, §§ 664, 2111; count one), assault by means of

force likely to produce great bodily injury (§ 245, subd. (a)(4);

1 All undesignated statutory references are to the Penal

Code.

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count three),2 misdemeanor battery (§ 242; count four), and two

counts of resisting an executive officer (§ 69; counts five and six).

The information further alleged Dixon personally inflicted great

bodily injury during the commission of count three (§ 12022.7,

subd. (a)), sustained one prior strike conviction (§§ 667, subds.

(b)-(i), 1170.12, subds. (a)-(d)), and sustained one prior serious

felony conviction (§ 667, subd. (a)(1)).3 At the People’s request,

the trial court later dismissed counts one and four. The jury

found Dixon guilty on the remaining counts (counts three, five,

and six). The jury also found true the great bodily injury

enhancement on count three. In a bifurcated proceeding, the trial

court found true the strike prior and the serious felony prior. The

court sentenced Dixon to 17 years and four months in state

prison, comprised of an eight-year term for count three (a four-

year upper term, doubled for the strike prior), plus three years

for the great bodily injury enhancement, a consecutive term of

sixteen months on count five (one third of the middle term of two

years, doubled for the strike prior), and five years for the serious

felony prior. The court imposed a concurrent low term of sixteen

months on count six.

Dixon timely appealed.

2 The information skipped from count one to count three

without enumerating a second count.

3 Before trial, the trial court declared a doubt as to Dixon’s

competency. The court later found him competent to stand trial.

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FACTUAL BACKGROUND

I. Prosecution case

On January 15, 2018, at around 7:45 p.m., Dixon was at the

Norwalk train station, near a snack stand owned and operated by

a 67-year-old. Dixon began acting aggressively and yelling

profanity at Keith Russell, a regular customer of the snack stand.

Russell asked Dixon to leave Dixon and Russell walked away

from the snack stand, and Dixon initiated a physical altercation

with Russell. The two men ended up wrestling on the floor with

Dixon trying to punch Russell and Russell trying to defend

himself. The stand owner ran over and yelled at Dixon to stop

fighting. Dixon punched the stand owner in the head, and she fell

to the ground. While the stand owner was on the ground, Dixon

raised his foot chest-high and stomped on her head. The stand

owner lost consciousness, and she did not wake up until she was

at the hospital.

Security officers rushed over and tackled Dixon. Dixon

struggled with the security officers, and they handcuffed him. Los

Angeles Deputy Sheriff Thibodeaux and his partner arrived and

took Dixon into custody. Dixon threatened the officers and did

not cooperate with them. When Thibodeaux directed Dixon to

stand up off the ground, Dixon became enraged and kicked one of

the security officers hard in the knee. Dixon also forcefully

attempted to head-butt one of the arresting deputies.

As a result of the incident, the stand owner had brain

surgery and is partially paralyzed. She is no longer able to walk.

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II. Defense case

Dixon testified in his own defense. He was at the Norwalk

station waiting to drop off groceries for his girlfriend. Russell

started a verbal altercation with him. Dixon walked away, and

Russell followed him. Russell told Dixon he wanted to fight, and

punched Dixon in the face. Dixon grabbed Russell, and they both

fell to the ground. The stand owner approached the fight, threw

three punches at Dixon, and slipped and fell to the concrete.

Dixon denied punching the stand owner or stomping on her head.

DISCUSSION

I. Mental health diversion

Dixon first contends his convictions must be conditionally

reversed, and the case must be remanded for a mental health

diversion hearing. He argues the trial court declined to consider

his eligibility for pretrial diversion based on an erroneous belief

that it could not do so under section 1001.36 until Dixon had been

found guilty and was awaiting sentencing. The Attorney General

agrees the trial court erred, but contends the error was harmless

and remand would be futile because Dixon cannot show he does

not pose an unreasonable risk of danger to public safety. We

reject the Attorney General’s argument and remand the matter

for a mental health diversion hearing.

Before trial, Dixon, who was pro se at the time, asked the

court to consider his eligibility for mental health diversion. The

court denied the request, stating it could only consider Dixon’s

eligibility for diversion at sentencing assuming the jury found

him guilty. We agree with the parties that the trial court erred in

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this regard. Section 1001.36 specifies that pretrial mental health

diversion is available “at any point in the judicial process from

the point at which the accused is charged until adjudication[.]”

(§ 1001.36, subd. (c).)

We now turn to the Attorney General’s argument that

remand would be futile. Applying the principles recently set forth

by our Supreme Court in People v. Frahs (2020) 9 Cal.5th 618

(Frahs), we reject this contention. “[A] conditional limited remand

for the trial court to conduct a mental health diversion eligibility

hearing is warranted when, as here, the record affirmatively

discloses that the defendant appears to meet at least the first

threshold eligibility requirement for mental health diversion—

the defendant suffers from a qualifying mental disorder

(§ 1001.36, subd. (b)(1)(A)).” (Frahs, supra, 9 Cal.5th at p. 640.)

The record contains some evidence that Dixon has been

diagnosed with schizophrenia and possibly post-traumatic stress

disorder.4 Dr. Haig J. Kojian, a psychologist, states in a

competency report that Dixon told him he suffers from

schizophrenia and takes medication to treat the disorder. In

addition, Dixon’s probation report indicates he suffers from

schizophrenia and post-traumatic stress disorder.

We reject the Attorney General’s argument that the

harmless error standard articulated in People v. Watson (1956) 46

4 Section 1001.36, subdivision (b)(1)(A) defines the qualifying

mental disorders as any “mental disorder as identified in the

most recent edition of the Diagnostic and Statistical Manual of

Mental Disorders, including, but not limited to, bipolar disorder,

schizophrenia, schizoaffective disorder, or post-traumatic stress

disorder, but excluding antisocial personality disorder, borderline

personality disorder, and pedophilia . . . .”

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Cal.2d 818 (Watson) applies here. As noted above, our Supreme

Court in Frahs did not apply the Watson harmless error

standard, but rather concluded a conditional limited remand is

warranted where the record affirmatively discloses that the

defendant appears to suffer from a qualifying mental disorder.

(Frahs, supra, 9 Cal.5th at p. 640.) We also reject the Attorney

General’s contention that remand would be futile because the

court, in imposing the upper term, noted the vulnerability of the

victim and Dixon’s “increasing and longstanding criminal

history.” (See Frahs, supra, 9 Cal.5th at p. 639 [rejecting

Attorney General’s argument that remand would be futile

because the court found no significant mitigating factors that

weighed in favor of striking defendant’s prior enhancement,

explaining “the trial court could find that the[] criteria for

diversion are satisfied even if that court believed defendant’s

mental disorder did not significantly reduce his culpability for the

crimes.” Italics in original.].) It is possible the trial court may

determine Dixon is eligible for mental health diversion despite its

comments at sentencing.

In arguing remand would be futile, the Attorney General,

also relies on People v. Jefferson (2019) 38 Cal.App.5th 399

(Jefferson). Jefferson concluded remand was futile because “the

trial court clearly indicated defendant’s alleged mental health

disorder was not a significant factor in his commission of the

charged offenses, making him ineligible for diversion.” (Id. at p.

408.) The record in Dixon’s case contains no such indication.

We remand to allow the trial court to determine whether

Dixon suffers from a mental disorder that qualifies him for

diversion. If the court determines Dixon suffers from a qualifying

mental disorder, it must then decide whether to grant him

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pretrial mental health diversion. Like the Supreme Court in

Frahs, “[w]e express no view concerning whether [Dixon] will be

able to show eligibility on remand or whether the trial court

should exercise its discretion to grant diversion if it finds him

eligible.” (Frahs, supra, 9 Cal.5th at p. 641.)

II. The trial court may consider Dixon’s mental

health as a possible mitigating sentencing factor

Dixon next argues the trial court abused its discretion in

violation of due process by not considering his mental illness as a

mitigating factor during sentencing. The Attorney General

disagrees, noting the trial court afforded Dixon the opportunity to

undergo psychiatric evaluation so the defense could submit a

written report for the court’s consideration before sentencing.

Dixon declined the court’s offer, instead insisting on being

sentenced immediately. We decline to decide whether the trial

court abused its discretion. For the reasons discussed below, we

vacate Dixon’s sentence. If the trial court finds Dixon ineligible

for mental health diversion, it may use the mental health

information adduced at the diversion hearing to re-sentence him.

A. Relevant proceedings

After the jury rendered its verdict, defense counsel

requested a continuance to allow a psychiatrist to evaluate

Dixon’s mental health for purposes of sentencing. The trial court

agreed to a continuance. After speaking with Dixon, however,

defense counsel stated Dixon wished to proceed that afternoon

with a bench trial on his prior convictions and sentencing.

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That afternoon, the trial court held a hearing on the prior

conviction allegations and found them true. Dixon stated he

wanted to proceed directly to sentencing despite defense counsel’s

indication that he needed a continuance to file a Romero motion.

(People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) Trial

counsel asked the court to consider Dixon’s mental illness as a

factor in mitigation to strike the prior conviction enhancements

and not impose the upper term.

The trial court ruled it did not have enough information

concerning Dixon’s mental health to consider it as a mitigating

factor.5 Defense counsel pointed out the probation report stated

Dixon had schizophrenia, and the court stated it was not going to

rely on the report because it did not know if the schizophrenia

determination was based on medical documentation or Dixon’s

own statements. The prosecution noted Dr. Kojian had submitted

a psychological assessment, but the court observed the report was

prepared to assess competence to stand trial. The court noted

competence to stand trial is not the same as whether Dixon’s

mental illness should be considered as a mitigating factor. The

court offered to refer Dixon for a psychological evaluation and

hold over sentencing. Dixon declined the offer and insisted on

being sentenced immediately.

5 The court stated: “[A]t this juncture I don’t have any

documentary evidence, any medical evidence that Mr. Dixon is in

fact mentally ill and therefore that would be a basis for any kind

of mitigation or a basis for a Romero motion [¶]. . . .[¶] I can’t

mitigate it and I can’t grant a Romero motion based on his

mental illness when I have nothing before me that suggests --

besides his behavior, which is truly obnoxious, obstreperous and

aberrant, it is not per se indicative of either an N.G.I., a 1385,

anything along those lines.”

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Dixon was removed from the court following an outburst.

Defense counsel again argued Dixon was mentally unwell and

asked the court to “extend mercy” to him. The trial court

proceeded to sentencing, declined to strike the strike, imposed

the high term, and imposed the strike prior and serious felony

prior enhancements. In selecting the upper term, the court noted

the vulnerability of the victim and Dixon’s “increasing and

longstanding criminal history” as aggravating factors.

B. Analysis

Ordinarily, we would review Dixon’s challenge to his

sentence for abuse of discretion. (People v. Avales (1996) 47

Cal.App.4th 1569, 1582.) In this instance, however, we decline to

consider whether the trial court abused its discretion. At

sentencing, the trial court expressed a willingness to consider

Dixon’s mental health as a possible mitigating factor, but stated

it needed Dixon to undergo further psychological evaluation.

Dixon declined the court’s offer and insisted on being sentenced

immediately, effectively depriving the court of the opportunity to

factor mental health into its sentencing decision. As discussed

above, on remand the court is to hold a mental health diversion

eligibility hearing. If the trial court finds Dixon ineligible for

diversion, the information concerning Dixon’s mental health

adduced at the hearing will nonetheless allow the court to decide

whether it warrants mitigating Dixon’s sentence. We therefore

vacate Dixon’s sentence and allow the trial court the opportunity

to utilize the information adduced at the diversion hearing to re-

sentence Dixon.

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III. Dixon’s Dueñas argument

The trial court imposed three $40 court security

assessments (§ 1465.8, subd. (a)(1)), three $30 criminal conviction

assessments (Gov. Code, § 70373), and a $300 restitution fine

(§ 1202.4, subd. (b)(1)). Relying on Dueñas, supra, 30 Cal.App.5th

1157, Dixon now challenges the assessments and fine on due

process grounds.6 Dixon concedes he did not object to the

imposition of the assessments or fine. Dixon was sentenced over

six months after Dueñas was decided. Dixon forfeited his Dueñas

argument by failing to object or request an ability to pay hearing.

(See People v. Bipialaka (2019) 34 Cal.App.5th 455, 464; People v.

Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155.)

We also reject Dixon’s contention, raised in the alternative,

that his counsel’s failure to object constituted ineffective

assistance of counsel. To establish ineffective assistance of

counsel, an appellant bears the burden of showing prejudice,

meaning a reasonable probability that but for the challenged act

or omission of counsel, the appellant would have obtained a more

favorable result. (People v. Centeno (2014) 60 Cal.4th 659, 674-

676; see also In re Crew (2011) 52 Cal.4th 126, 150 [“If a claim of

ineffective assistance of counsel can be determined on the ground

of lack of prejudice, a court need not decide whether counsel’s

performance was deficient. [Citations.]”].) Dixon asserts there is a

6 Our Supreme Court has granted review in People v. Kopp

(2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844,

on the issue of whether a trial court must “consider a defendant’s

ability to pay before imposing or executing fines, fees, and

assessments,” and if so, “which party bears the burden of proof

regarding defendant’s inability to pay.”

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reasonable probability the trial court would have found he lacked

the ability to pay the fine and assessments. Dixon, however,

identifies no support for his assertion other than a statement in

the probation officer’s report that he was unemployed prior to his

incarceration, the fact that the probation report states it is

unknown whether he has any assets, and his use of appointed

counsel. (Cf. People v. Aviles (2019) 39 Cal.App.5th 1055, 1075-

1076 [inability to pay costs of appointed counsel does not

establish inability to pay restitution fine or other court-imposed

fees].) Further, the court might have found him able to pay the

fine and assessments from prison wages. (See id. at pp. 1075-

1077 [any Dueñas error was harmless due to defendant’s ability

to earn prison wages equaling amount of fine and assessments];

People v. Jones (2019) 36 Cal.App.5th 1028, 1035 [same]; People

v. Johnson (2019) 35 Cal.App.5th 134, 139-140 [same].) He

therefore fails to satisfy his burden to show prejudice.

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DISPOSITION

The judgment is conditionally reversed. The cause is

remanded to the trial court with directions to conduct a diversion

eligibility hearing under section 1001.36. If the court determines

Dixon qualifies for diversion under section 1001.36, then it may

grant diversion. If Dixon successfully completes diversion, then

the court shall dismiss the charges. If, however, the trial court

determines Dixon is ineligible for diversion under section

1001.36, or he does not successfully complete diversion, then the

court shall re-sentence Dixon. In determining Dixon’s sentence,

the court may consider mental health as a possible mitigating

factor.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J.

We concur:

MANELLA, P.J.

COLLINS, J.

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