Filed 10/19/20 P. v. Dixon CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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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.
2
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.
3
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 . . . .”
6
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.
8
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.”
9
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.”
11
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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