Filed 7/19/21 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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.
ARCHIE PERNELL DIXON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles
County, Robert J. Perry, Judge. Affirmed.
Alan Siraco, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Matthew Rodriquez, Acting
Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Susan Sullivan Pithey, Assistant Attorney General, and Idan Ivri 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 for
resentencing under Penal Code section 1170.95.1
In 1997, a jury convicted appellant 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
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).)2
In 2018, the trial court granted appellant’s petition for writ of
habeas corpus on the robbery-murder special circumstance (People v.
Banks (2015) 61 Cal.4th 788), struck the LWOP sentence on count 1,
1 Undesignated statutory references are to the Penal Code.
2 We grant appellant’s request to take judicial notice of our prior opinion
in Dixon I.
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and resentenced appellant to 25 years. The court maintained the same
sentences it had imposed on counts 2 and 3.
In 2019, appellant filed his first petition for resentencing under
section 1170.95. Section 1170.95 provides that persons who were
convicted under theories of felony murder or murder under the natural
and probable consequences doctrine, and who could no longer be
convicted of murder following the enactment of Senate Bill No. 1437
(S.B. 1437), may petition the sentencing court to vacate the conviction
and resentence on any remaining counts. (Stats. 2018, ch. 1015, § 1,
subd. (f).) Appellant’s first petition requested that the court vacate his
first degree murder conviction. 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.
Appellant filed his second section 1170.95 petition on May 23,
2020, this time seeking resentencing on his attempted murder
conviction. Attached to the petition was a handwritten letter in which
appellant claimed he was “now able to receive relief on [his] charge of
attempted murder . . . under the natural and probable consequences
3
doctrine” in light of People v. Medrano (2019) 42 Cal.App.5th 1001,
review granted March 11, 2020, S259948 (Medrano).3
Prior to appointing counsel, on July 6, 2020, the trial court
summarily denied appellant’s second petition. The court reasoned that
Medrano and Lopez clarified that S.B. 1437 does not provide relief for
persons convicted of attempted murder.
In this appeal, appellant contends that that S.B. 1437 abrogated
the natural and probable consequences doctrine as it applies to murder
and attempted murder. He asserts that he is entitled to the
ameliorative provisions in S.B. 1437 and section 1170.95 because he
could have been convicted of aiding and abetting attempted murder
under the natural and probable consequences doctrine.
Appellant has not provided this court with a record from which we
may determine whether he was tried or convicted of attempted murder
under the natural and probable consequences doctrine. In any event,
consistent with our prior decisions on this issue, we conclude that
3 The Supreme Court granted review in Medrano and deferred further
action pending consideration and disposition of related issues in People v.
Lopez (2019) 38 Cal.App.5th 1087, review granted November 13, 2019,
S258175 (Lopez). The Court’s review of Lopez is limited to the following:
“(1) Does Senate Bill No. 1437 (Stats. 2018, ch. 1015) apply to attempted
murder liability under the natural and probable consequences doctrine?
(2) In order to convict an aider and abettor of attempted willful, deliberate
and premeditated murder under the natural and probable consequences
doctrine, must a premeditated attempt to murder have been a natural and
probable consequence of the target offense?” (Ibid.)
4
section 1170.95 may not be used to obtain resentencing on already-final
attempted murder convictions.4 We affirm.
BACKGROUND5
On March 23, 1995, police officers found a man and woman lying
on the living room floor of a Lancaster home. The man was dead; the
woman was barely alive, gagged, bound, and covered in blood.
Paramedics transported the woman to a nearby hospital where she lay
in a coma for weeks. Every room of the home had been ransacked.
During an interview with officers, appellant stated that he, Kevin
Simmons, and Robert Adams went to the home to steal marijuana.
When all three individuals entered the house, 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. Appellant believed Simmons and
Adams were going to set the house on fire. Simmons and Adams began
kicking and beating the woman, at which point Adams tried to give
4. In light of our conclusion, we do not consider the Attorney General’s
alternative contention that defendant’s second petition for resentencing was
barred under principles of collateral estoppel.
5 We recite the factual background from our opinion in Dixon I.
5
appellant a gun. Appellant refused to take the gun out of concern that
he would be told to shoot the victims. Appellant 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.
DISCUSSION
1. Governing Law: S.B. 1437 and Section 1170.95
The legislature enacted S.B. 1437 “to amend the felony murder
rule and the natural and probable consequences doctrine, as it relates to
murder, 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); accord,
§ 189, subd. (e).)
S.B. 1437 also “added a crucial limitation to section 188’s
definition of malice for purposes of the crime of murder.” (People v.
Verdugo (2020) 44 Cal.App.5th 320, 326 (Verdugo), rev. granted,
S260493, Mar. 18, 2020.) Under the revised section 188, subdivision
(a)(3), “‘[m]alice shall not be imputed to a person based solely on his or
her participation in a crime.’ [Citations.]” (People v. Lewis (2020) 43
Cal.App.5th 1128, 1135, rev. granted, S260598, Mar. 18, 2020.)
Section 1170.95, as enacted by S.B. 1437, permits individuals who
were convicted of felony murder or murder under the natural and
probable consequences doctrine, but who could not be convicted of
murder following S.B. 1437’s changes to sections 188 and 189, to
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petition the sentencing court to vacate the conviction and resentence on
any remaining counts. (§ 1170.95, subd. (a).) A petition for relief under
section 1170.95 must include a declaration by the petitioner that he is
eligible for relief under section 1170.95 based on all the requirements of
subdivision (a), the superior court case number and year of the
petitioner’s conviction, and a request for appointment of counsel, should
the petitioner seek appointment. (§ 1170.95, subd. (b)(2).)
Subdivision (c) of section 1170.95 provides “a two-step process” for
the court to determine if it should appoint counsel and issue an order to
show cause. (Verdugo, supra, 44 Cal.App.5th at p. 327.) The court first
“review[s] the petition and determine[s] if the petitioner has made a
prima facie showing that the petitioner falls within the provisions of
this section.” (§ 1170.95, subd. (c).) The petitioner makes a prima facie
showing so long as the assertions in his or her petition are not
conclusively refuted by facts in the record of conviction as a matter of
law. (Verdugo, supra, at p. 327; see People v. Drayton (2020) 47
Cal.App.5th 965, 968, 980; see also People v. Duchine (2021) 60
Cal.App.5th 798; but see People v. Garcia (2020) 57 Cal.App.5th 100,
116, rev. granted, Feb. 10, 2021, S265692.)
2. Analysis
Appellant contends that the trial court erred by denying his
petition without appointing him counsel. He asserts the ameliorative
provisions of S.B. 1437 and the petitioning procedures in section
1170.95 apply to attempted murder convictions based on the natural
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and probable consequences doctrine, a theory on which he contends his
conviction could have been based.
Appellant has furnished this court no argument or record to
demonstrate that he was tried and convicted of attempted murder
under the natural and probable consequences doctrine. (See People v.
Whalen (2013) 56 Cal.4th 1, 84–85 (Whalen), disapproved on other
grounds in People v. Romero and Self (2015) 62 Cal.4th 1, 44, fn. 17; see
also People v. Mayfield (1993) 5 Cal.4th 142, 196.)6 Without supplying
“a record adequate to review this claim,” appellant’s claim fails.
(Whalen, supra, at p. 85.)
Even assuming that the jury was instructed on the natural and
probable consequences doctrine as it applies to attempted murder,
appellant still is ineligible for relief as a matter of law. By its plain
language (our starting point for any statutory interpretation), section
1170.95 applies only to murder convictions. (See § 1170.95, subd. (a);
see also People v. Gonzales (2018) 6 Cal.5th 44, 50.) To establish
entitlement to relief, a petitioner must show he or she was charged with
“murder”; was convicted of “first degree or second degree murder”; and
could not have been convicted of “first or second degree murder” due to
changes to sections 188 or 189 wrought by S.B. 1437. (§ 1170.95, subd.
(a).)
6 Appellant checked off boxes on a pre-printed form that makes no
reference to a conviction for attempted murder. Appellant’s handwritten
request, despite referencing the natural and probable consequences doctrine,
does not allege that appellant was convicted under such a theory for
attempted murder.
8
All of the cases that have considered whether section 1170.95
provides relief for those convicted of attempted murder have either
categorically excluded such convictions from consideration (e.g., People
v. Love (2020) 55 Cal.App.5th 273, 279, rev. granted Dec. 16, 2020,
S265445; People v. Munoz (2019) 39 Cal.App.5th 738, 753–760, rev.
granted Nov. 26, 2019, S258234; Lopez, supra, 38 Cal.App.4th at
pp. 1103–1110), or have held that section 1170.95 provides no relief for
such convictions that are already final (People v. Sanchez (2020) 46
Cal.App.5th 637, 642–644, rev. granted June 10, 2020, S261768;
Medrano, supra, 42 Cal.App.5th at p. 1019; People v. Larios (2019) 42
Cal.App.5th 956, 969–970, rev. granted Feb. 26, 2020, S259983.) Under
either basis, appellant’s attempted murder conviction is not eligible for
resentencing under section 1170.95. Appellant’s direct appeal
concluded decades ago, and was final long before the enactment of S.B.
1437. (See People v. Vieira (2005) 35 Cal.4th 264, 306; Rules of the
United States Supreme Court, Rule 13(1); Cal. Rules of Court, rules
8.500(e), 8.366(b).)
We adhere to the foregoing cases and conclude that section
1170.95 provides no relief to defendants like appellant whose attempted
murder convictions were final prior to S.B. 1437’s enactment.
Therefore, the court did not err by summarily denying his petition for
resentencing.
//
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.
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