Filed 10/7/21 P. v. Dixon CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE
THE PEOPLE, B306637
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA473202
v.
SHIMRON SHERWIN DIXON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Stephen A. Marcus, Judge. Affirmed.
Stephen M. Hinkle, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Noah P. Hill and Nima Razfar,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
A jury convicted defendant and appellant Shimron Sherwin
Dixon of the first degree murder of Luis Gonzalez. The jury
found gun and gang allegations true. On appeal, Dixon contends
the trial court violated his constitutional rights by (1) excluding
an officer’s testimony about Dixon’s possible intoxication an
hour or so before the murder, and (2) imposing a restitution
fine and court fees without determining his ability to pay them.
We affirm.
FACTS AND PROCEDURAL BACKGROUND
1. The shooting
As Dixon doesn’t challenge the evidence against him,
we summarize it only briefly. On the morning of November 5,
2018, Luis Gonzalez was working at a body shop and tire store
he owned on Slauson Avenue. Gonzalez’s wife Victoria Rodriguez
worked with him there. The business had a storage building
for parts and supplies. That morning, Gonzalez and Rodriguez
had received a shipment of oil and were unloading it from a car.
Rodriguez heard her husband call out. She looked toward
the business and saw a person later identified as Dixon in front
of one wall. Dixon began approaching Gonzalez. Gonzalez asked
Dixon what he was doing. Gonzalez and Dixon “exchanged
words” in angry tones for two or three minutes.
Dixon began walking toward a daycare center next door.
Gonzalez followed him and they started arguing again. Gonzalez
turned back toward his business. Dixon lifted his sweater and
pulled out a gun. Rodriguez screamed at her husband to “run
or do something because he’s going to shoot you.” Dixon shot
Gonzalez three to five times. Gonzalez “collaps[ed] little by little”
and Rodriguez ran toward the business to call her brother-in-law.
Filberto Becera had lived on the same block as Gonzalez’s
shop for 16 or 17 years. Around 10:30 on the morning of
November 5, 2018 he heard six or seven shots. Becera went
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outside to look for his son. He saw Dixon walking slowly
on the sidewalk. Dixon said, “Loco dude shooting down there.
Guy’s shooting down there in the corner.” Dixon crossed
the street, walking slowly and looking back. Becera later
picked Dixon’s picture out of a photo lineup.
Officers who responded to the scene saw spray painted
graffiti on a wall of Gonzalez’s business. The graffiti was “RMS.”
Jurors were shown surveillance video from nearby businesses
of Dixon spray painting the wall. The video contained audio
of Dixon asking Gonzalez, “You got a problem?” and then saying,
“R-M-S Locos. That’s my barrio.”
RMS is a gang. The letters stand for “Reload My Strap,”
“Real Mad Skills,” “Reefer, Money, Sex,” or “Repping My Set.”
Jurors were shown an Instagram photo of Dixon making a
gang sign with his hands.
A deputy medical examiner testified Gonzalez had been
shot seven times, including a shot to the chest that struck various
organs, caused significant bleeding, and was fatal.
In November 2018 Barbara Bennett was dating Dixon.
Dixon was living with Bennett and her brother at a house rented
by their mother, Patricia Wyrick. Sometime between 10:00 and
11:00 a.m. on the morning of November 5, Dixon woke Bennett
up “in a panic,” “[l]ike freaking out.” Dixon had “an accident
slip in his hand.” Dixon had taken Bennett’s car—a gray 2013
Chevy Impala—and wrecked it.
Bennett walked to the scene of the collision where she
found her parked car. It was totaled. A tow truck towed the car
back to Bennett’s house. Dixon rode with the tow truck driver
and Bennett walked. Wyrick demanded Dixon pay the tow
truck driver. Dixon told the driver he had to go get the money.
Dixon and the driver left. They were gone about 30 minutes.
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Wyrick and Bennett walked to a mini-mart where Dixon
used to work. When they returned to Bennett’s house, Dixon
was asleep on the porch. Wyrick said “it took a while to wake
him up.” Bennett and Wyrick told Dixon he had to leave. They
threw Dixon’s belongings out of the house. About 15 minutes
later, Bennett and Wyrick saw that Dixon and his belongings
were gone.
Dixon texted Bennett every day. At first the texts said
he was remorseful and sorry. But after Bennett told Dixon she
“didn’t want any contact with him anymore,” the texts became
threats: “I want to kill you. Just threats. Threats after threats.
I know where you live. . . . I know where your mother lives.”
Dixon told Bennett he knew what time her brother went to school
and where the school was. He threatened to “go up to his school
and shoot him.” Dixon called Bennett about 100 times.
2. The charges, verdicts, and sentence
The People charged Dixon with Gonzalez’s murder. The
People alleged that Dixon had personally and intentionally used
and discharged a firearm causing Gonzalez’s death and that he
had committed the crime for the benefit of a criminal street gang.
The People also charged Dixon with criminal threats against
Bennett.
Dixon chose not to testify.
The jury convicted Dixon of first degree murder and found
the firearm and gang allegations true. The jury acquitted Dixon
on the criminal threats charge. The court sentenced Dixon to
50 years to life. The court ordered Dixon to pay a restitution
fine of $500 under Penal Code section 1202.4, subdivision (b),1
a $40 court security fee under section 1465.8, and a $30 criminal
1 References to statutes are to the Penal Code.
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conviction assessment under Government Code section 70373.
The court imposed and stayed a parole revocation restitution fine
of $500 under section 1202.45. Neither Dixon nor his counsel
objected to the restitution fine or fees, or asserted any inability
to pay them.
DISCUSSION
1. The trial court did not abuse its discretion when
it excluded an officer’s testimony about Dixon’s
demeanor an hour or so before the shooting
a. Trial testimony about possible intoxication
At trial, defense counsel asked Bennett if Dixon “appear[ed]
high” when he woke her up that morning. Bennett answered,
“Yes.” Wyrick also testified that, when she asked Dixon where
the car was, he “stuttered . . . like he was high.” When the
prosecutor asked Wyrick how she knew Dixon was high,
she responded, “I know people that use drugs. I know when
someone’s high.” Neither attorney asked Bennett or Wyrick
any more questions on the subject, such as whether Dixon
used drugs, what kind of drugs he used, or when they’d last
seen him use.
Officer Andy Procel testified that, around 9:45 a.m. on
the morning of November 5, 2018, he was at a car wash when
he heard a traffic collision. One of the motorists involved
in the collision was Dixon. Procel “approached both vehicles
to render aid.” Dixon “had a big bulge in his waistband area”;
it turned out to be a spray paint can.
While Procel “[got Dixon’s] information”—“normal
information for a car accident”—his partner called for traffic
officers. Dixon then moved the car “to a safer location” on
a nearby corner. The prosecutor asked Procel if he’d searched
Dixon’s car and Procel said he hadn’t. He explained, “There
was no reason to at that point. It was just a traffic accident.”
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The prosecutor asked, “[D]id anything else about the defendant’s
demeanor . . . cause[ ] you to do a more serious investigation;
such as a D.U.I. or drug under the influence [sic] investigation?”
Procel answered, “No.”
On cross-examination, defense counsel asked Procel
if “there was a discussion about the person in the car [Dixon]
being high.” The prosecutor objected. At sidebar, defense counsel
said, “I wasn’t planning on getting into any of this until” the
prosecutor elicited testimony about a possible DUI investigation.
Apparently referring to a dashcam or body-worn recording device,
counsel said, “I’ve heard this video, they talk about him being
high and uninsured. There’s some discussion of it.”
The court said, “Here is the problem[.] . . . [A]ssume
for the moment you’re correct. Why is it relevant? Whether he
was high or not, it’s an hour before the actual events in this case
and . . . there’s the danger of the jury misusing any information
about him being high or not being high. You’re not presenting
[a voluntary] intoxication [defense].”2
Counsel did not contradict the court or say he was planning
to present a voluntary intoxication defense. Instead, he said,
“Because of the way he answered the question about his
investigation it becomes an issue about his credibility.”
The court agreed, telling the prosecutor his questioning had
been “misleading.” The court said it was inclined to exclude
the line of questioning but would permit counsel to question
Procel outside the jury’s presence.
2 The reporter’s transcript reads, “You’re not presenting
involuntary intoxication offense.” It is plain from the context,
however, that what the court meant was “a voluntary
intoxication defense.”
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With the jury on break, defense counsel asked Procel, “Do
you remember a conversation about the person in the vehicle . . .
appearing high and uninsured and that’s why he’s freaking out?”
Procel answered, “I just remember him wanting to go back to
the vehicle.” Counsel played the recording for the witness, then
asked, “[D]oes that help refresh your recollection about whether
he was ‘smoking some shit’ or something to that tune [sic]?”
Procel responded, “As far as him being high, no. I do remember
he kept wanting to go back to his vehicle.” Counsel asked,
“Was that you who said he was ‘smoking some shit’?” Procel
answered, “Yes, sir.” Counsel asked, “That didn’t concern you
as to his level of sobriety?” Procel responded, “I just remember
he was acting strange. He appeared to be more nervous than
high or anything.”
Defense counsel asked no further questions of Procel during
the hearing outside the jury’s presence. The court concluded it
was “not going to go down that road” based on lack of relevance
as well as consumption of time.
b. The jury instruction conference
On the morning of the last day of testimony, the court
discussed jury instructions with counsel. The court had given
counsel a set of proposed instructions the day before. Defense
counsel asked the court to instruct on voluntary intoxication.
Counsel said, “I realize . . . the jury did not hear significant
evidence of voluntary intoxication. Out of an abundance of
caution, I’d ask the court to give that instruction.” The court
referred to CALJIC Nos. 4.21.1 and 4.22; counsel confirmed
those were the instructions he was requesting.
The court stated, “The simple response is there is
insufficient evidence to support it. I have a number of cases,
basically, [that say] it’s not sufficient just to say that someone’s
intoxicated.” The court continued, “You really don’t have
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much evidence, in that, you have to tie the possible intoxication
to the defendant’s actual[ ] formation of, or failure to form
the requisite state [of mind] for the charge of the first degree
premeditated murder. That’s really specific.”
The court discussed cases it had read: People v. Ivans
(1992) 2 Cal.App.4th 1654, People v. Williams (1988) 45 Cal.3d
1268, and People v. Rodriguez (1986) 42 Cal.3d 730. The court
said,
“[Y]ou didn’t go into it in any great detail.
We had several of the people, Patricia and
Ms. Bennett[;] they both said that he was high.
[¶] They didn’t give any idea as to . . . how high
he was or [how] intoxicated. There was no
evidence that he actually took any drugs or
had any drinking [sic]. [¶] We had no testimony
from the defendant himself explaining . . .
how the intoxication may have [a]ffected him,
if he was, in fact, intoxicated. [¶] Even more
significantly there was no expert called that
might have provided [testimony] to fill in
the gap.”
The court observed that “an intoxication instruction is
not required when the evidence shows that a defendant ingested
drugs or was drinking, unless evidence also shows he became
intoxicated to the point he failed to form the requisite intent or
obtain the requisite mental state.” The court then told defense
counsel, “You have your record. I assume you’re objecting
to not giving it—is that right—you’re requesting it and I’m
denying it?” Counsel responded, “Thank you.”
c. The trial court did not err
Dixon concedes that, “The court correctly denied, based
on the evidence that had been presented, an instruction on
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voluntary intoxication.” He also concedes the evidence that
Bennett and Wyrick found Dixon “passed out” or sleeping
“does not, obviously, establish that appellant was intoxicated
at the time of the shooting.”3
Instead, Dixon contends, “The error by the court was
that the court cut off inquiry into appellant’s level of intoxication
before the shooting, through examination of Officer Procel.”
Dixon asserts, “Officer Procel clearly thought appellant was
intoxicated to at least some degree.” The record belies these
assertions.
The record on appeal does not include the “video” defense
counsel said he had listened to when the court discussed the issue
with counsel at sidebar. It is unclear if the reference to Dixon
“being high and uninsured” was a conversation between
the officers, and if the reference to “smoking some shit” also
was an officers’ conversation or a question Procel asked Dixon.
3 The reporter’s transcript repeatedly misspells “passed”
as “past.” Bennett first testified she found Dixon “sleeping”
on her porch. Later, defense counsel asked her, “When you
got home is that when you described Mr. Dixon’s [passed] out
in front of the house?” Bennett answered, “Yes.” Defense
counsel asked, “By ‘[passed] out’ do you mean he is asleep?”
Bennett again answered, “Yes.”
Wyrick testified that when she and Bennett returned
from the mini-mart Dixon “was on the porch sleep [sic].” She
continued, “We tried to wake him up. And it took a while to
wake him up.” Bennett testified this was around noon, but
Wyrick testified it was probably about 3:00 p.m. Neither witness
ever testified Dixon appeared to be unconscious or “passed out”
from drugs or alcohol. The record does not support Dixon’s
assertion on appeal that, “There was evidence presented that,
within an hour or an hour and a half after the shooting, appellant
was so intoxicated that he passed out.”
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In any event, the court sent the jurors away so defense counsel
could question Procel further on the issue outside their presence.
Even after the video was played in an effort to refresh Procel’s
recollection, he seemed to deny that he had believed Dixon
was “high”: “As far as him being high, no[;] I do remember he
kept wanting to go back to his vehicle.” When asked about the
“smoking some shit” remark, Procel responded, “I just remember
he was acting strange. He appeared to be more nervous than
high or anything.” Procel did not arrest Dixon for driving under
the influence, and he permitted Dixon to go move his car to
a safer corner. Surely Procel would not have allowed Dixon to
get back into his car and drive it if he thought he was impaired.
As for his repeated assertions that the trial court “cut
off questioning” during the hearing, Dixon is mistaken. After
defense counsel asked Procel if he’d been concerned about Dixon’s
“level of sobriety” and Procel gave the “acting strange” answer,
counsel didn’t ask any more questions. The court then
essentially said its tentative would be the ruling: “I’m not going
to go down that road.” Counsel never said he had more questions
on the subject or complained that the court had not allowed him
to finish his inquiry.
In sum, the court did not abuse its discretion in concluding
Procel’s testimony—that Dixon seemed more nervous than high,
and wanted to get back to his car—was not relevant to Procel’s
credibility4 and would “open[ ] the door to time-consuming
evidence that [the court didn’t] think [was] that probative.”
4 As the Attorney General notes, defense counsel told the
court the “high and uninsured” line of questioning was relevant
to Procel’s credibility; he did not argue it went to Dixon’s ability
to form the intent to shoot Gonzalez or any voluntary intoxication
defense.
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2. The trial court did not err in imposing a restitution
fine and court fees
Citing People v. Dueñas (2019) 30 Cal.App.5th 1157,
Dixon contends the trial court violated his due process rights
by imposing a $500 restitution fine and court fees without
making a determination that he had the ability to pay them.
Dixon was sentenced 18 months after Dueñas was decided yet
he didn’t cite that case or challenge the imposition of the fine
and fees. Indeed, after listing the fine and fees, the trial court
asked defense counsel, “Mr. Sadr, anything you want to say or
that you want to discuss?” Counsel answered, “No, Your Honor.”
Moreover, even before Dueñas was issued, section 1202.4,
subdivision (d) provided that inability to pay could be considered
if the restitution fine imposed exceeded the statutory minimum.
(§ 1202.4, subd. (d).) Because the $500 fine imposed was
above the minimum of $300, Dixon had a statutory right to
an ability-to-pay determination at sentencing. Yet neither he
nor his counsel objected, asserted he was indigent, or requested
an ability-to-pay determination.
As a general matter, the failure to raise an argument in
the lower court forfeits the argument the ruling was erroneous.
(See People v. Trujillo (2015) 60 Cal.4th 850, 856 [constitutional
right 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].) By failing to raise this
issue below, Dixon forfeited the argument that the court erred
by not considering his ability to pay. (See People v. Miracle
(2018) 6 Cal.5th 318, 355-356 [by not objecting to restitution
fines above the statutory minimum at sentencing hearing,
defendant forfeited any challenge]; People v. Gamache (2010)
48 Cal.4th 347, 409 [same]; People v. Avila (2009) 46 Cal.4th 680,
728-729 [same].)
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Finally, the trial court’s imposition of the fine and fees
is not an “unauthorized sentence,” as Dixon contends. (See
People v. Jinkins (2020) 58 Cal.App.5th 707, 713.) Nor has Dixon
demonstrated that his counsel was constitutionally ineffective
in not objecting to the fine and fees. The record does not
establish Dixon was indigent and unable to pay, nor has he
shown a reasonable possibility of prejudice. Claims of ineffective
assistance usually must be raised in a petition for a writ of
habeas corpus, where relevant facts and circumstances not
reflected in the record on appeal can be brought to light to
inform the inquiry. (People v. Snow (2003) 30 Cal.4th 43, 111.)
“[R]arely will an appellate record establish ineffective assistance
of counsel.” (People v. Thompson (2010) 49 Cal.4th 79, 122.)
This is not that rare appellate record.
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DISPOSITION
We affirm Shimron Sherwin Dixon’s judgment of
conviction.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
HILL, J.
Judge of the Santa Barbara Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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