Filed 1/30/14 P. v. Dixon CA3
                                           NOT TO BE PUBLISHED
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(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)




THE PEOPLE,                                                                                  C073800

                   Plaintiff and Respondent,                                     (Super. Ct. No. 11F06831)

         v.

ALEXANDER REY DIXON et al.,

                   Defendants and Appellants.




         A jury convicted defendants Alexander Rey Dixon and Francisco Javier Nunez of
assault with a deadly weapon, to wit, a sharp instrument, and by means of force likely to
produce great bodily injury while in state prison (Pen. Code, § 4501;1 count one) and
possession of a sharp instrument while confined in prison (§ 4502, subd. (a); Dixon,
count two; Nunez, count three). In bifurcated proceedings, the trial court found that each
defendant had two strike priors. (§§ 667, subds. (b)-(i), 1170.12.)


1   Undesignated section references are to the Penal Code.

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       At sentencing on May 13, 2013, the trial court imposed a 25-year-to-life term on
count one for each defendant, to run consecutively to the term they were then serving.
The court stayed (§ 654) a 25-year-to-life term on count two (Dixon) and count three
(Nunez).
       Defendants appeal. Defendants contend they were entitled to be sentenced on
counts two/three under the Three Strikes Reform Act of 2012 (§§ 667, 1170.12,
1170.126; Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012); hereafter Three
Strikes Reform Act). The People concede. We agree and will remand for resentencing
on counts two and three. Defendant Dixon also contends that the trial court abused its
discretion in failing to strike one of his strike priors. We reject this contention.
                                           FACTS
       On May 1, 2011, defendants Dixon and Nunez, inmates at a state prison, charged
at inmate Lance Melendez and repeatedly stabbed him on his head and upper body.
Defendants did not comply with an order for all inmates to get down. Officers fired foam
batons and one struck defendant Nunez who then got on the ground. An officer set off a
dispersion grenade near defendant Dixon and Melendez. Dixon then complied with the
order to get down. A video recording showed only defendants were involved in the
assault. Two sharp metal weapons were found in the area of the assault.
                                        DISCUSSION
                                               I
       The Three Strikes Reform Act amended sections 667 and 1170.12, limiting three
strikes sentencing on a current conviction for a serious or violent felony or where the
prosecution pleads and proves certain circumstances. The amendments became effective
November 7, 2012. Defendants were tried and convicted after the effective date of the
Three Strikes Reform Act so they are not subject to 25-year-to life terms for convictions
for felonies that are neither serious nor violent. (People v. Yearwood (2013)
213 Cal.App.4th 161, 167-168.) Possession of a sharp instrument while in prison is not a

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serious or violent felony. (§§ 667.5, subd. (c), 1192.7, subd. (c).) The prosecution did
not plead circumstances in connection with the possession offense to constitute an
exception to the new limit on a three strikes sentence. While the trial court properly
sentenced defendants on the assault offense under the three strikes scheme, the trial court
should have sentenced defendants under the second strike scheme for their respective
possession offenses (counts two/three). We will remand for resentencing on counts
two/three.
                                               II
       Defendant Dixon contends the trial court abused its discretion in denying his
request to strike a strike prior. (§ 1385; People v. Superior Court (Romero) (1996)
13 Cal.4th 497.) We disagree.
       A trial court has the discretion to strike a strike prior only if the defendant falls
outside the spirit of the three strikes law. (§ 1385; People v. Williams (1998) 17 Cal.4th
148, 161 (Williams).) The court “must consider whether, in light of the nature and
circumstances of his present felonies and prior serious and/or violent felony convictions,
and the particulars of his background, character, and prospects, the defendant may be
deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as
though he had not previously been convicted of one or more serious and/or violent
felonies.” (Williams, at p. 161.)
       We will not reverse the ruling on a Romero request for an abuse of discretion
unless the defendant shows the decision was “so irrational or arbitrary that no reasonable
person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.) Reversal
is justified where the trial court was “not ‘aware of its discretion’ ” to strike a strike prior
or “considered impermissible factors” to support its refusal to do so. (Id. at p. 378.) But
where the trial court “ ‘balanced the relevant facts and reached an impartial decision in
conformity with the spirit of the law, we shall affirm the trial court’s ruling . . . ’
[citation].” (Ibid.)

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       In denying defendant’s request to strike a strike prior, the trial court noted
defendant Dixon’s criminal history and found that his record reflected “significant
criminal conduct that threatened the community” and that defendant Dixon was a “danger
to the community.” The court opined that defendant Dixon was attempting to kill the
victim in the current case.
       Defendant Dixon argues the trial court abused its discretion in denying his request.
He relies on People v. Bishop (1997) 56 Cal.App.4th 1245 (Bishop), noting that his two
strike priors occurred in a single incident and, had a strike prior been stricken, he would
have still served a lengthy sentence. Such reliance is misplaced. Fifty-year-old Bishop
was convicted of petty theft with a prior theft-related conviction for shoplifting six
videocassettes. He had three strike priors. Notwithstanding Bishop’s many convictions
since committing the strike offenses, the trial court dismissed two strike priors, reasoning
that the strike priors were remote in time (17 to 20 years old), the current offense was
nonviolent, and a 12-year sentence would keep Bishop in prison for a significant period
of time. (Id. at pp. 1247-1249, & fns. 1, 3.) Bishop affirmed, commenting: “Bishop is
not a worthy member of society. . . . While the People and perhaps even this court may
be of the opinion that Bishop appears undeserving of leniency, the paramount
consideration is not what the prosecution, defense or appellate court might conclude.
Rather, what counts is what the trial court in this case concluded, as expressed by the
reasons it stated under section 1385, subdivision (a). On this record, we cannot say that
the trial court’s decision to dismiss two of Bishop’s strikes in furtherance of justice
constituted an abuse of discretion.” (Id. at p. 1251.)
       Here, the 25-year-old defendant Dixon had been an active gang member since the
age of 15 years. He was adjudged a ward of the court when he was 17 years of age for
possession of a concealed firearm, a felony, and was granted probation. Defendant was
convicted in 2007 of assault with a deadly weapon (§ 245, subd. (a)(1)) with personal use
of a firearm (§ 12022.5, subd. (a)). The offense was committed for the benefit of the

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gang. (§ 186.22, subd. (b).) The probation report reflected that defendant had flashed a
gang sign at a nongang acquaintance with whom defendant had had problems. Defendant
pulled out a gun and fired at the victim as he drove past, striking the trunk of the victim’s
car. Defendant was sentenced to state prison for an aggregate term of 22 years. Two
years before, defendant shot at a victim who caught defendant spraying graffiti on a
public wall. He was convicted of carrying a concealed firearm (former § 12025, subd.
(b)(1)), committing the offense for the benefit of a gang (§ 186.22, subd. (a)), and was
sentenced to a four-year term to run concurrently to his 22-year term. Defendant
admitted to the probation officer that he had a lengthy juvenile record which included
vandalism at 14 years of age with 36 days in juvenile hall, grand theft auto and domestic
violence at 15 years of age, and that he had 10 violations of probation for escape from
placement and theft. While in the Department of Corrections and Rehabilitation since
2007, defendant had refused a direct order and possessed contraband. The prosecutor
reported that since the current offense, defendant had twice participated in a riot.
Defendant began using alcohol and marijuana at the age of 13 years and
methamphetamine at the age of 14 years.
       Defendant Dixon is, as the trial court found, a “danger” to society. His criminal
conduct, including his current offense, in his relatively short life has been extremely
violent and not remote as in Bishop. The trial court concluded defendant Dixon was not
deserving of leniency. We do not find any abuse of discretion.




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                                        DISPOSITION
       The sentences on counts two (Dixon) and three (Nunez) are vacated and the
matters are remanded to the trial court for resentencing on those counts. In all other
respects, the judgments are affirmed.


                                             BLEASE                   , Acting P. J.


We concur:


         ROBIE                     , J.


         BUTZ                      , J.




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