Filed 7/2/15 P. v. Dixon CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B255903

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA092258)
         v.

JEFFERY LEE DIXON,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Arthur H. Jean, Jr., Judge. Affirmed.


         Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Jason C. Tran and Taylor
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.


                                       __________________________
       A jury rejected defendant and appellant Jeffery Lee Dixon’s heat of passion, self-
defense and imperfect self-defense claims and found him guilty of second degree murder,
with a finding that he personally used a deadly weapon –– a belt and an electrical cord ––
to cause the victim’s death. (Pen. Code, §§ 187, subd. (a); 12022, subd. (b)(1).)1 The
trial court found Dixon had two prior strike convictions, a prior serious felony conviction,
and two prior convictions with a prison term. (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-
(d); 667, subd. (a)(1); and 667.5, subd. (b).) The trial court sentenced Dixon to serve a
total aggregate term in state prison of 51 years to life. We affirm.
                                          FACTS
The Discovery of the Victim’s Body
       On May 1, 2012, Long Beach Police Department (LBPD) officers responded to a
triplex residential building on Ellis Street in Long Beach after an anonymous 9-1-1 call.
Dixon lived in one of the apartments at the property. A Chrysler PT Cruiser registered to
Monique Burton was parked near the property. Over the course of ensuing events, LBPD
Detective Mark McGuire obtained a search warrant, and officers broke through the front
door of Dixon’s apartment.
       Inside the apartment the officers found the body of a deceased woman, later
identified as Burton.2 Officers also found a set of car keys and a disassembled cell phone
on the kitchen counter. There were cleaning products and construction tools in the
kitchen. There was also a broken dinner tray, blood evidence, blood-stained clothing in
two trash bags, a broken belt, and a broken electrical cord inside the apartment. Dixon
was not present at that scene.




1
       All further undesignated section references are to the Penal Code.
2
       An autopsy revealed that Burton died by strangulation. Injuries to her face and
neck were consistent with being strangled while faced down on the floor and someone
being on her back pulling the strangulation device upward. Burton also had secondary
blunt force trauma injuries to her head that contributed to her death.

                                             2
       In a small garage just outside Dixon’s apartment, officers discovered a three-foot
wide by five-foot deep hole. There was a ladder in the hole and a shovel nearby.
Dixon’s Arrest and Interview Statements
       On May 2, 2012, Los Angeles Police Department (LAPD) officers arrested Dixon
as he was walking out of his sister’s residence in Compton. As LAPD Detective Jacinto
Ponce was handcuffing Dixon, he spontaneously stated, “It is me. I am the guy you are
looking for. I knew Long Beach PD was looking for me.” Detective Ponce did not ask
Dixon any questions or respond back in any way; he “just let [Dixon] talk.” As Detective
Ponce walked Dixon to a police van, Dixon volunteered, “I killed her.” A moment later,
after the detective and Dixon were sitting in the police van, Dixon volunteered still more,
saying, “My family had nothing to do with it. It was only me. It was all me.”
       LBPD Detective McGuire interviewed Dixon following his arrest. Recordings of
the interviews were played for the jury. Dixon stated he met Burton while he was living
in Wilmington. During their relationship, Burton falsely accused him of raping her.
Dixon tried to get away from Burton by moving to Long Beach, but she found his
address. They continued a sexual relationship.
       Dixon stated that Burton came to his apartment to get money on Monday night,
April 30, 2012, and she was acting “like a ravin’ beast.” They began arguing, and Burton
punched Dixon in the mouth and hit him in the head with a wooden dinner tray. Dixon
hit Burton back; he stated he may have hit her with a stick that had broken off of the
dinner tray. Burton threatened to call the police because Dixon was a “third-strike
offender.” At that point, “all [Dixon] was thinkin’ about was the three strikes.” He
became enraged, and hit Burton with a folded chair, knocking her unconscious. While
Burton was “out,” Dixon strangled her with his belt, twisting the belt with a stick. He
also used an extension cord to strangle Burton. Dixon stated he wanted to make “sure”
Burton was dead because he was worried about his third strike. Dixon said he did not
plan to kill Burton before she came to his apartment.




                                             3
       After he killed Burton, Dixon cleaned up her blood with bleach and water.
He covered her body with a sheet and disassembled her cell phone. He then dug a hole in
the garage where he intended to bury her body, and covered the hole with cement.
The Criminal Case
       In October 2012, the People filed an information charging Dixon with murder.
The case was tried to a jury in March 2014 at which time the prosecution presented
evidence establishing the facts summarized above. Dixon testified in his own defense.
He testified about threats and false accusations from Burton. He admitted that he hit
Burton, but said he had done so in self-defense. He claimed that he killed her after his
self-defense went out of control. The trial court instructed the jury on first and second
degree murder and voluntary manslaughter based on theories of heat of passion and
imperfect self-defense.
       On March 27, 2014, the jury returned a verdict finding Dixon guilty of murder,
and finding the murder was committed in the second degree rather than the first degree.
Further, the verdict included a finding that Dixon personally used a deadly weapon, a belt
and electronic cord, which caused Burton’s death.
       Dixon filed a timely notice of appeal.
                                      DISCUSSION
   I. The Trial Court Did Not Err In Instructing the Jurors
        During defense counsel’s closing argument to the jury, the prosecutor objected at
two separate points when defense counsel urged the jurors to “walk in [Dixon’s] shoes”
and “walk his path.” In both instances, the trial court sustained the prosecutor’s
objections to the statements. On appeal, Dixon argues the trial court’s admonitions
during argument constituted prejudicial instructional error requiring the reversal of his
murder conviction. We disagree.
       Fairly early during defense counsel’s closing argument, the following exchange
occurred:
              “[DEFENSE COUNSEL]: The prosecution made a big deal that he
       intended to kill her. Yes, we know that. That’s a fact. He admitted that

                                                4
      from day one. In fact, he told his sister . . . oh my God, I can’t believe I
      killed a woman. I have to go on the run. She attacked me. She beat me.
      She was harassing me. And I fought back and I lost it. He told that to his
      sister before the police were involved and was frantic and panicked and
      running around and driving all night . . .
             “This was definitely done in the heat of passion, definitely began in
      self-defense regardless of whether or not you feel he took it too far and
      acted unreasonably and, God forbid, that any one of use ever has to walk in
      his shoes.
             “[PROSECUTOR]: Objection, Your Honor.
             “THE COURT: Sustained. You can’t impose your own personal life
      probability in this. You can use your life experiences but this is not about
      you. It is about the case.”


      Later, near the end of defense counsel’s closing argument, the following exchange
occurred :
             “[DEFENSE COUNSEL]: If you think his actions were
      unreasonable but he was defending himself, lost control, heat of passion,
      took it too far, point of no return, and you have reasonable doubt and you
      are not sure, and you are weighing them, could this be murder? Could this
      be manslaughter? If you have a reasonable doubt, you must give him the
      benefit of the doubt.
             “That’s what the law says. You must find him guilty of
      manslaughter only. He was defending himself. He lost it. There is nothing
      to contradict that. In your deliberations you must put yourself in his shoes.
      You have to walk in his path.
             “[PROSECUTOR]: Your Honor, objection.




                                             5
              “THE COURT: I don’t think so. This is not a personal thing. You
       are acting as judges. And so conduct yourself that way. Thank you. The
       objection is sustained.”
       We find no error occurred in Dixon’s case because the trial court’s instructions
during defense counsel’s closing argument did not communicate any incorrect statement
of law. Dixon is correct that an element of objective reasonableness was involved in his
case as to his self-defense claim (see, e.g., People v. Humphrey (1996) 13 Cal.4th 1073,
1082-1083); that an element of actual subjective belief in the need to defend himself was
also an issue for imperfect self-defense (see, e.g., People v. Rios (2000) 23 Cal.4th 450,
461); and that an element of a reasonable person’s reaction was also involved as to heat
of passion (see, e.g., People v. Breverman (1998) 19 Cal.4th 142, 153-154). However,
we disagree with Dixon that the trial court’s instructions told the jurors that they were not
to consider such elements.
       The trial court’s instructions, read in context and given a plain interpretation, did
no more than remind the jurors that it was Dixon who was on trial, not any of them, and
that they were to decide the case based on their determinations about Dixon’s actions, not
based on their sympathies about the case. Further, the court expressly told the jurors that
they could rely on their own life experiences in deciding the case. They simply were not
supposed to substitute themselves into Dixon’s place, and the court properly so informed
the jury. 3
       Even assuming the trial court committed instructional error, we would find the
error harmless under People v. Watson (1956) 46 Cal.2d 818, 836. (See People v.
Beltran (2013) 56 Cal.4th 935, 955 [an instructional error in a criminal case is evaluated
under Watson standard]; and see also People v. Kelly (1992) 1 Cal.4th 495, 526 [accord].)
The trial court’s remaining instructions and the legal arguments of the lawyers correctly
explained all of the law relevant to Dixon’s case, and he does not contend otherwise. The

3
      We summarily reject Dixon’s contention that the court’s rulings in response to the
prosecutor’s objections amounted to a comment on the evidence. The court did not
express any opinion on how the jury should resolve the evidence.

                                              6
evidence that Dixon committed a murder was overwhelming. Further, given the correct
jury instructions, the arguments of the lawyers, and the strength of the evidence against
Dixon, we would find any error related to the trial court’s passing instructions during
defense counsel’s argument to have been harmless even were we to apply the
constitutional standard of Chapman v. California (1967) 386 U.S. 18, 24.
II.    The Probation Report Issue
       Dixon contends the trial court abused its discretion at the sentencing hearing when
it denied his request to strike certain information from the probation report. Specifically,
Dixon argues that material in the report reflecting LBPD Detective McGuire’s opinion
that Dixon was not remorseful about his crime must be stricken because it was contrary
to the detective’s trial testimony that Dixon was forthcoming, remorseful, and
cooperative during his post-arrest interviews. Dixon expressly acknowledges that the
prejudice from the detective’s opinion in the probation report “lies not in the immediate
results of the sentencing hearing,” but rather, “lies in the future consideration [of] such
information . . . .” He plainly is postulating about a possible adverse effect on his release
date from state prison insofar as he asserts that probation reports are “especially
important with respect to defendants, such as [himself], sentenced to indeterminate terms
to be fixed in the future by the Board of Parole Hearings.” We find no abuse its
discretion.
       A sentencing court has the discretion to correct or to strike a probation report, in
whole or in part. (See Cal. Rules of Court, rule 4.437(d) & (e); and see generally
People v. Municipal Court (Lopez) (1981) 116 Cal.App.3d 456, 458-459.) The purpose
of this discretion is to assure that probation reports are founded on accurate and reliable
information, thus affording fundamental fairness to a defendant on matters related to the
report. Accordingly, when a defendant believes the probation report is insufficient or
inaccurate, or is based upon unreliable information, he may present evidence to
counteract or correct any portion of the report. (People v. Bloom (1983) 142 Cal.App.3d
310, 320.) As a general rule, reversal is not required unless the trial court has relied on
the inaccurate information. (People v. Phillips (1977) 76 Cal.App.3d 207, 215.)

                                              7
       Assuming without deciding that potential adverse effects in the future are properly
considered in addressing the accuracy of a probation report, Dixon has not shown an
abuse of discretion. His claim fails because it is based on a predicate that is not
supported by the record, namely, his contention that Detective McGuire testified at trial
that he believed Dixon was remorseful, only to state in the probation report that he
believed Dixon was not remorseful. A careful review of the cited trial testimony shows
that Detective McGuire did not testify that he believed Dixon was remorseful for his
crime. The detective’s testimony, on cross-examination, was that Dixon was very
forthcoming in expressing remorse to the detective during the post-arrest interviews.
The detective’s trial testimony acknowledging the fact that Dixon expressed remorse
during the post-arrest interviews does not contradict the detective’s opinion in the
probation report that he did not believe that Dixon was, in fact, remorseful. The
probation report does not indicate that Detective McGuire asserted that Dixon never
expressed remorse, in contradiction to his trial testimony. On the contrary, the probation
report shows Detective McGuire again acknowledged Dixon’s expressions of remorse,
but stated that “he does not believe that [Dixon] is truly sorry for his crime.”
                                      DISPOSITION
       The judgment is affirmed.




                                                          BIGELOW, P. J.
We concur:


                     RUBIN, J.




                     GRIMES, J.




                                              8
