People v. Nixon CA3

Filed 8/16/24 P. v. Nixon CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C098639

Plaintiff and Respondent, (Super. Ct. No. 20FE013655)

v.

DONALD ALAN NIXON,

Defendant and Appellant.

Defendant David Alan Nixon is serving a seven-year sentence for assault with a deadly weapon. On appeal, he contends that the trial court violated the Sixth Amendment and denied him due process by sentencing him to the upper term based on aggravating circumstances that were neither alleged by the prosecution nor proven to a jury beyond a reasonable doubt. Finding no constitutional violation, we affirm. BACKGROUND An amended information charged Nixon with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and alleged as enhancements that Nixon personally used a deadly weapon (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury

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(§ 12022.7, subd. (a)).1 The information also alleged three aggravating circumstances: (1) that Nixon committed a crime involving great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1)); (2) that he was armed with or used a weapon in committing the crime (rule 4.421(a)(2)); and (3) that the victim was particularly vulnerable (rule 4.421(a)(3)).2 In 2020, Nixon and the victim, K.W., lived in the same apartment complex in Sacramento. They were friends and spent time together. Their relationship changed when she told him she could not buy him cigarettes. Nixon sent her a text calling her a “bitch” and “ungrateful.” K.W. would still see Nixon around the complex but did not speak to him. In the evening of August 25, 2020, after she returned home from work, K.W. joined two neighbors talking outside. Nixon was also outside, drinking wine and talking with other residents. At one point, Nixon got up and said, “I’m about to go start some shit.” He walked over to where K.W. was standing and called her a “bitch.” K.W. told him that, “[i]f you are feeling that drunk, you should go inside.” Nixon threw a glass of wine in K.W.’s face. He hit her with the wine glass, breaking it. He continued to hit her with the broken glass, striking her six or seven times. After the fourth time, K.W. fell to the ground, and Nixon continued to hit her. He stood down after a resident told him to stop. K.W. had a large gash on her face. Skin was hanging off her cheek. Witnesses put a towel on her face as a makeshift bandage. There was blood all over K.W., the sidewalk, and a fence in the area.