People v. Dixon CA3

Filed 1/30/14 P. v. Dixon CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

1

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