California Court of Appeal Jun 25, 2014 No. E059123Unpublished
Filed 6/25/14 P. v. Dixon CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E059123
v. (Super.Ct.No. RIF1101213)
JAVONTE MARQUISE DIXON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Christian F. Thierbach,
Judge. Affirmed.
Anita P. Jog, under appointment by the Court of Appeal, for Defendant and
Appellant; Javonte Marquise Dixon, in pro. per.
No appearance for Plaintiff and Respondent.
1
I
STATEMENT OF THE CASE
On February 5, 2013, an amended information charged defendant and appellant
Javonte Marquise Dixon, along with two co-defendants, with sexual intercourse by force
and fear of a child under 14 years old while acting in concert with another person under
Penal Code1 section 264.1, subdivision (b)(1) (count 1); sodomy upon a child under 14
years old while acting in concert with another person under section 286, subdivision
(d)(2) (count 2); oral copulation of a child under 14 years old while acting in concert with
another person under section 288a, subdivision (d)(2) (count 3); lewd act by force and
fear upon a child under 14 years old under section 288, subdivision (b)(1) (count 4); and
active participation in a criminal street gang under section 186.22, subdivision (a) (count
5). With respect to counts 1 through 4, the information also alleged that the offenses
were committed during the commission of a burglary under section 667.61, subdivision
(e)(2), and that the requirements of section 667.61, subdivision (e)(7) were met. The
information further alleged, with respect to counts 1 through 4, that the offenses were
committed for the benefit of a criminal street gang under section 186.22, subdivision
(b)(1)(A).
On February 6, 2013, defendant pled guilty to counts 4 and 5, with the
understanding that he would receive a sentence of 10 years in prison, consisting of the
upper term on count 4.
1 All statutory references are to the Penal Code unless otherwise specified.
2
On February 27, 2013, defense counsel informed the court that defendant wanted
to withdraw his guilty plea; one of the grounds for the motion to withdraw could include
potential advisement issues by counsel. Therefore, pursuant to People v. Sanchez (2011)
53 Cal.4th 80, the court conducted a hearing under People v. Marsden (1970) 2 Cal.3d
118, to determine whether defense counsel should be relieved and a new attorney
appointed to investigate defendant’s grounds for withdrawing the plea. After the hearing,
the trial court declined to appoint substitute counsel.
On April 5, 2013, the trial court heard and denied defendant’s motion to withdraw
his guilty plea.
On May 3, 2013, the trial court, in accordance with the plea agreement, sentenced
defendant to 10 years in prison.
On June 28, 2013, defendant filed a timely notice of appeal indicating a challenge
to the validity of the plea and requesting a certificate of probable cause based on the
denial of defendant’s motion to withdraw the guilty plea. On July 3, 2013, the trial court
denied the request for a certificate of probable cause. On October 23, 2013, we approved
a stipulation of the parties that this appeal will be deemed an appeal based on the
sentence or other matters occurring after the plea.
3
II
STATEMENT OF FACTS2
On March 10, 2011, when Jane Doe was 11 years old, she was hanging out at a
park with a female acquaintance and two male subjects. One of the males put his arm
around her neck and pulled her into the girls’ bathroom. There, they were joined by three
additional male subjects. The males took turns holding Jane Doe down and forcing her to
orally copulate them. In addition, two of the males put their penises in her butt. After
that, she was dragged into the boys’ bathroom where she was again forced to orally
copulate three males. There, one male tried to put his penis in her butt and succeeded in
putting his penis in her vagina. In all, Jane Doe stated that she was sodomized four times
total by three different males, and forced to orally copulate five males.
The female companion, who remained outside when Jane Doe was dragged into
the bathroom, identified defendant as being one of the males who entered both of the
bathrooms on March 10, 2011. Defendant made a statement afterwards that he had
“fucked” Jane Doe.
A gang investigator with the Riverside Sheriff’s Department testified that
defendant and the other males involved in the incident were members or associates of the
same gang. The investigator opined that the assault was committed in association with
the gang.
2 Because the trial court made a finding of factual basis for the guilty plea based upon the preliminary hearing testimony, the statement of facts is a summary of that testimony.
4
III
ANALYSIS
After defendant appealed, and upon his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of
the case, a summary of the facts and potential arguable issues, and requesting this court to
undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and he
has done so. On June 4, 2014, defendant filed an eight-page typewritten brief. In his
brief, defendant argues that appellate counsel rendered IAC.
In order to establish a claim of IAC, defendant must demonstrate, “(1) counsel’s
performance was deficient in that it fell below an objective standard of reasonableness
under prevailing professional norms, and (2) counsel’s deficient representation prejudiced
the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings,
defendant would have obtained a more favorable result. [Citations.] A ‘reasonable
probability’ is one that is enough to undermine confidence in the outcome. [Citations.]”
(People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Strickland
v. Washington (1984) 466 U.S. 668; accord, People v. Boyette (2002) 29 Cal.4th 381,
430.) Hence, an IAC claim has two components: deficient performance and prejudice.
(Strickland v. Washington, supra, at pp. 687-688, 693-694; People v. Williams (1997) 16
Cal.4th 153, 214-215; People v. Davis (1995) 10 Cal.4th 463, 503; People v. Ledesma
5
(1987) 43 Cal.3d 171, 217.) If defendant fails to establish either component, his claim
fails.
In this case, defendant appears to be claiming that his appellate counsel’s
performance was deficient because she filed a Wende brief, instead of making substantive
arguments on his behalf. However, in this case, the trial court denied defendant’s request
for a certificate of probable cause. A certificate of probable cause is required for an
appeal challenging the validity of a plea. (People v. Brown (2010) 181 Cal.App.4th 356,
359.) Because defendant has failed to obtain this certificate, he is precluded from
challenging the validity of his plea. (People v. Panizzon (1996) 13 Cal.4th 68, 77-78.)
Therefore, defendant has failed to meet the first component of establishing his IAC claim.
We have examined the entire record and are satisfied that no arguable issues exist,
and that defendant has, by virtue of counsel’s compliance with the Wende procedure and
our review of the record, received adequate and effective appellate review of the
judgment entered against him in this case. (People v. Kelly (2006) 40 Cal.4th 106.)