People v. Dix CA4/1

Filed 2/7/24 P. v. Dix CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D082179

Plaintiff and Respondent,

v. (Super. Ct. No. CR139393)

JOHNNY ARTHUR DIX,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, Felicity Senoski, and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent. MEMORANDUM OPINION Johnny Arthur Dix appeals the order denying his petition for resentencing on his second degree murder conviction under what is now

Penal Code section 1172.6. The trial court denied the petition without holding an evidentiary hearing, finding Dix ineligible for relief. We affirm. As we resolve this case by memorandum opinion, we do not elaborate on factual or procedural background beyond that required for our analysis. (Cal. Stds. Jud. Admin., § 8.1; People v. Garcia (2002) 97 Cal.App.4th 847, 851- 854.) I. Before turning to the merits, we address the People’s opposed request for judicial notice. The People seek judicial notice of (1) the record from the direct appeal in this matter, which consists of the trial reporter’s transcript and clerk’s transcript; and (2) the appellate opinion affirming denial of Dix’s first resentencing petition. As discussed in the next paragraph, we grant the People’s request. The trial court denied Dix’s resentencing petition after reviewing “the extensive record of conviction, the parties’ briefing, and the evidence submitted.” (Italics added.) The record of conviction includes jury instructions, verdict forms, closing arguments, charging documents, and, as appropriate, prior appellate opinions in the case. (People v. Jenkins (2021) 70 Cal.App.5th 924, 935; People v. Lewis (2021) 11 Cal.5th 952, 971-972 (Lewis).) The documents provided by the People therefore encompass the record of conviction. Dix’s speculative claim that the record of conviction “consist[s] only” of the unpublished direct appeal opinion and “does not contain the jury instructions or the closing arguments” lacks merit. First, the trial court would not characterize a 14 page opinion as “extensive.” Second, while Dix cautions us not to “assume[ ] that the trial court reviewed and relied upon records not presented to it by the parties,” the trial court expressly said it “reviewed the extensive record of conviction” in addition to