People v. Dixon
| Decision Date | 03 October 2017 |
| Docket Number | A140051 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ROBERT JOE DIXON, JR., Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. FCR277399)
A jury found defendant Robert Joe Dixon, Jr. guilty of multiple felonies committed over the course of two days, with various firearms enhancements. Defendant seeks review of his judgment of conviction, contending: that the trial court abused its discretion in denying his request to discharge a juror and in denying his motion for a new trial based on juror misconduct; there was insufficient evidence to support his convictions on the second and third counts for first degree murder and premeditated attempted murder, respectively, and also insufficient evidence to convict him of committing both counts simultaneously; the jury instruction on the "kill zone" theory of attempted murder was legally erroneous; and it was a legal error to apply a firearm enhancement on the fifth count. We modify the judgment to strike the referenced firearm enhancement and otherwise affirm the judgment.
We briefly summarize the facts relevant to this appeal for context, providing greater detail as necessary for discussion of specific issues in the next section.
In February 2010, defendant was dating a woman named Denitrice Thomas, who lived in the Parkway Gardens complex in Fairfield. Defendant sold marijuana, and he kept marijuana and money at Thomas's residence. One Friday evening, Thomas was the victim of a home invasion. Three men wearing hoodies broke into Thomas's residence while Thomas was there with two friends and stole various items, including a laptop computer and a video game console. Thomas had more than $1,000 in cash belonging to defendant in her apartment at the time and marijuana. She called defendant right away to tell him about the incident. Defendant responded that he would find out who did it and take care of it.
The following Monday, February 8, 2010, Samuel King was talking on a cell phone, standing with a group of acquaintances in the Parkway Gardens complex, when he saw defendant walking up to him, with another person following. When defendant got within arm's reach of him, King heard a gunshot, and turned to run, but fell instead, and realized he had been shot in the leg. Lying on the ground, King saw defendant was holding a gun. Defendant reached down and searched through King's jacket pockets. King's cousin, Keijona Jackson, was present during this incident, spoke to defendant immediately afterward, and later told police defendant was upset because someone had tried to rob him and take his drugs from Thomas's apartment the night before.1
The next evening, February 9, 2010, Jamal Williams, his cousin Kevin Domino, and Kristopher Battle were outside the Parkway Gardens complex where Williams's grandmother lived, drinking and listening to music. Thomas pulled up in a car withdefendant in the passenger seat, and defendant called Williams over to talk. Defendant asked Williams whether he knew anything about the home invasion, but Williams did not offer any information and suggested defendant might have to pay for information. Defendant reportedly became upset, pulled a gun, began waving it around, and said "I got it for whoever wants it" or words to that effect. Frightened by this behavior and concerned Williams might also have a gun, Thomas drove off.
As Thomas drove, defendant made a telephone call and Thomas heard him say, "These guys know something" and "we got to take care of this." Thomas and defendant then picked up co-defendant Raymon Sellers, and defendant handed Sellers a (second) gun. Shortly afterward, defendant directed Thomas to drive back towards the Parkway Garden complex. On the way, Williams telephoned Thomas, but defendant took the phone, and began arguing with Williams. Eventually, defendant had Thomas pull into a parking lot at one end of the Parkway Garden complex. He and Sellers got out of the car, leaving their hats and other personal items, but carrying the guns, and took off running.
During this period, Williams, Domino, and Battle had remained outside Williams's grandmother's residence. Suddenly, they heard gunshots. Williams was near the door of the residence and dove inside, escaping injury, although one bullet hit a washing machine inside the dwelling. Battle was shot, but managed to run from the scene, and survived. Domino was shot and died at the scene. A firearms expert later confirmed two guns were used in this incident, and one of those guns had been used in the King shooting the previous day.
Although he initially claimed to police he had been elsewhere, defendant eventually acknowledged he had been at the Parkway Gardens complex with Thomas on February 9, and had argued with Williams, and that Williams called Thomas after Thomas and defendant drove away. Defendant denied he returned to the complex the same evening, however, and denied shooting anyone.
On January 6, 2012, the jury convicted defendant on all of the following counts: assault with a firearm on Samuel King (Pen. Code,2 § 245, subd. (a)(2)) (count one); first-degree murder of Kevin Domino (§ 187, subd. (a)) (count two); premeditated attempted murder of Kristopher Battle and Jamal Williams (§§ 187, subd. (a), 664) (counts three and four, respectively); shooting at an inhabited dwelling (§ 246) (count 5); and various firearm enhancements.3 On September 9, 2013, the trial court sentenced defendant to prison for a determinate term of 24 years, four months, on counts one and five, and an indeterminate consecutive term of 110 years to life, plus four life terms with possibility of parole, on the remaining three counts. This timely appeal followed.
Defendant contends the trial court erred in denying his motion to discharge a juror, after the juror witnessed an altercation outside the courthouse between people who had been observing the trial, and that this violated his constitutional right to an impartial jury.
During a recess on the fifth day of the trial, on December 21, 2011,4 the courtroom bailiff heard yelling as he left the building to get coffee and then saw two factions outside—apparently defendant's relatives and relatives of murder victim Domino—engaged in a heated argument. The bailiff reported there was "a slight physical confrontation" between an unknown male relative and the victim's cousin, prosecution witness Jonathan Williams. After the bailiff displayed his weapon, everyone dispersed.A second deputy, who joined the group outside, told five or six people to go home for the day, and directed others to go back inside the courthouse. A third deputy notified dispatch of the incident and called all cover patrol units.
The bailiff immediately notified the trial judge of the incident, and told her one of the jurors—Juror No. 1—had been standing nearby when it happened. The judge met in chambers with all counsel, had the bailiff and the two other deputies state their observations for the record outside the jury's presence, and offered counsel the opportunity to question them, but counsel declined.
The trial judge then questioned each juror and all three alternate jurors individually, out of the presence of other jurors, allowing counsel to ask questions as well. The judge and counsel had the following exchange with Juror No. 1:
At this point, the trial judge conferred with counsel and...
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