Filed 10/7/21 P. v. Dixon CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

SHIMRON SHERWIN DIXON,

Defendant and Appellant.

B306637

Los Angeles County

Super. Ct. No. BA473202

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Stephen A. Marcus, Judge. Affirmed.

Stephen M. Hinkle, under appointment by the Court 

of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, 

Assistant Attorney General, Noah P. Hill and Nima Razfar, 

Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

A jury convicted defendant and appellant Shimron Sherwin

Dixon of the first degree murder of Luis Gonzalez. The jury 

found gun and gang allegations true. On appeal, Dixon contends 

the trial court violated his constitutional rights by (1) excluding 

an officer’s testimony about Dixon’s possible intoxication an 

hour or so before the murder, and (2) imposing a restitution 

fine and court fees without determining his ability to pay them. 

We affirm.

FACTS AND PROCEDURAL BACKGROUND

1. The shooting

As Dixon doesn’t challenge the evidence against him, 

we summarize it only briefly. On the morning of November 5, 

2018, Luis Gonzalez was working at a body shop and tire store 

he owned on Slauson Avenue. Gonzalez’s wife Victoria Rodriguez 

worked with him there. The business had a storage building 

for parts and supplies. That morning, Gonzalez and Rodriguez 

had received a shipment of oil and were unloading it from a car.

Rodriguez heard her husband call out. She looked toward 

the business and saw a person later identified as Dixon in front 

of one wall. Dixon began approaching Gonzalez. Gonzalez asked 

Dixon what he was doing. Gonzalez and Dixon “exchanged 

words” in angry tones for two or three minutes.

Dixon began walking toward a daycare center next door. 

Gonzalez followed him and they started arguing again. Gonzalez 

turned back toward his business. Dixon lifted his sweater and 

pulled out a gun. Rodriguez screamed at her husband to “run 

or do something because he’s going to shoot you.” Dixon shot 

Gonzalez three to five times. Gonzalez “collaps[ed] little by little” 

and Rodriguez ran toward the business to call her brother-in-law.

Filberto Becera had lived on the same block as Gonzalez’s 

shop for 16 or 17 years. Around 10:30 on the morning of 

November 5, 2018 he heard six or seven shots. Becera went 
3

outside to look for his son. He saw Dixon walking slowly 

on the sidewalk. Dixon said, “Loco dude shooting down there. 

Guy’s shooting down there in the corner.” Dixon crossed 

the street, walking slowly and looking back. Becera later 

picked Dixon’s picture out of a photo lineup.

Officers who responded to the scene saw spray painted 

graffiti on a wall of Gonzalez’s business. The graffiti was “RMS.” 

Jurors were shown surveillance video from nearby businesses 

of Dixon spray painting the wall. The video contained audio 

of Dixon asking Gonzalez, “You got a problem?” and then saying, 

“R-M-S Locos. That’s my barrio.”

RMS is a gang. The letters stand for “Reload My Strap,”

“Real Mad Skills,” “Reefer, Money, Sex,” or “Repping My Set.” 

Jurors were shown an Instagram photo of Dixon making a 

gang sign with his hands.

A deputy medical examiner testified Gonzalez had been 

shot seven times, including a shot to the chest that struck various 

organs, caused significant bleeding, and was fatal.

In November 2018 Barbara Bennett was dating Dixon. 

Dixon was living with Bennett and her brother at a house rented

by their mother, Patricia Wyrick. Sometime between 10:00 and 

11:00 a.m. on the morning of November 5, Dixon woke Bennett 

up “in a panic,” “[l]ike freaking out.” Dixon had “an accident 

slip in his hand.” Dixon had taken Bennett’s car—a gray 2013 

Chevy Impala—and wrecked it.

Bennett walked to the scene of the collision where she 

found her parked car. It was totaled. A tow truck towed the car 

back to Bennett’s house. Dixon rode with the tow truck driver 

and Bennett walked. Wyrick demanded Dixon pay the tow 

truck driver. Dixon told the driver he had to go get the money. 

Dixon and the driver left. They were gone about 30 minutes.
4

Wyrick and Bennett walked to a mini-mart where Dixon 

used to work. When they returned to Bennett’s house, Dixon 

was asleep on the porch. Wyrick said “it took a while to wake 

him up.” Bennett and Wyrick told Dixon he had to leave. They

threw Dixon’s belongings out of the house. About 15 minutes 

later, Bennett and Wyrick saw that Dixon and his belongings 

were gone.

Dixon texted Bennett every day. At first the texts said 

he was remorseful and sorry. But after Bennett told Dixon she 

“didn’t want any contact with him anymore,” the texts became 

threats: “I want to kill you. Just threats. Threats after threats. 

I know where you live. . . . I know where your mother lives.” 

Dixon told Bennett he knew what time her brother went to school 

and where the school was. He threatened to “go up to his school 

and shoot him.” Dixon called Bennett about 100 times.

2. The charges, verdicts, and sentence

The People charged Dixon with Gonzalez’s murder. The 

People alleged that Dixon had personally and intentionally used 

and discharged a firearm causing Gonzalez’s death and that he 

had committed the crime for the benefit of a criminal street gang. 

The People also charged Dixon with criminal threats against 

Bennett.

Dixon chose not to testify.

The jury convicted Dixon of first degree murder and found 

the firearm and gang allegations true. The jury acquitted Dixon 

on the criminal threats charge. The court sentenced Dixon to 

50 years to life. The court ordered Dixon to pay a restitution 

fine of $500 under Penal Code section 1202.4, subdivision (b),1

a $40 court security fee under section 1465.8, and a $30 criminal 

1 References to statutes are to the Penal Code.
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conviction assessment under Government Code section 70373. 

The court imposed and stayed a parole revocation restitution fine 

of $500 under section 1202.45. Neither Dixon nor his counsel 

objected to the restitution fine or fees, or asserted any inability 

to pay them.

DISCUSSION

1. The trial court did not abuse its discretion when 

it excluded an officer’s testimony about Dixon’s 

demeanor an hour or so before the shooting

a. Trial testimony about possible intoxication

At trial, defense counsel asked Bennett if Dixon “appear[ed] 

high” when he woke her up that morning. Bennett answered, 

“Yes.” Wyrick also testified that, when she asked Dixon where 

the car was, he “stuttered . . . like he was high.” When the 

prosecutor asked Wyrick how she knew Dixon was high, 

she responded, “I know people that use drugs. I know when 

someone’s high.” Neither attorney asked Bennett or Wyrick 

any more questions on the subject, such as whether Dixon 

used drugs, what kind of drugs he used, or when they’d last 

seen him use.

Officer Andy Procel testified that, around 9:45 a.m. on 

the morning of November 5, 2018, he was at a car wash when 

he heard a traffic collision. One of the motorists involved 

in the collision was Dixon. Procel “approached both vehicles 

to render aid.” Dixon “had a big bulge in his waistband area”;

it turned out to be a spray paint can.

While Procel “[got Dixon’s] information”—“normal

information for a car accident”—his partner called for traffic 

officers. Dixon then moved the car “to a safer location” on 

a nearby corner. The prosecutor asked Procel if he’d searched 

Dixon’s car and Procel said he hadn’t. He explained, “There 

was no reason to at that point. It was just a traffic accident.” 
6

The prosecutor asked, “[D]id anything else about the defendant’s 

demeanor . . . cause[ ] you to do a more serious investigation; 

such as a D.U.I. or drug under the influence [sic] investigation?” 

Procel answered, “No.”

On cross-examination, defense counsel asked Procel 

if “there was a discussion about the person in the car [Dixon] 

being high.” The prosecutor objected. At sidebar, defense counsel 

said, “I wasn’t planning on getting into any of this until” the 

prosecutor elicited testimony about a possible DUI investigation. 

Apparently referring to a dashcam or body-worn recording device, 

counsel said, “I’ve heard this video, they talk about him being 

high and uninsured. There’s some discussion of it.”

The court said, “Here is the problem[.] . . . [A]ssume 

for the moment you’re correct. Why is it relevant? Whether he 

was high or not, it’s an hour before the actual events in this case 

and . . . there’s the danger of the jury misusing any information 

about him being high or not being high. You’re not presenting 

[a voluntary] intoxication [defense].”2

Counsel did not contradict the court or say he was planning 

to present a voluntary intoxication defense. Instead, he said, 

“Because of the way he answered the question about his 

investigation it becomes an issue about his credibility.” 

The court agreed, telling the prosecutor his questioning had 

been “misleading.” The court said it was inclined to exclude 

the line of questioning but would permit counsel to question 

Procel outside the jury’s presence.

2 The reporter’s transcript reads, “You’re not presenting 

involuntary intoxication offense.” It is plain from the context, 

however, that what the court meant was “a voluntary 

intoxication defense.”
7

With the jury on break, defense counsel asked Procel, “Do 

you remember a conversation about the person in the vehicle . . . 

appearing high and uninsured and that’s why he’s freaking out?” 

Procel answered, “I just remember him wanting to go back to 

the vehicle.” Counsel played the recording for the witness, then 

asked, “[D]oes that help refresh your recollection about whether 

he was ‘smoking some shit’ or something to that tune [sic]?” 

Procel responded, “As far as him being high, no. I do remember 

he kept wanting to go back to his vehicle.” Counsel asked, 

“Was that you who said he was ‘smoking some shit’?” Procel 

answered, “Yes, sir.” Counsel asked, “That didn’t concern you 

as to his level of sobriety?” Procel responded, “I just remember 

he was acting strange. He appeared to be more nervous than 

high or anything.”

Defense counsel asked no further questions of Procel during 

the hearing outside the jury’s presence. The court concluded it 

was “not going to go down that road” based on lack of relevance 

as well as consumption of time.

b. The jury instruction conference

On the morning of the last day of testimony, the court 

discussed jury instructions with counsel. The court had given 

counsel a set of proposed instructions the day before. Defense 

counsel asked the court to instruct on voluntary intoxication. 

Counsel said, “I realize . . . the jury did not hear significant 

evidence of voluntary intoxication. Out of an abundance of 

caution, I’d ask the court to give that instruction.” The court 

referred to CALJIC Nos. 4.21.1 and 4.22; counsel confirmed 

those were the instructions he was requesting.

The court stated, “The simple response is there is 

insufficient evidence to support it. I have a number of cases, 

basically, [that say] it’s not sufficient just to say that someone’s 

intoxicated.” The court continued, “You really don’t have 
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much evidence, in that, you have to tie the possible intoxication 

to the defendant’s actual[ ] formation of, or failure to form 

the requisite state [of mind] for the charge of the first degree 

premeditated murder. That’s really specific.”

The court discussed cases it had read: People v. Ivans

(1992) 2 Cal.App.4th 1654, People v. Williams (1988) 45 Cal.3d 

1268, and People v. Rodriguez (1986) 42 Cal.3d 730. The court 

said,

“[Y]ou didn’t go into it in any great detail. 

We had several of the people, Patricia and 

Ms. Bennett[;] they both said that he was high. 

[¶] They didn’t give any idea as to . . . how high 

he was or [how] intoxicated. There was no 

evidence that he actually took any drugs or 

had any drinking [sic]. [¶] We had no testimony 

from the defendant himself explaining . . . 

how the intoxication may have [a]ffected him, 

if he was, in fact, intoxicated. [¶] Even more 

significantly there was no expert called that 

might have provided [testimony] to fill in 

the gap.”

The court observed that “an intoxication instruction is 

not required when the evidence shows that a defendant ingested 

drugs or was drinking, unless evidence also shows he became 

intoxicated to the point he failed to form the requisite intent or 

obtain the requisite mental state.” The court then told defense 

counsel, “You have your record. I assume you’re objecting 

to not giving it—is that right—you’re requesting it and I’m 

denying it?” Counsel responded, “Thank you.”

c. The trial court did not err

Dixon concedes that, “The court correctly denied, based 

on the evidence that had been presented, an instruction on 
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voluntary intoxication.” He also concedes the evidence that 

Bennett and Wyrick found Dixon “passed out” or sleeping 

“does not, obviously, establish that appellant was intoxicated 

at the time of the shooting.”3

Instead, Dixon contends, “The error by the court was 

that the court cut off inquiry into appellant’s level of intoxication 

before the shooting, through examination of Officer Procel.” 

Dixon asserts, “Officer Procel clearly thought appellant was 

intoxicated to at least some degree.” The record belies these 

assertions.

The record on appeal does not include the “video” defense 

counsel said he had listened to when the court discussed the issue 

with counsel at sidebar. It is unclear if the reference to Dixon 

“being high and uninsured” was a conversation between 

the officers, and if the reference to “smoking some shit” also

was an officers’ conversation or a question Procel asked Dixon. 

3 The reporter’s transcript repeatedly misspells “passed” 

as “past.” Bennett first testified she found Dixon “sleeping” 

on her porch. Later, defense counsel asked her, “When you 

got home is that when you described Mr. Dixon’s [passed] out 

in front of the house?” Bennett answered, “Yes.” Defense 

counsel asked, “By ‘[passed] out’ do you mean he is asleep?” 

Bennett again answered, “Yes.”

Wyrick testified that when she and Bennett returned 

from the mini-mart Dixon “was on the porch sleep [sic].” She 

continued, “We tried to wake him up. And it took a while to 

wake him up.” Bennett testified this was around noon, but 

Wyrick testified it was probably about 3:00 p.m. Neither witness 

ever testified Dixon appeared to be unconscious or “passed out” 

from drugs or alcohol. The record does not support Dixon’s 

assertion on appeal that, “There was evidence presented that, 

within an hour or an hour and a half after the shooting, appellant 

was so intoxicated that he passed out.”
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In any event, the court sent the jurors away so defense counsel 

could question Procel further on the issue outside their presence. 

Even after the video was played in an effort to refresh Procel’s 

recollection, he seemed to deny that he had believed Dixon 

was “high”: “As far as him being high, no[;] I do remember he 

kept wanting to go back to his vehicle.” When asked about the 

“smoking some shit” remark, Procel responded, “I just remember 

he was acting strange. He appeared to be more nervous than 

high or anything.” Procel did not arrest Dixon for driving under 

the influence, and he permitted Dixon to go move his car to 

a safer corner. Surely Procel would not have allowed Dixon to 

get back into his car and drive it if he thought he was impaired.

As for his repeated assertions that the trial court “cut 

off questioning” during the hearing, Dixon is mistaken. After 

defense counsel asked Procel if he’d been concerned about Dixon’s 

“level of sobriety” and Procel gave the “acting strange” answer, 

counsel didn’t ask any more questions. The court then 

essentially said its tentative would be the ruling: “I’m not going 

to go down that road.” Counsel never said he had more questions 

on the subject or complained that the court had not allowed him 

to finish his inquiry.

In sum, the court did not abuse its discretion in concluding 

Procel’s testimony—that Dixon seemed more nervous than high, 

and wanted to get back to his car—was not relevant to Procel’s 

credibility4 and would “open[ ] the door to time-consuming 

evidence that [the court didn’t] think [was] that probative.”

4 As the Attorney General notes, defense counsel told the 

court the “high and uninsured” line of questioning was relevant 

to Procel’s credibility; he did not argue it went to Dixon’s ability 

to form the intent to shoot Gonzalez or any voluntary intoxication 

defense.
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2. The trial court did not err in imposing a restitution 

fine and court fees

Citing People v. Dueñas (2019) 30 Cal.App.5th 1157, 

Dixon contends the trial court violated his due process rights 

by imposing a $500 restitution fine and court fees without 

making a determination that he had the ability to pay them. 

Dixon was sentenced 18 months after Dueñas was decided yet 

he didn’t cite that case or challenge the imposition of the fine 

and fees. Indeed, after listing the fine and fees, the trial court 

asked defense counsel, “Mr. Sadr, anything you want to say or 

that you want to discuss?” Counsel answered, “No, Your Honor.”

Moreover, even before Dueñas was issued, section 1202.4, 

subdivision (d) provided that inability to pay could be considered 

if the restitution fine imposed exceeded the statutory minimum. 

(§ 1202.4, subd. (d).) Because the $500 fine imposed was 

above the minimum of $300, Dixon had a statutory right to 

an ability-to-pay determination at sentencing. Yet neither he 

nor his counsel objected, asserted he was indigent, or requested 

an ability-to-pay determination. 

As a general matter, the failure to raise an argument in 

the lower court forfeits the argument the ruling was erroneous. 

(See People v. Trujillo (2015) 60 Cal.4th 850, 856 [constitutional 

right may be forfeited in criminal as well as civil cases by the 

failure to make timely assertion of the right before a tribunal 

having jurisdiction to determine it].) By failing to raise this 

issue below, Dixon forfeited the argument that the court erred 

by not considering his ability to pay. (See People v. Miracle

(2018) 6 Cal.5th 318, 355-356 [by not objecting to restitution 

fines above the statutory minimum at sentencing hearing, 

defendant forfeited any challenge]; People v. Gamache (2010) 

48 Cal.4th 347, 409 [same]; People v. Avila (2009) 46 Cal.4th 680, 

728-729 [same].)
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Finally, the trial court’s imposition of the fine and fees 

is not an “unauthorized sentence,” as Dixon contends. (See 

People v. Jinkins (2020) 58 Cal.App.5th 707, 713.) Nor has Dixon 

demonstrated that his counsel was constitutionally ineffective 

in not objecting to the fine and fees. The record does not 

establish Dixon was indigent and unable to pay, nor has he 

shown a reasonable possibility of prejudice. Claims of ineffective 

assistance usually must be raised in a petition for a writ of 

habeas corpus, where relevant facts and circumstances not 

reflected in the record on appeal can be brought to light to 

inform the inquiry. (People v. Snow (2003) 30 Cal.4th 43, 111.) 

“[R]arely will an appellate record establish ineffective assistance 

of counsel.” (People v. Thompson (2010) 49 Cal.4th 79, 122.) 

This is not that rare appellate record.
13

DISPOSITION

We affirm Shimron Sherwin Dixon’s judgment of 

conviction.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

LAVIN, Acting P. J.

HILL, J.

 Judge of the Santa Barbara Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.