1 

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NOT TO BE PUBLISHED 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 This opinion has not been certified for publication 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, 

 Plaintiff and Respondent, 

 v. 

ALEXANDER REY DIXON et al., 

 Defendants and Appellants. 

C073800 

(Super. Ct. No. 11F06831) 

 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. 
2 

 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 
3 

serious or violent felony. (§§ 667.5, subd. (c), 1192.7, subd. (c).) The prosecution did 

not plead circumstances in connection with the possession offense to constitute an 

exception to the new limit on a three strikes sentence. While the trial court properly 

sentenced defendants on the assault offense under the three strikes scheme, the trial court 

should have sentenced defendants under the second strike scheme for their respective 

possession offenses (counts two/three). We will remand for resentencing on counts 

two/three. 

II 

 Defendant Dixon contends the trial court abused its discretion in denying his 

request to strike a strike prior. (§ 1385; People v. Superior Court (Romero) (1996) 

13 Cal.4th 497.) We disagree. 

 A trial court has the discretion to strike a strike prior only if the defendant falls 

outside the spirit of the three strikes law. (§ 1385; People v. Williams (1998) 17 Cal.4th 

148, 161 (Williams).) The court “must consider whether, in light of the nature and 

circumstances of his present felonies and prior serious and/or violent felony convictions, 

and the particulars of his background, character, and prospects, the defendant may be 

deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as 

though he had not previously been convicted of one or more serious and/or violent 

felonies.” (Williams, at p. 161.) 

 We will not reverse the ruling on a Romero request for an abuse of discretion 

unless the defendant shows the decision was “so irrational or arbitrary that no reasonable 

person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.) Reversal 

is justified where the trial court was “not ‘aware of its discretion’ ” to strike a strike prior 

or “considered impermissible factors” to support its refusal to do so. (Id. at p. 378.) But 

where the trial court “ ‘balanced the relevant facts and reached an impartial decision in 

conformity with the spirit of the law, we shall affirm the trial court’s ruling . . . ’ 

[citation].” (Ibid.) 
4 

 In denying defendant’s request to strike a strike prior, the trial court noted 

defendant Dixon’s criminal history and found that his record reflected “significant 

criminal conduct that threatened the community” and that defendant Dixon was a “danger 

to the community.” The court opined that defendant Dixon was attempting to kill the 

victim in the current case. 

 Defendant Dixon argues the trial court abused its discretion in denying his request. 

He relies on People v. Bishop (1997) 56 Cal.App.4th 1245 (Bishop), noting that his two 

strike priors occurred in a single incident and, had a strike prior been stricken, he would 

have still served a lengthy sentence. Such reliance is misplaced. Fifty-year-old Bishop 

was convicted of petty theft with a prior theft-related conviction for shoplifting six 

videocassettes. He had three strike priors. Notwithstanding Bishop’s many convictions 

since committing the strike offenses, the trial court dismissed two strike priors, reasoning 

that the strike priors were remote in time (17 to 20 years old), the current offense was 

nonviolent, and a 12-year sentence would keep Bishop in prison for a significant period 

of time. (Id. at pp. 1247-1249, & fns. 1, 3.) Bishop affirmed, commenting: “Bishop is 

not a worthy member of society. . . . While the People and perhaps even this court may 

be of the opinion that Bishop appears undeserving of leniency, the paramount 

consideration is not what the prosecution, defense or appellate court might conclude. 

Rather, what counts is what the trial court in this case concluded, as expressed by the 

reasons it stated under section 1385, subdivision (a). On this record, we cannot say that 

the trial court’s decision to dismiss two of Bishop’s strikes in furtherance of justice 

constituted an abuse of discretion.” (Id. at p. 1251.) 

 Here, the 25-year-old defendant Dixon had been an active gang member since the 

age of 15 years. He was adjudged a ward of the court when he was 17 years of age for 

possession of a concealed firearm, a felony, and was granted probation. Defendant was 

convicted in 2007 of assault with a deadly weapon (§ 245, subd. (a)(1)) with personal use 

of a firearm (§ 12022.5, subd. (a)). The offense was committed for the benefit of the 
5 

gang. (§ 186.22, subd. (b).) The probation report reflected that defendant had flashed a 

gang sign at a nongang acquaintance with whom defendant had had problems. Defendant 

pulled out a gun and fired at the victim as he drove past, striking the trunk of the victim’s 

car. Defendant was sentenced to state prison for an aggregate term of 22 years. Two 

years before, defendant shot at a victim who caught defendant spraying graffiti on a 

public wall. He was convicted of carrying a concealed firearm (former § 12025, subd. 

(b)(1)), committing the offense for the benefit of a gang (§ 186.22, subd. (a)), and was 

sentenced to a four-year term to run concurrently to his 22-year term. Defendant 

admitted to the probation officer that he had a lengthy juvenile record which included 

vandalism at 14 years of age with 36 days in juvenile hall, grand theft auto and domestic 

violence at 15 years of age, and that he had 10 violations of probation for escape from 

placement and theft. While in the Department of Corrections and Rehabilitation since 

2007, defendant had refused a direct order and possessed contraband. The prosecutor 

reported that since the current offense, defendant had twice participated in a riot. 

Defendant began using alcohol and marijuana at the age of 13 years and 

methamphetamine at the age of 14 years. 

 Defendant Dixon is, as the trial court found, a “danger” to society. His criminal 

conduct, including his current offense, in his relatively short life has been extremely 

violent and not remote as in Bishop. The trial court concluded defendant Dixon was not 

deserving of leniency. We do not find any abuse of discretion. 
6 

DISPOSITION 

 The sentences on counts two (Dixon) and three (Nunez) are vacated and the 

matters are remanded to the trial court for resentencing on those counts. In all other 

respects, the judgments are affirmed. 

 BLEASE , Acting P. J. 

We concur: 

 ROBIE , J. 

 BUTZ , J.