Filed 10/2/23 P. v. Dixon CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL FRITZ DIXON,

Defendant and Appellant.

F084822

(Super. Ct. No. CRF63790)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Tuolumne County. Kevin M. 

Seibert, Judge.

Jonathan Roberts, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, 

Louis M. Vasquez and Jesica Y. Gonzalez, Deputy Attorneys General, for Plaintiff and 

Respondent.

-ooOoo-

* Before Franson, Acting P. J., Peña, J. and DeSantos, J.
2.

Defendant Michael Fritz Dixon contends on appeal that his sentence should be 

vacated and remanded for resentencing because the trial court did not act with informed 

discretion when it denied probation. The People agree. We vacate defendant’s sentence

and remand for resentencing. In all other respects, we affirm. 

PROCEDURAL SUMMARY

On July 10, 2020, the Tuolumne County District Attorney filed an information

charging defendant with continuous sexual abuse of a child under 14 years of age (Pen.

Code, § 288.5, subd. (a)1; count 1). Defendant was charged in the alternative with

five counts of lewd and lascivious acts upon a child under 14 years of age, occurring 

between November 4, 2012, and September 30, 2014 (§ 288, subd. (a); counts 2–6). 

Prior to trial, the prosecution learned that the incidents charged in counts 4 and 5 related 

to the same incident and count 5 was subsequently dismissed. 

On February 16, 2022, the jury found defendant guilty on count 1. 

On August 5, 2022, the court denied probation and sentenced defendant to a 

mitigated term of six years (the lower term) in state prison. 

On August 18, 2022, defendant filed a notice of appeal. 

FACTS

Jane Doe was born in November 2002 to Frank G.2 and T.T. They also had a son. 

Frank G. and T.T. separated in approximately 2008 when Jane Doe was six years old, and 

Jane Doe and her brother subsequently split time between Frank G. and T.T.’s homes. 

T.T. began dating defendant in 2009, when Jane Doe was eight years old. T.T.

and defendant had a daughter and they eventually married and started living together in 

1 All statutory references are to the Penal Code.

2 Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their 

first names. No disrespect is intended. 
3.

2012. Jane Doe and her brother lived with T.T., defendant, and their half sister

50 percent of the time. 

When Jane Doe was alone with defendant, he would occasionally comment on her

appearance and engage in conversations with her that involved inappropriate topics. He 

would tell her things like, “[I]f I were your age, I would date you” and assure her she was 

“not ugly.” He would also “sexually educate” her by explaining what occurs during 

sexual intercourse. If others were present, he would make jokes about sex, but the 

discussions would not go as far as they did when they were alone. 

When Jane Doe was 10 years old, defendant began touching her inappropriately. 

She testified that the touching occurred approximately 20 to 30 times and continued until

Jane Doe turned 12 years old, with the majority happening when they were driving alone 

in a car together and in Jane Doe’s bedroom or T.T.’s bedroom. 

DISCUSSION

Defendant contends remand is required because the trial court was unaware of its 

discretion when it denied probation and sentenced defendant to the lower term of 

six years in state prison. He argues the court mistakenly believed that granting probation 

would limit defendant’s incarceration to one year in county jail. The People agree, as do 

we. 

A. Background

On March 8, 2022, the probation department submitted its report recommending 

the mitigated term of six years. The report stated defendant was statutorily ineligible for 

probation pursuant to section 1203.066, subdivision (b). 

On March 18, 2022, the trial court asked the prosecution and defense counsel 

whether defendant was eligible for probation, stating, “I’m not saying I’m going to grant 

him probation. I want to make sure before we make the decision that both sides agree 

that this isn’t an offense that he would be eligible for probation on—if the [c]ourt wanted 
4.

to do so.” The prosecution stated defendant could be eligible for probation if an

evaluation pursuant to section 288.1 were completed. Subsequently, the court ordered an 

evaluation under sections 1203.3 and 288.1. 

On May 5, 2022, two correctional counselors found defendant unsuitable for 

probation due to the circumstances of the crime. 

On May 6, 2022, the Department of Corrections and Rehabilitation (CDCR)

submitted a diagnostic study and recommendation under section 1203.03, stating 

defendant was ineligible for probation and recommending a prison term. 

On June 27, 2022, a psychological evaluation under section 288.1 conducted by a 

psychologist with a doctoral degree was submitted, indicating its recommendation 

regarding defendant’s probation status.3 The report stated that defendant was “only a fair 

candidate for a grant of probation.” 

On August 5, 2022, both parties confirmed that they had received the 

psychological evaluation under section 1203.03 and defense counsel asked the trial court 

to consider sentencing defendant to probation based on the report. The court asked 

defense counsel, “When you say he’s a candidate for probation, what are you suggesting 

the [c]ourt do? I’m not saying I’m going to do it. I’m just wondering what your thought 

process is for my understanding the maximum under probation is one year; is that your 

understanding?” Defense counsel responded, “That would be the maximum under 

3 On May 3, 2022, a clinical social worker evaluated defendant under section 288.1 

and found him unsuitable for probation due to his history of violating probation 

conditions, lack of remorse, denial of guilt, and lack of concern for the victim’s 

wellbeing. On June 3, 2022, the trial court determined that the previous evaluation 

ordered under section 288.1 had not been conducted correctly because an evaluation 

under section 288.1 must be completed by a psychiatrist or licensed psychologist who has 

a doctoral degree in psychology but the evaluation was instead submitted by a clinical 

social worker. As a result, the court issued a new order for another evaluation to be 

completed within 90 days. 
5.

probation, yes, [y]our [h]onor, and then a period of probation and I’m fairly certain—” 

The court then asked defense counsel whether she considered one year to be an adequate 

amount of time to be served in custody. Defense counsel argued that it would be 

appropriate. The prosecution argued defendant was convicted of an egregious crime, did 

not accept responsibility, and emphasized the detrimental impact of sexual assault on 

victims. The prosecution also disagreed with the probation report’s recommendation of a 

mitigated term due to defendant’s criminal history and the nature of the crime, and 

argued the middle term was more appropriate. 

The trial court denied probation and imposed the mitigated term, stating, 

“I agree with [the prosecution]. This[c]ourt has unfortunately heard 

far too many cases involving child sexual abuse, and it’s well aware of the 

significant consequences in the lives[] of the victims of these crimes. 

[¶] ... [¶] 

“One year of custody and then probation is clearly not an adequate 

remedy and the [c]ourt is not going to grant probation in this case.

“However, the [c]ourt is going to follow the recommendation of 

[the] [p]robation [office] and sentence him to the mitigated term. The basis 

of the [c]ourt’s ruling on that is consistent with what [the] [p]robation 

[office] indicated, a lack of significant criminal history; there was a 

significant period of time between the acts that resulted in the conviction 

and the conviction itself. During that time there was little or no criminal 

activity, and certainly nothing of the kind of crime that he was convicted of 

here; and the age of ... [d]efendant is also a factor that the [c]ourt is 

considering imposing the mitigating term. 

“Giv[ing] ... [d]efendant the mitigated term does not in any way 

suggest that the [c]ourt thinks that the crime was not serious in nature and 

that the harm done was not significant. [¶] ... [¶] 

“For the crime in [c]ount 1, violation of [s]ection 288.5[,] recurring 

sexual conduct with a person under 14, a felony, will be declared the 

principle term. Probation will be denied. [Defendant] will be committed to 

state prison for the mitigated term of [six] years. [Defendant] will be 

awarded presentence credits[.]” 
6.

B. Law

A trial court’s decision to grant or deny probation is reviewed under the abuse of 

discretion standard. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822.) “A 

sentencing court enjoys broad discretion in determining whether to grant or deny 

probation.” (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1157.) “ ‘The burden is 

on the party attacking the sentence to clearly show that the sentencing decision was 

irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is 

presumed to have acted to achieve legitimate sentencing objectives, and its discretionary 

determination to impose a particular sentence will not be set aside on review.’ ” 

(People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977–978.) 

“ ‘Defendants are entitled to sentencing decisions made in the exercise of the 

“informed discretion” of the sentencing court. [Citations.] A court which is unaware of 

the scope of its discretionary powers can no more exercise that “informed discretion” 

than one whose sentence is or may have been based on misinformation regarding a 

material aspect of a defendant’s record.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 

1391.) If the trial court proceeds on the assumption that it lacks discretion, remand for 

resentencing is required unless the record “ ‘clearly indicate[s]’ ” that the court would 

have reached the same conclusion even if it had been aware of its discretionary powers.

(Ibid.) 

Section 19.2 states, “[i]n no case shall any person sentenced to confinement in a 

county or city jail ... as a condition of probation upon conviction of either a felony or a 

misdemeanor ... be committed for a period in excess of one year ....” (§ 19.2.)4 

4 The trial court did not explicitly refer to section 19.2 when discussing the 

one-year jail term limitation associated with granting probation. However, we agree with 

the parties that section 19.2 is the applicable statute. 
7.

However, the court in People v. Bailey (1983) 140 Cal.App.3d 828 found that 

section 19.2’s one-year statutory restriction can be waived by the defendant because the 

provision was enacted solely for the benefit of the defendant and “ ‘not to satisfy any 

other overriding social, political, or fiscal purpose.’ ” (Id. at p. 831.) Bailey concluded 

that, in cases where one year of incarceration seemed too brief and a prison commitment 

“unduly harsh,” a defendant was entitled to waive the “benefit” of being sent to state 

prison and forego access to prison services so the trial court could at least consider 

whether the defendant merits a grant of probation. (Ibid.) It stated, “we see no legal 

impediment to defendant’s knowing and intelligent waiver of the one-year limitation 

therein on confinement in the county jail. This permits the sentencing court at least to 

consider whether the defendant merits a grant of probation in those cases where a 

one-year term of local confinement seems inappropriately brief and a prison commitment 

unduly harsh.” (Ibid.) However, a “sentencing court is not required to act upon [a] 

defendant’s waiver. It remains within the trial court’s discretion whether the 

circumstances of the case justify a departure from the established one-year limitation on 

county jail commitment.” (Id. at p. 832.) 

C. Analysis

Here, the record shows that the trial court did not exercise its informed discretion 

when it denied defendant probation and sentenced him to six years in prison because it 

was not aware of the option of giving defendant the choice to waive section 19.2’s 

one-year jail term limitation. 

The trial court was operating under the mistaken belief that granting probation 

would limit defendant’s sentence to one year in county jail. At sentencing, the probation 

officer’s report and defense counsel inaccurately confirmed to the court that one year in 

county jail was the maximum term of incarceration available if the court granted 

defendant probation. Accordingly, the court did not consider the possibility that 
8.

defendant could waive the one-year county jail term limit under section 19.2, which 

would have given the court the ability to grant defendant probation and impose a term 

exceeding one year in county jail, but less than the denial of probation and 

six-year mitigated term that it imposed. The record also does not show whether 

defendant would have waived the one-year limit. As the court was unaware of this 

option, it did not present defendant with the opportunity to make that decision. 

Further, the record does not “ ‘clearly indicate[]’ that the trial court would have 

reached the same conclusion ‘even if it had been aware that it had such discretion.’ ” 

(See People v. Gutierrez, supra, 58 Cal.4th at p. 1391.) Here, the court inquired about 

defendant’s eligibility for probation and ordered an evaluation to determine whether he 

was eligible, but stated it was not affirming that it would grant probation. After finding 

defendant was eligible for probation, the court questioned whether a one-year county jail 

commitment “is an adequate amount of time to be served in custody.” After noting the 

victim’s age at the time of the abuse, the fact that defendant was her stepfather, and the 

victim’s testimony about the damage that had been caused to her and her ongoing trauma, 

the court concluded “[o]ne year of custody and then probation is clearly not an adequate 

remedy and the [c]ourt is not going to grant probation in this case.” The prosecution 

argued that the middle term would be the appropriate sentence rather than the mitigated 

term due to the defendant’s criminal history and nature of the crime. Stating it was

following the recommendation of the probation report, the court then imposed the 

mitigated term of six years in state prison. However, the court did not state it would have 

chosen the six-year prison term for defendant had it been aware of its discretion to depart 

from the one-year jail term limitation of section 19.2. (See People v. Bailey, supra,

140 Cal.App.3d at pp. 831–832.)

Accordingly, defendant’s sentence must be vacated and remanded for resentencing

so the trial court may exercise its discretion to grant probation with a jail term exceeding 
9.

one year if defendant waives section 19.2’s one-year jail term limit. (See 

People v. Downey (2000) 82 Cal.App.4th 899, 912 [“Where ... a sentence choice is based 

on an erroneous understanding of the law, the matter must be remanded for an informed 

determination.”].)5

DISPOSITION

We vacate defendant’s sentence and remand for resentencing. In all other 

respects, we affirm the judgment. 

5 Because the People concede that remand for resentencing is required, we need not 

address defendant’s remaining claims.