People v. Dickson CA3

Filed 1/6/23 P. v. Dickson CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(El Dorado)
----
THE PEOPLE, C091152
Plaintiff and Respondent, (Super. Ct. No. P03CRF0136)
v. OPINION ON TRANSFER
TYLER ADAM DICKSON,
Defendant and Appellant.
In 2006, a jury found defendant Tyler Adam Dickson guilty of first degree murder
with a special circumstance that he had been engaged in robbery and burglary (Pen.
Code, §§ 187, subd. (a), 190.2, subd. (a)(17)(A) & (G))1 and found true the allegation
that the principal in the offense, codefendant Sean Alan O’Brien, was armed with a
firearm during the commission of the crime. (§ 12022, subd. (a)(1).) The jury also found
1 Undesignated statutory references are to the Penal Code.
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true that O’Brien had intentionally discharged a firearm causing great bodily injury
within the meaning of section 12022.53, subdivisions (b), (c), and (d). Thereafter,
defendant was sentenced to 25 years to life, plus one year for the firearm enhancement.
We reversed the robbery special circumstances finding as to both defendants based on
instructional error, but otherwise affirmed the judgment in People v. O’Brien et al. (Aug.
4, 2008, C054011, C054462) (nonpub. opn.) (O’Brien).2
On January 31, 2019, defendant sought resentencing pursuant to section 1172.63 in
light of changes brought about by Senate Bill No. 1437 (2017-2018 Reg. Sess.), which
“ ‘amend[ed] the felony murder rule and the natural and probable consequences doctrine,
as it relates to murder, to ensure that murder liability is not imposed on a person who is
not the actual killer, did not act with the intent to kill, or was not a major participant in
the underlying felony who acted with reckless indifference to human life.’ (Stats. 2018,
ch. 1015, § 1, subd. (f).)” (People v. Verdugo (2020) 44 Cal.App.5th 320, 325,
disapproved on another ground in People v. Lewis (2021) 11 Cal.5th 952, 961-962.) The
trial court denied the petition, finding defendant was barred from relief because he was a
major participant in the burglary who acted with reckless indifference to human life.
Defendant appeals the denial of the petition, arguing that under People v. Banks
(2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 the evidence is legally
insufficient to prove he was a major participant who acted with reckless indifference to
human life, and thus, the trial court erroneously denied his petition.
2 We granted defendant’s request to incorporate by reference case Nos. C054011, People
v. O’Brien, and C054462, People v. Dickson.
3 Defendant filed his petition under former section 1170.95. The Legislature later
amended and renumbered that provision to section 1172.6. (Stats. 2022, ch. 58, § 10;
Stats. 2021, ch. 551, § 2.) Citations in this opinion are to the current version of the
provision as codified in section 1172.6.
2
In an unpublished opinion filed August 12, 2021, we affirmed the trial court’s
order denying defendant’s petition for resentencing on the ground that the jury’s special
circumstance finding rendered defendant ineligible for relief under section 1172.6. The
Supreme Court granted review and transferred the matter back to us with directions to
vacate our decision and reconsider the cause in light of its recent opinion in People v.
Strong (2022) 13 Cal.5th 698 (Strong).
In his supplemental brief on transfer, defendant urges us to vacate his murder
conviction, arguing the evidence presented at his trial is no longer sufficient to support a
murder conviction. The People contend the trial court’s order denying defendant’s
petition should be reversed and this matter should be remanded to the trial court for
further proceedings.
After reconsidering the matter, we will vacate the trial court’s order and remand
the matter to the trial court for further proceedings under section 1172.6, subdivision (d).
FACTUAL AND PROCEDURAL BACKGROUND
I. Statement of Facts
The relevant facts are taken from our unpublished opinion, O’Brien.4 In February
2003, O’Brien asked defendant to help him steal some dirt bikes and marijuana from a
specific house. Defendant and O’Brien were 17 and 16 years old, respectively.
Defendant agreed and asked his friend, 20-year-old William Wellman to join them. The
following day, the three of them got into defendant’s truck. O’Brien brought a shotgun in
a blanket and, at O’Brien’s request, defendant drove them to a gun shop where they
bought shotgun shells. Defendant then drove them to the targeted house. On the way to
the house, O’Brien said that if anyone was home, he was going to blow them away.
4 We provide this summary of facts from the prior opinion in defendant’s direct appeal
solely for context and do not rely on these facts for our analysis or disposition. (See Cal.
Rules of Court, rule 8.1115.)
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They entered the house thinking no one was home. When the victim appeared
with a gun, defendant and Wellman ran back to the truck. O’Brien shot the victim.
O’Brien then ran out to defendant and Wellman, yelling, “ ‘He’s dead.’ ” (O’Brien,
supra, C054011, C054462 [p. 5].) The trio went back into the house, where they took
marijuana and cash. They then drove away together and threw the victim’s rifle into a
pond on their way home.
II. Procedural History
Defendant’s section 1172.6 petition for resentencing contained a declaration
stating that (1) an information was filed against him that allowed the prosecution to
proceed under a felony murder or natural and probable consequences theory, (2) he was
convicted of first degree murder by jury pursuant to the felony-murder rule and/or the
natural and probable consequences doctrine, and (3) he could not now be convicted of
murder because of the changes made to sections 188 and 189, effective January 1, 2019.
Defendant also declared he was not a major participant who acted with reckless
indifference to human life during the course of the crime.
In his petition, defendant argued that the jury’s special circumstances finding is no
longer supported by substantial evidence in light of Banks and Clark, in which the court
construed “major participant” and “reckless indifference to human life” in a manner that
differed from earlier constructions of the term. The People opposed the petition, arguing
that defendant was barred from relief because he was a major participant acting with
reckless indifference to human life, and that section 1172.6 was unconstitutional.
Defendant’s appointed counsel reiterated on reply that defendant made a prima facie
showing for relief because the jury’s special circumstances finding is no longer supported
by sufficient evidence after Banks and Clark.
The trial court held a hearing on defendant’s prima facie entitlement to relief.
After reviewing the record, the trial court found beyond a reasonable doubt that defendant
was a major participant in the crime who acted with reckless indifference to human life,
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and was therefore ineligible for relief under section 1172.6. Because the trial court
denied the petition on its merits, it declined to address the constitutionality of the statute.
DISCUSSION
I. Senate Bill No. 1437
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on January
1, 2019, was enacted “to amend the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with the intent to kill, or was
not a major participant in the underlying felony who acted with reckless indifference to
human life.” (Stats. 2018, ch. 1015, § 1(f).) The legislation accomplished this by
amending sections 188 and 189 and adding former section 1170.95, now section 1172.6,
to the Penal Code.
Section 188, which defines malice, now provides in part: “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime
shall act with malice aforethought. Malice shall not be imputed to a person based solely
on his or her participation in a crime.” (§ 188, subd. (a)(3).) Section 189, subdivision (e)
now limits the circumstances under which a person may be convicted of felony murder:
“A participant in the perpetration or attempted perpetration of a felony listed in
subdivision (a) [(defining first degree murder)] in which a death occurs is liable for
murder only if one of the following is proven: [¶] (1) The person was the actual killer.
[¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] (3) The person was a major participant in
the underlying felony and acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2.”
Senate Bill No. 1437 also added former section 1170.95, now section 1172.6,
which allows those “convicted of felony murder or murder under the natural and probable
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consequences doctrine . . . [to] file a petition with the court that sentenced the petitioner
to have the petitioner’s murder . . . conviction vacated and to be resentenced on any
remaining counts when all of the following conditions apply: [¶] (1) A complaint,
information, or indictment was filed against the petitioner that allowed the prosecution to
proceed under a theory of felony murder [or] murder under the natural and probable
consequences doctrine . . . . [¶] (2) The petitioner was convicted of murder . . . following
a trial . . . . [¶] (3) The petitioner could not presently be convicted of murder . . . because
of changes to [s]ection 188 or 189 made effective January 1, 2019.” (§ 1172.6, subd.
(a).)
Once a complete petition is filed and the parties have had an opportunity to submit
briefings, “the court shall hold a hearing to determine whether the petitioner has made a
prima facie case for relief. If the petitioner makes a prima facie showing that the
petitioner is entitled to relief, the court shall issue an order to show cause.” (§ 1172.6,
subd. (c).) Following the order to show cause, the trial court must hold an evidentiary
hearing to determine whether to vacate the murder conviction. (§ 1172.6, subd. (d).) At
the evidentiary hearing, the People bear the burden to prove, beyond a reasonable doubt,
that the petitioner is guilty of murder under the amended law. (§ 1172.6, subd. (d).)
II. Analysis
Defendant argues the trial court erred when it denied the petition on the ground
that defendant was a major participant in the murder who acted with reckless indifference
to human life. Specifically, he contends that under Banks and Clark, which were issued
after defendant’s conviction and which clarified and narrowed the definitions of “major
participant” and “reckless indifference to human life,” the trial evidence is now
insufficient to prove defendant was a major participant who acted with reckless
indifference to human life. Thus, defendant argues he is entitled to have his murder
conviction vacated. Based on the Supreme Court’s opinion in Strong, we now conclude
the trial court erred in denying defendant’s petition at the prima facie stage.
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In Strong, supra, 13 Cal.5th at page 710, our Supreme Court concluded “[f]indings
issued by a jury before Banks and Clark do not preclude a defendant from making out a
prima facie case for relief under Senate Bill 1437.” The Supreme Court held a trial court
cannot “reject a petition at the prima facie stage if it independently examines the record
and determines, applying the Banks and Clark standards, that sufficient evidence supports
the earlier findings.” (Id. at p. 719.) This is because, in the wake of Banks and Clark,
much about the trial environment has changed. (Ibid.) These changes included “the
arguments available to counsel,” the “evidence defense counsel would have sought to
introduce,” “trial strategies,” and the availability of “optional additional instruction on the
Banks and Clark factors . . . with the possibility that different outcomes might have
resulted.” (Id. at pp. 719-720.) “An after-the-fact court review of a pre-Banks and Clark
record does not account for all these differences.” (Id. at p. 720.) And “such a
determination would entail factfinding prohibited at the prima facie stage.” (Ibid.)
Here, defendant’s petition claimed that he was prosecuted for and convicted of
murder under the felony-murder rule or the natural and probable consequences theory,
and that he could not now be convicted of murder because of the changes made to
sections 188 and 189. He also declared he was not a major participant who acted with
reckless indifference to human life during the course of the crime. Accepting these
allegations as true, defendant would be entitled to relief.
In denying defendant’s petition, the trial court conducted an independent review of
the record, concluding beyond a reasonable doubt that defendant was a major participant
in the underlying felony and acted with reckless indifference to human life. But the
beyond a reasonable doubt standard applies at the evidentiary hearing, not at the prima
facie stage. Moreover, under Strong, a trial court can no longer reject a petition at the
prima facie stage based on its review of the record and applying the Banks and Clark
factors. Nor does the jury’s special circumstances finding make defendant ineligible for
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relief at this stage. Following Strong, defendant’s allegations in his petition now
establish a prima facie showing of his entitlement to relief.
Defendant, however, asks us to vacate his murder conviction because it is no
longer supported by sufficient evidence under Banks/Clark. But a court cannot engage in
factfinding involving the weighing of evidence or the exercise of discretion in a prima
facie inquiry under section 1172.6, subdivision (c). (People v. Lewis, supra, 11 Cal.5th at
p. 972.) We therefore reject defendant’s request.
DISPOSITION
The order denying relief is vacated and the matter is remanded for further
proceedings. The trial court is directed to issue an order to show cause and hold an
evidentiary hearing to determine defendant’s eligibility for relief.
/s/
HOCH, J.*
We concur:
/s/
DUARTE, Acting P. J.
/s/
BOULWARE EURIE, J.
* Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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