Opinion
C091152
08-12-2021
THE PEOPLE, Plaintiff and Respondent, v. TYLER ADAM DICKSON, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. P03CRF0136
HOCH, J.
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)) 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 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).
Undesignated statutory references are to the Penal Code.
We granted defendant's request to incorporate by reference case Nos. C054011, People v. O'Brien, and C054462, People v. Dickson.
On January 31, 2019, defendant sought resentencing pursuant to section 1170.95 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, review granted Mar. 18, 2020, S260493.) The People opposed the petition. The trial court appointed a public defender, who filed a response on defendant's behalf. On December 9, 2019, 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. We conclude the evidence is sufficient and affirm the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Statement of Facts
The relevant facts are taken from our unpublished opinion, O'Brien. 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.
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 1170.95 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. Specifically relevant here, 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 concedes that the jury necessarily found he was a major participant who acted with reckless indifference to human life when it found that the victim was killed in the course of burglary (special circumstances), which was affirmed on appeal. However, his petition 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 1170.95 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.
On appeal, we vacated the jury's special circumstances conviction as to the robbery but not the burglary. Thus, we held that “[b]ecause we can determine that the verdict rested on at least one correct theory, the trial court's failure to instruct on the elements of robbery is of no consequence to the murder charge.” (O'Brien, supra, C054011, C054462 [p. 77].)
The trial court held a hearing on the petition, where it found that defendant was barred from relief under section 1170.95 because he was a major participant in the crime who acted with reckless indifference to human life. Because the trial court denied the petition on its merits, it declined to address the constitutionality of the statute.
We are aware of the Supreme Court's recent opinion in People v. Lewis (July 26, 2021, S260598) ___ Cal.5th ___ addressing the appropriate stage in section 1170.95 proceedings for appointment of counsel. This is not an issue in this case because the trial court appointed counsel for defendant, the parties briefed the petition, and the trial court held a hearing to determine whether defendant made a prima facie case for relief.
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, subd. (f).) The legislation accomplished this by amending sections 188 and 189 and adding section 1170.95 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 section 1170.95, which allows those “convicted of felony murder or murder under a natural and probable consequences theory [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 first degree or second degree murder following a trial.... [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to [s]ection 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)
Once a complete petition is filed, “[t]he court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor response is served.... If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause.” (§ 1170.95, subd. (c).)
II. Special Circumstances
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 not barred from relief and is entitled to have his petition granted.
The People counter that because the jury found true the burglary special circumstances, defendant is barred from section 1170.95 relief, but rather defendant must seek relief by way of a habeas corpus petition. The People acknowledge courts are split on the question of whether a defendant may properly challenge a pre-Banks/Clark special circumstances finding through a section 1170.95 petition. However, they argue the cases concluding that a defendant must do so exclusively through a writ of habeas corpus, rather than a section 1170.95 petition, are correctly decided. On reply, defendant argues that we should follow the cases concluding that a defendant may challenge the jury's pre-Banks/Clark special circumstances finding through a section 1170.95 petition.
As the parties acknowledge, a split has developed regarding whether section 1170.95 is a proper vehicle for defendants to challenge a jury's special circumstances finding, and therefore, their convictions based on the narrowed constructions of “major participant” and “reckless indifference to human life” set forth in Banks and Clark. (Compare People v. Gomez (2020) 52 Cal.App.5th 1, review granted Oct. 14, 2020, S264033, People v. Galvan (2020) 52 Cal.App.5th 1134, review granted Oct. 14, 2020, S264284; People v. Murillo (2020) 54 Cal.App.5th 160, review granted Nov. 18, 2020, S264978 [defendant barred from § 1170.95 relief because of jury's special circumstances finding, but defendant may challenge conviction through writ of habeas corpus], with People v. Torres (2020) 46 Cal.App.5th 1168, review granted June 24, 2020, S262011 (Torres); People v. York (2020) 54 Cal.App.5th 250, review granted Nov. 18, 2020, S264954; People v. Smith (2020) 49 Cal.App.5th 85, review granted July 22, 2020, S262835 [a jury's pre-Banks and Clark special circumstances finding does not preclude defendant from § 1170.95 relief]; see also People v. Allison (2020) 55 Cal.App.5th 449 [criticizing York]; People v. Jones (2020) 56 Cal.App.5th 474 [following Gomez, Galvan, & Allison], review granted Jan. 27, 2021, S265854; People v. Nunez (2020) 57 Cal.App.5th 78 [following Allison, Gomez, Galvan, & Murillo], review granted Jan. 13, 2021, S265918.)
In Banks and Clark, the court construed “major participant” and “reckless indifference to human life” in a manner that differed from earlier constructions of the term. According to Torres, supra, 46 Cal.App.5th 1168, review granted, a case relied on by defendant in his reply, in light of the Supreme Court's opinions, we “cannot simply defer to the jury's pre-Banks and Clark factual findings that [defendant] was a major participant who acted with reckless indifference to human life as those terms were interpreted at the time.” (Id. at p. 1179.)
Further, according to People v. Smith, supra, 49 Cal.App.5th 85, review granted, another case cited by defendant, “Section 1170.95 provides ‘the petitioner may rely on the record of conviction or offer new or additional evidence to meet [his] burden[].' (§ 1170, subd. (d)(3).) It is conceivable that [defendant] may be able to provide evidence not presented at trial that would demonstrate either that he was not a major participant in the robbery or did not act with reckless indifference to human life. By ruling prior to the appointment of counsel, the trial court deprived [defendant] of the opportunity to develop, with the aid of counsel, a factual record beyond the record of conviction.” (Id. at p. 95, fn. omitted.)
We disagree with Torres and Smith “because, in our view, they rest on a misunderstanding of the effect of Banks and Clark, and they overlook the plain language of section 1170.95.” (People v. Jones, supra, 56 Cal.App.5th at p. 483, review granted.) The Banks and Clark decisions did not pronounce new standards for the determination of “major participant” and “reckless indifference.” The pattern jury instructions that guide juries in determining felony-murder special circumstances remain the same. The facts determined by defendant's jury are the same as the facts that would be determined by a jury today.
Section 1170.95 expressly limits evidentiary hearings to circumstances where a petitioner can demonstrate they “could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(3), italics added.) “[T]here is no basis to conclude as a general matter that a pre-Banks and Clark jury was instructed differently than a post-Banks and Clark jury, or resolved different factual issues, answered different questions, or applied different standards. The mandatory instructions did not change, and the pre-Banks and Clark jury necessarily resolved the same factual issues beyond a reasonable doubt that a post-Banks and Clark jury would necessarily resolve beyond a reasonable doubt. [¶] Of course, jury findings in a final judgment are generally considered to be valid and binding unless and until they are overturned by collateral attack.” (People v. Nunez, supra, 57 Cal.App.5th at p. 94, review granted.)
Like the defendant in Jones, defendant here is not seeking relief “because of” the changes to section 189 that provide a basis for challenging his murder conviction but because of purported changes in the law wrought by Banks and Clark that provide a basis for challenging his special circumstance finding. (See also People v. Allison, supra, 55 Cal.App.5th at p. 458, review granted.) The appropriate vehicle for asserting a challenge to the special circumstances finding is not a petition under section 1170.95. Section 1170.95 does not permit a court to ignore express findings of a jury or to supplant them with new findings based on evidence provided at a hearing where the People would again have the burden of persuasion beyond a reasonable doubt. If defendant believes the jury finding lacks evidentiary support, the appropriate procedure for challenging it is by a petition for habeas corpus. “When a defendant seeks habeas corpus relief, the underlying judgment is presumed valid. [Citations.] In a habeas corpus challenge to the sufficiency of the evidence to support a special circumstance finding, the ‘standard of review... is whether, when evidence that is reasonable, credible, and of solid value is viewed “in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the allegation beyond a reasonable doubt.”' ” (In re Bennett (2018) 26 Cal.App.5th 1002, 1018, quoting People v. Clark, supra, 63 Cal.4th at p. 610.) A petitioner who challenges a pre-Banks/Clark finding on habeas must establish that the record contains insufficient evidence to support a conclusion they acted as a major participant or with reckless indifference to human life. (People v. Duvall (1995) 9 Cal.4th 464, 474.)
Though we recognize the split in appellate decisions on this issue, we conclude the better analysis is set forth in Galvan, Gomez, Allison, Jones, Nunez, and other cases that disagree with Smith and Torres. Accordingly, we conclude that defendant's special circumstance finding renders him ineligible for relief under section 1170.95 as a matter of law.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RAYE P. J., BLEASE, J.