1

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

Plaintiff and Respondent,

v.

TYLER ADAM DICKSON,

Defendant and Appellant.

C091152

(Super. Ct. No. P03CRF0136)

OPINION ON TRANSFER

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.
2

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 1172.63in 

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.
3

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.) 
4

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, 
5

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 
6

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. 
7

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 
8

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.