Opinion
B299833
08-12-2020
THE PEOPLE, Plaintiff and Respondent, v. WILLIE TYRONE COOPER, Defendant and Appellant.
Mark R. Feeser, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, and Amanda V. Lopez and David A. Wildman, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. A652569) APPEAL from an order of the Superior Court of Los Angeles County, Connie R. Quinones, Judge. Reversed with directions. Mark R. Feeser, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, and Amanda V. Lopez and David A. Wildman, Deputy Attorneys General for Plaintiff and Respondent.
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INTRODUCTION
Willie Tyrone Cooper appeals from the trial court's order summarily denying his petition for resentencing under Penal Code section 1170.95, a provision of recently enacted Senate Bill No. 1437. Cooper contends, the People concede, and we agree the trial court failed to follow the procedural requirements of section 1170.95, subdivision (c), when the court denied Cooper's petition without appointing counsel and ordering briefing by the parties. We therefore reverse for further proceedings under section 1170.95.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. Cooper's Conviction and Direct Appeal
In 1989 Cooper and two companions robbed a man, after which one of the companions shot and killed him. The People charged Cooper with murder and robbery, alleging in connection with the former that a principal was armed with a firearm in the commission of the murder and the latter that Cooper personally used a firearm and that a principal was armed with a firearm in the commission of the robbery. After a jury convicted Cooper of both crimes and found the allegations true, the trial court sentenced him to a prison term of 26 years to life for the murder and stayed execution of the sentence for the robbery under section 654.
In Cooper's direct appeal, we affirmed the convictions and modified the sentence the trial court imposed (and stayed) for the robbery. Regarding the murder conviction, we observed that "the jury was instructed pursuant to the felony-murder doctrine, in which the underlying felony was the crime of robbery." Rejecting Cooper's contention the felony murder doctrine did not apply, we concluded the trial court's instruction was proper. (People v. Cooper (Dec. 13, 1991, B051303) [nonpub. opn.].)
B. Cooper Petitions Under Section 1170 .95
On September 30, 2018 the Governor signed Senate Bill No. 1437, which became effective on January 1, 2019. (People v. Lamoureux (2019) 42 Cal.App.5th 241, 247-249 (Lamoureux); see People v. Johns (2020) 50 Cal.App.5th 46, 58.) Senate Bill No. 1437 "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).) "In effect, [Senate Bill No.] 1437 is a change to the substantive offense of first and second degree murder, removing the exceptions that had allowed such convictions despite the absence of malice. . . . [Senate Bill No.] 1437 made that change by amending Penal Code sections 188 and 189 to restrict the scope of first degree felony murder and eliminate second degree murder based on the natural and probable consequences doctrine." (Johns, at p. 58; see Lamoureux, at pp. 248-249.) The Legislature also added section 1170.95, which provides a procedure by which those convicted of murder can seek relief if the changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2-4; People v. Prado (2020) 49 Cal.App.5th 480, 489; Lamoureux, at p. 249.)
In January 2019 Cooper petitioned for resentencing under newly enacted section 1170.95. In his petition he declared that he was convicted of first degree murder on a felony murder theory and that he could not be convicted of that offense now because of the changes to sections 188 and 189. He also included the superior court case number and year of his conviction and asked the court to appoint counsel for him.
The trial court denied the petition without appointing counsel for Cooper and without Cooper or the People present. The court stated it had read and considered Cooper's petition, and although the court did not indicate what other documents it may have reviewed, the court referred in its findings to this court's decision affirming Cooper's convictions. The court found Cooper did "not qualify for resentencing" under section 1170.95 for two reasons. First, stating "the jury was instructed that [Cooper] can be found guilty of murder by directly aiding and abetting the shooter in the deliberate, premediated murder or under a natural and probable consequences theory," the court concluded that, "pursuant to . . . section 189, petitioner would still be found guilty with a valid theory of first degree murder." Second, the court concluded the facts of the case demonstrated Cooper "was a major participant in the underlying felony and acted with reckless indifference to human life." Cooper timely appealed.
DISCUSSION
A. Senate Bill No. 1437
To effectuate its amendments to the felony murder rule and the natural and probable consequences doctrine as the latter relates to murder, Senate Bill No. 1437 "'added a crucial limitation' to section 188, the statutory provision that defines malice for purposes of murder. [Citation.] As amended, section 188 provides in pertinent part as follows: 'Except as stated in subdivision (e) of [s]ection 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.'" (Lamoureux, supra, 42 Cal.App.5th at pp. 248-249.)
Section 189, subdivision (e), as amended, in turn "provides that a participant in a specified felony is liable for murder for a death during the commission of the offense 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 . . . ." (Lamoureux, supra, 42 Cal.App.5th at p. 248.)
Senate Bill No. 1437 also added section 1170.95, "which permits an individual convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the conviction and to be resentenced on any remaining counts if he or she could not have been convicted of first or second degree murder because of [Senate Bill No.] 1437's changes to sections 188 and 189. (§ 1170.95, subd. (a).) Section 1170.95 provides a petition for relief must include: '(A) A declaration by the petitioner that he or she is eligible for relief under this section, based on all the requirements of subdivision (a). [¶] (B) The superior court case number and year of the petitioner's conviction. [¶] (C) Whether the petitioner requests the appointment of counsel.' (§ 1170.95, subd. (b)(1).)" (People v. Verdugo (2020) 44 Cal.App.5th 320, 326-327 (Verdugo), review granted Mar. 18, 2020, S260493.)
If any of this required information "is missing and cannot be readily ascertained by the court, 'the court may deny the petition without prejudice to the filing of another petition and advise the petitioner that the matter cannot be considered without the missing information.' (§ 1170.95, subd. (b)(2).)" (Verdugo, supra, 44 Cal.App.5th at p. 327.) If, however, "the petition contains all required information, section 1170.95, subdivision (c), prescribes a two-step process for the court to determine if an order to show cause should issue: 'The 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 . . . and the petitioner may file and serve a reply . . . . 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.'" (Verdugo, at p. 327; see People v. Torres (2020) 46 Cal.App.5th 1168, 1177 ["subdivisions (b) and (c) of [section 1170.95] require the trial court to make three separate determinations"], review granted June 24, 2020, S262011.)
"Once the order to show cause issues, the court must hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts. (§ 1170.95, subd. (d)(1).)" (Verdugo, supra, 44 Cal.App.5th at p. 327.) "At that hearing, the prosecution has the burden of proving beyond a reasonable doubt that the petitioner is ineligible for resentencing. (§ 1170.95, subd. (d)(3).) The prosecutor and petitioner 'may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.'" (People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review granted Mar. 18, 2020, S260598.)
B. The Trial Court Failed To Follow the Procedural Requirements of Section 1170 .95
Cooper contends, the People concede, and we agree the trial court failed to follow the procedural requirements of section 1170.95, subdivision (c), and therefore erred when it summarily denied Cooper's petition without appointing counsel and allowing briefing. As stated, after an initial review to determine "the facial sufficiency of the petition," section 1170.95, subdivision (c) "prescribes two additional court reviews before an order to show cause may issue, one made before any briefing to determine whether the petitioner has made a prima facie showing he or she falls within section 1170.95—that is, that the petitioner may be eligible for relief—and a second after briefing by both sides to determine whether the petitioner has made a prima facie showing he or she is entitled to relief." (Verdugo, supra, 44 Cal.App.5th at pp. 327-328.) The court's role in the first prima facie determination under subdivision (c) "is simply to decide whether the petitioner is ineligible for relief as a matter of law, making all factual inferences in favor of the petitioner." (Verdugo, at p. 329.) To do so, the court may review "documents in the court file or otherwise part of the record of conviction that are readily ascertainable," including an appellate opinion in the case, whether or not published. (Id. at pp. 329, 333.) "[I]f the petitioner's ineligibility for resentencing under section 1170.95 is not established as a matter of law by the record of conviction, the court must direct the prosecutor to file a response to the petition, permit the petitioner (through appointed counsel if requested) to file a reply and then determine, with the benefit of the parties' briefing and analysis, whether the petitioner has made a prima facie showing he or she is entitled to relief." (Id. at p. 330; see id. at p. 332 ["the Legislature intended to create a chronological sequence: first, a prima facie showing; thereafter, appointment of counsel for petitioner; then, briefing by the parties"].)
"[O]ur analysis of the trial court's order focuses on the trial court's interpretation of section 1170.95[, subdivision] (c), and we therefore review its order de novo." (People v. Drayton (2020) 47 Cal.App.5th 965, 981.)
The trial court did not follow the prescribed review process. Cooper's petition was facially sufficient under section 1170.95, subdivision (b). (See People v. Torres, supra, 46 Cal.App.5th at p. 1178 [petition was facially sufficient where it declared the petitioner "was eligible for resentencing under all the requirements listed in section 1170.95, subdivision (a)(1); provided the case name and number; and requested that counsel be appointed"].) Section 1170.95, subdivision (c), therefore required the trial court to determine whether the record of conviction established as a matter of law Cooper was ineligible for resentencing. As the People acknowledge, Cooper's record of conviction does not establish he is ineligible as a matter of law. For example, there was no prior finding Cooper was a major participant in the underlying felony and acted with reckless indifference to human life. Nor does the record support the trial court's statement that Cooper's jury was instructed it could find him guilty of murder on an aiding and abetting or natural and probable consequences theory.
The People do not concede Cooper "is actually eligible for relief" under section 1170.95. In fact, they assert "it is likely [he] is ineligible" because, they suggest, "the evidence shows that he possessed the intent to kill and/or was a major participant in the underlying felony and acted with reckless indifference to human life."
Because the record of conviction does not establish Cooper is ineligible for resentencing as a matter of law, section 1170.95, subdivision (c), required the trial court to appoint counsel for him and order briefing to determine whether Cooper made a prima facie showing he is entitled to relief. (See Verdugo, supra, 44 Cal.App.5th at p. 330.) The People suggest we remand for the trial court to do just that, Cooper agrees, and we think the suggestion is a good one. (See People v. Drayton (2020) 47 Cal.App.5th 965, 968 [reversing an order denying a petition under section 1170.95 and remanding for further proceedings in compliance with the statute where trial court "failed to follow the procedural requirements of the statute"].) Therefore, we reverse the trial court's order summarily denying Cooper's petition and direct the trial court to appoint counsel and order briefing in accordance with section 1170.95, subdivision (c).
DISPOSITION
The trial court's order denying Cooper's petition for resentencing under section 1170.95 is reversed with directions to appoint counsel for Cooper and to conduct further proceedings under that statute.
SEGAL, J. We concur:
PERLUSS, P. J.
FEUER, J.