Opinion
B301551
10-23-2020
THE PEOPLE, Plaintiff and Respondent, v. CORY COOPER, Defendant and Appellant.
Mark D. Lenenberg, 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, Assistant Attorney General, Michael R. Johnsen, Deputy Attorney General, and Charles S. Lee, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SA034049) APPEAL from an order of the Superior Court of Los Angeles County, Lauren Weis Birnstein, Judge. Affirmed. Mark D. Lenenberg, 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, Assistant Attorney General, Michael R. Johnsen, Deputy Attorney General, and Charles S. Lee, Deputy Attorney General, for Plaintiff and Respondent.
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Cory Cooper (defendant) appeals the trial court's summary denial of his motion for relief under Penal Code section 1170.95. We conclude there was no error, and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
We draw these facts from our prior, unpublished appellate opinion affirming defendant's conviction. (People v. Cooper (May 21, 2001, B143197) [nonpub. opn.].) --------
A. The underlying crime
By 2001, defendant had been married to his wife, Kim, for approximately 14 years. Both while they dated and during their marriage, Kim suffered head injuries and reported that defendant had inflicted them. Their marriage ended on October 18, 1998, when Kim died in the couple's residence as a result of severe blunt force trauma to her head. She also had several contusions to her face and scalp consistent with being punched by fists.
B. Prosecution , conviction and appeal
The People charged defendant with Kim's murder (§ 187, subd. (a)).
The matter proceeded to a bench trial. Although defendant had reported to police that Kim's fatal injuries were caused by "three Mexican teenagers" who had mugged her, defendant testified at trial that Kim suffered her fatal injuries because she fell and hit her head after he slapped her face two or three times.
The trial court found defendant guilty of second degree murder based on its finding that he "intentionally beat Kim brutally with conscious disregard that the beating endangered her life." The trial court sentenced defendant to prison for 15 years to life.
Defendant appealed his conviction and we affirmed in an unpublished opinion.
II. Procedural Background
On January 8, 2019, defendant filed a petition seeking resentencing under section 1170.95. In the form petition, defendant checked the boxes for the allegations that he had been charged with murder, that he was convicted "pursuant to the felony murder rule or the natural and probable consequences doctrine," and that his murder conviction would be invalid under the "changes made to Penal Code §§ 188 and 189, effective January 1, 2019." He also requested the appointment of counsel.
The People filed a response, arguing solely that section 1170.95 was unconstitutional. The trial court appointed counsel for defendant, and subsequently issued an order summarily denying defendant's petition. Based on the "facts as set forth" in the prior appellate opinion that showed that defendant's second degree murder conviction rested on his acts as "the actual killer," the court determined that he was "ineligible for relief under" section 1170.95.
After we issued an order granting relief from default for the failure to file a timely notice of appeal, defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in summarily denying his section 1170.95 petition. Because the resolution of this argument turns on questions of statutory construction and the application of law to undisputed facts, our review is de novo. (People v. Blackburn (2015) 61 Cal.4th 1113, 1123; Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018.)
A person filing a petition under section 1170.95 is entitled to the appointment of counsel, the opportunity for further briefing and a hearing if, in his petition, he "makes a prima facie showing that he . . . is entitled to relief" under that section. (§ 1170.95, subds. (c) & (d); People v. Lewis (2020) 43 Cal.App.5th 1128, 1139-1140, review granted Mar. 18, 2020, S260598 (Lewis); People v. Verdugo (2020) 44 Cal.App.5th 320, 330, review granted Mar. 18, 2020, S260493 (Verdugo).) A person is entitled to relief under section 1170.95 if, as relevant here, (1) "[a] complaint, information, or indictment was filed against [him] that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine," (2) he "was convicted of . . . second degree murder following a trial," and (3) he "could not be convicted of . . . second degree murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1170.95, subd. (a).) A person may be convicted of murder, even after the 2019 changes to sections 188 and 189, if he "was the actual killer." (§ 189, subd. (e)(1).) A "'prima facie showing is one that is sufficient to support the position of the party in question.'" (Lewis, at p. 1137, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.)
Where a defendant in his petition alleges each element necessary to make out a prima facie case for relief under section 1170.95, a trial court evaluating whether a defendant has made a prima facie showing in a section 1170.95 petition is not required to accept those allegations at face value and may also examine the record of conviction. (Lewis, supra, 43 Cal.App.5th at p. 1138; Verdugo, supra, 44 Cal.App.5th at pp. 329-330; People v. Tarkington (2020) 49 Cal.App.5th 892, 899-900, 908-909, review granted Aug. 12, 2020, S263219 (Tarkington); People v. Drayton (2020) 47 Cal.App.5th 965, 968 (Drayton); People v. Edwards (2020) 48 Cal.App.5th 666, 673-674, review granted July 8, 2020, S26481 (Edwards); People v. Torres (2020) 46 Cal.App.5th 1168, 1178, review granted June 24, 2020, S262011 (Torres).) However, the contents of the record of conviction defeat a defendant's prima facie showing only when the record "show[s] as a matter of law that the petitioner is not eligible for relief." (Lewis, at p. 1138, italics added; Verdugo, at p. 333; Torres, at p. 1177; Drayton, at p. 968; see also People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410 (Cornelius) [record must show defendant is "indisputably ineligible for relief"].)
Here, the trial court correctly concluded that defendant did not make out a prima facie case for relief because the record of conviction establishes, as a matter of law, that he is not eligible for relief. That is because the trial court who sat as the trier of fact found defendant guilty of second degree murder as the person who "intentionally beat Kim brutally with conscious disregard that the beating endangered her life." This finding of fact necessarily labels defendant as the "actual killer" and hence ineligible for relief under section 1170.95. (E.g., Cornelius, supra, 44 Cal.App.5th at p. 58 [so holding]; Tarkington, supra, 49 Cal.App.5th at pp. 899, 910 [same].)
Defendant resists this conclusion with what boil down to two arguments.
First, he argues that a trial court evaluating whether a defendant has made out a prima facie showing in his section 1170.95 petition should be limited to "the four corners" of the petition because going "behind the allegations" (1) amounts to an impermissible ruling on the merits of the petition that improperly views the facts in the light most favorable to the murder conviction and improperly shifts the burden of proof to the petitioner, and (2) conflicts with one document in the legislative history of section 1170.95 because that document, in listing the steps for evaluating a section 1170.95, makes no mention of summary denial based on the record of conviction. At bottom, and as he acknowledges, defendant is arguing that Lewis, Verdugo, Cornelius, Drayton, Edwards, Torres and Tarkington are "wrongly decided." Although our Supreme Court has granted review in these cases, we continue to find them persuasive unless and until the Supreme Court rules otherwise.
Second, defendant argues that the trial court exceeded the bounds of proper judicial notice and violated the hearsay rule by considering the facts set forth in our prior appellate opinion. We need not confront the totality of this argument because the summary denial of defendant's section 1170.95 petition in this case turns on the trial court's use of a single fact from the prior opinion—namely, the prior opinion's recitation of the basis for the trial court's ruling that, as the trier of fact, defendant was guilty of second degree murder because he "intentionally beat Kim brutally with conscious disregard that the beating endangered her life." That fact is a proper subject of judicial notice as an "accurate[]" "reflect[ion of] what is in the trial record" and is properly admitted for "the nonhearsay purpose of determining the basis of the conviction." (People v. Woodell (1998) 17 Cal.4th 448, 456-457, 459-461; Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885 ["an appellate opinion can be admitted to prove th[at] . . . the court made orders, factual findings, judgments and conclusions of law."]; People v. Franklin (2016) 63 Cal.4th 261, 280 [same]; Kilroy v. State of California (2004) 119 Cal.App.4th 140, 147 ["findings of fact" may be judicially noticed]; Sosinky v. Grant (1992) 6 Cal.App.4th 1548, 1565 ["it may be proper to take judicial notice that [a trial judge] did in fact make [a] particular finding" of fact "after hearing a factual dispute"], italics omitted.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, P. J.
LUI /s/_________, J.
ASHMANN-GERST