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People v. Cooper

California Court of Appeals, First District, Fourth Division
Jun 24, 2024
No. A168440 (Cal. Ct. App. Jun. 24, 2024)

Opinion

A168440

06-24-2024

THE PEOPLE, Plaintiff and Respondent, v. DERRICK COOPER, Defendant and Appellant.


NOT TO BE PUBLISHED

San Francisco City & County Super. Ct. No. SCN 167826, CT01694747

BROWN, P. J.

Defendant appeals from the trial court's postjudgment order denying his pro se petitions for recall and resentencing under Penal Code sections 1170, subdivision (d) (section 1170(d)) and 1170.126. On appeal, he suggests that we treat this as an appeal from an order denying a petition under section 1172.1, and he requests that we remand the matter with directions for the trial court to consider recalling defendant's sentence and resentencing him on its own motion. (§ 1172.1, subd. (a).) We affirm the trial court's order.

All further statutory references are to the Penal Code.

BACKGROUND

A jury convicted defendant of multiple counts of forcible rape (§ 261, subd. (a)(2)), first degree burglary (§ 459), forcible oral copulation (§ 288a, subd. (c)), attempted sodomy (§§ 286, subd. (c), 664), and first degree robbery (§ 212.5). After multiple appeals, the trial court ultimately sentenced defendant to a total term of 86 years to life in state prison. This court affirmed the judgment. (People v. Cooper (Aug. 25, 2003, A101802) [nonpub. opn.].)

On January 18, 2023, defendant used a pre-printed form to file a pro se "motion [for] modification of sentence" under section 1170(d) , leaving blank the area under which he was to set forth the "grounds and facts" that supported his request for relief. On the same day, he also filed a pro se petition for resentencing under section 1170.126, citing section 1170(d)(1). The trial court appointed counsel to represent defendant.

Section 1170(d)(1)(A) states: "When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing."

Section 1170.126 provides a specific resentencing process for defendants sentenced under the former Three Strikes law. (§ 1170.126, subd. (a).)

On June 26, 2023, the trial court held a hearing on the petitions, defendant was represented by counsel at the hearing, and defendant's counsel waived his appearance. The court found that defendant was not a juvenile at the time of the offenses and was thus ineligible for relief under section 1170(d). The court also found that because defendant was not sentenced under the Three Strikes Law, he was ineligible for relief under section 1170.126. The court denied both resentencing petitions.

Defendant filed a notice of appeal on July 25, 2023.

DISCUSSION

Defendant has not shown any reversible error. Under section 1170(d)(1)(A), a defendant who was under 18 at the time he or she committed the offense that resulted in a sentence of life without the possibility of parole may submit to the sentencing court a petition for recall and resentencing after he or she has been incarcerated for at least 15 years. (§ 1170(d)(1)(A).) Section 1170.126, in turn, allows a person "presently serving" an indeterminate sentence under the old Three Strikes law to petition for resentencing. (§ 1170.126, subd. (a); People v. Stewart (2021) 66 Cal.App.5th 416, 425.) The trial court accurately observed that defendant was over 18 when he committed the offenses, and defendant was not sentenced under the old Three Strikes Law. Defendant does not challenge the substance of these rulings on appeal, and we accordingly affirm the court's order.

Briefly, we also reject defendant's request that we remand for resentencing - a request that is founded on an implied suggestion that we deem his petitions to have been brought under section 1172.1. When defendant filed the petitions, section 1172.1 allowed a court to recall and resentence a defendant on its own motion within 120 days of the date of commitment. (Former § 1172.1, subd. (a).) Effective January 1, 2024, section 1172.1 now allows the trial court, upon its own motion, to recall and resentence a defendant at any time if the sentencing laws applicable at the time of original sentencing are changed by new statutory authority or case law. (§ 1172.1, subd. (a); Stats. 2023, ch. 795, § 1.5.) Here, however, defendant did not invoke section 1172.1 below, his counsel did not raise section 1172.1 at the hearing on the petitions, and the trial court did not address or decide the matter under section 1172.1. We thus decline to treat this matter as though it involved petitions under section 1172.1.

The recall and resentencing provisions that now appear in section 1172.1 historically were found in former section 1170, subdivision (d)(1) until 2022. Assembly Bill No. 1540 (2021-2022 Reg. Sess.), effective January 1, 2022, moved the recall and resentencing provisions from former section 1170, subdivision (d)(1) to section 1170.03. (Assem. Bill No. 1540; Stats. 2021, ch. 719, §§ 2, 3.1.) Section 1170.03 was then renumbered to section 1172.1 effective June 30, 2022. (Assem. Bill No. 200, Stats. 2022, ch. 58, § 9.)

While a court is not currently obligated to respond to a defendant's request for consideration for relief under section 1172.1, we note that nothing in this opinion precludes the trial court in the future from considering whether to exercise its authority to recall and resentence defendant on its own motion under that statute. (§ 1172.1, subds. (a), (c).)

DISPOSITION

The trial court's order denying defendant's petitions for resentencing is affirmed.

WE CONCUR: GOLDMAN, J., HITE, J. [*]

[*] Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

People v. Cooper

California Court of Appeals, First District, Fourth Division
Jun 24, 2024
No. A168440 (Cal. Ct. App. Jun. 24, 2024)
Case details for

People v. Cooper

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DERRICK COOPER, Defendant and…

Court:California Court of Appeals, First District, Fourth Division

Date published: Jun 24, 2024

Citations

No. A168440 (Cal. Ct. App. Jun. 24, 2024)