THE PEOPLE, Plaintiff and Respondent, v. RICHARD COOPER, Defendant and Appellant.
A156880
Court of Appeal of the State of California, First Appellate District, Division One
September 1, 2020
Alameda County Super. Ct. No. 122225. Hon. Morris Jacobson, Judge.
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
Nearly two decades after Cooper‘s plea, the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill No. 1437), which altered liability for murder under the theories of felony murder and natural and probable consequences. The bill also established a procedure, under newly enacted
to the felony murder rule or the natural and probable consequences doctrine.” He also asked that counsel be appointed for him.
The trial court denied the petition without appointing counsel, concluding that Cooper was “ineligible for resentencing as a matter of law.” Relying on the transcript of the preliminary hearing—which Cooper did not stipulate to as the factual basis of his plea—the court concluded that regardless of whether Cooper or the other man was “more culpable” for Whitten‘s death, Cooper‘s “murder conviction rests on a valid theory of murder.”
I. FACTUAL AND PROCEDURAL BACKGROUND
Whitten and her fetus were murdered in Oakland on the night of May 19, 1994. As discussed in more detail below, evidence was presented at the preliminary hearing that Cooper, who was then 18 years old, raped
Whitten while another man, Emilio Mitchell, Jr., kicked her in the face.2 Mitchell repeatedly jumped onto Whitten‘s head, a cinder block was thrown on her head by both men, and Cooper cut Whitten‘s throat, possibly after she was already dead. Based on this evidence, Cooper was charged with two counts of murder, with the accompanying allegation as to both crimes that he personally used a deadly and dangerous weapon, a cinder block.3 It was also alleged that he inflicted great bodily injury on Whitten during the crime.4
In April 1998, Cooper pleaded no contest to one count of second degree murder, and the remaining count and all enhancements were dismissed. At the plea hearing, during the discussion of promises made to Cooper in exchange for his plea, his trial counsel stated, “The district attorney indicated that he would write in his letter to the Board of Prison Terms that the evidence supports the theory that the defendant is not a direct actor here but an aider and abettor.” The prosecutor confirmed this was the case. Before taking the plea, the trial court asked whether there was “a stipulated factual basis for the plea,” and Cooper‘s trial counsel stated, “So stipulated.” The record does not
On February 10, 2019, shortly after Senate Bill No. 1437 took effect, Cooper filed a petition for relief under
proceed under a felony murder theory or the natural and probable consequences doctrine; he entered a plea to first or second degree murder in lieu of going to trial because he believed he could have been convicted of murder under a felony murder theory or the natural and probable consequences doctrine; and he could not now be convicted of murder in light of Senate Bill No. 1437‘s changes to the law. In addition, he checked a box indicating that he was convicted of second degree murder under the natural and probable consequences doctrine or under the second degree felony murder doctrine and a box stating, “I request that this court appoint counsel for me during this re-sentencing process.”5 Cooper included with the petition the transcript of his plea hearing and his abstract of judgment.
A different judge than the judge who sentenced Cooper summarily denied the petition on February 21, 2019. Cooper did not appear, and the trial court did not appoint counsel to represent him. In its written order, the court stated that the order‘s “procedural and factual history [was] based on the Court‘s records in this matter[,] including the preliminary hearing transcript (dated 1 November 1994) and the change of plea transcript (8 April 1998).” The record before us includes both of these transcripts, as well as the abstract of judgment, but it does not include other court documents from the
1990‘s except for the November 14, 1994 information.6 Thus, it is unclear what other documents the court may have considered.
While recognizing that Cooper “did not specify what [the factual] basis [of his plea] was,” the trial court recited the underlying facts based exclusively on the evidence presented at the preliminary hearing. This evidence primarily consisted of the testimony of two minor brothers, L.M. and D.B., who were partying at their mother‘s apartment with Cooper, Mitchell, and others on the
About five minutes later, L.M. heard Whitten say she was pregnant. Mitchell then went into the neighboring backyard. A few minutes later, L.M. followed to see what was going on and saw Cooper having sex with Whitten, who was on the ground, and Mitchell kicking her in the face. Whitten was trying to get away, and L.M. pulled Mitchell aside and told him to “let it go.” Mitchell said he was going to kill Whitten so that she did not snitch on him. L.M. testified that Mitchell also tried to have sex with Whitten, but was unable to do so because she was moving too much.
At some point, Whitten grabbed L.M. and asked him to get her boyfriend, but instead, he went back inside to get help from his brother and
another friend. Once inside, L.M. looked out a window and saw that Mitchell was still kicking Whitten in the head and Cooper was still raping her. Apparently, while L.M. and the other friend went back outside, D.B. watched the attack from the apartment. D.B. testified that he saw Mitchell repeatedly jump from some nearby stairs onto Whitten‘s head, and he also saw Mitchell and Cooper take turns dropping a cinder block on her head.
Meanwhile, after L.M. went back outside, he saw Mitchell hit Whitten on the head with a cinder block “one last time.” Mitchell and Cooper apparently left the backyard, but Cooper returned shortly afterward, saying he was going to “slit [Whitten‘s] throat” so that she did not snitch on him. D.B. testified that he saw Cooper grab Whitten‘s hair and slit her throat while Mitchell stood next to him. After the murder, Cooper and Mitchell burned their clothes in the parking lot of the brothers’ apartment building.
The parties stipulated that if called to the stand, the pathologist who performed the autopsies would testify that Whitten‘s cause of death was “blunt trauma to the head associated with asphyxia due to compression of the neck,” and the fetus‘s cause of death was “maternal death.” The parties also stipulated that the pathologist would testify to finding, among other injuries, “extensive lacerations, contusions[,] and abrasions on [Whitten‘s] face and scalp[,] . . . extensive skull fractures, . . . brain contusions, . . . [and] incised wounds of the neck.”
After describing this evidence presented at the preliminary hearing—to which, again, Cooper never stipulated—the trial court turned to its legal
“[Cooper] lured [Whitten] into a dark driveway with the false promise of drugs. Whether the sexual encounter began as a consensual one or not does not matter because it did not end as one. Cooper continued to rape [Whitten] even after she said she was pregnant. He continued to rape her even as Mitchell kicked her in the head. He continued to rape her even after she asked [L.M.] for help. Cooper and Mitchell then said they would kill [Whitten] to keep her from ‘snitching’ and they did just that in a particularly brutal manner. Although [Whitten] would have been dead or dying by that point, Cooper inexplicably tried to cut her throat. Both men burned and threw away their clothes before literally washing their hands of her.
“The Court need not split hairs over who is more culpable on these facts. (
§ 189, subds. (a) &(e) .) [Cooper‘s] murder conviction rests on a valid theory of murder; the conviction survives changes made by [Senate Bill No.] 1437 tosections 188 and189 . (§ 1170.95, subd. (a)(3) .) The petition is denied because [Cooper] is ineligible for resentencing undersection 1170.95 as a matter of law. (§ 1170.95[(c)] .)”
II. DISCUSSION
For reasons we shall explain, we hold that when a petitioner files a facially sufficient petition requesting counsel, as Cooper did, the trial court must appoint counsel and give the parties an opportunity to submit briefing before denying the petition. While the denial of counsel may be harmless in some situations, such as when the petitioner is not entitled to relief as a matter of law, it was not harmless here. Cooper‘s conviction was based on a plea whose particular factual basis was never established. The trial court‘s ruling that Cooper was ineligible for relief as a matter of law was therefore mistaken, because it was based on impermissible factfinding that accepted
the truth of the preliminary-hearing testimony without giving Cooper the opportunity to challenge that testimony. Accordingly, we must reverse.
On remand, Cooper must be appointed counsel and be allowed to submit briefing, even though his petition‘s likelihood of success may be remote. The two witnesses who testified at the preliminary hearing described appalling acts of violence by Cooper against Whitten. If the facts those witnesses described are accepted, Cooper will not be entitled to relief under
A. The Right to Counsel Under Section 1170.95 Attaches Upon the Filing of a Facially Sufficient Petition.
Cooper claims that he was entitled to counsel under
1. General legal standards
Senate Bill No. 1437, which took effect on January 1, 2019, was passed “‘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.‘” (People v. Lamoureux (2019) 42 Cal.App.5th 241, 247, quoting Stats. 2018, ch. 1015, § 1, subd. (f).) “Under the felony-murder rule as it existed prior to Senate Bill [No.] 1437, a defendant who intended to commit a specified felony could be convicted of murder for a killing during the felony, or attempted felony, without further examination of his or her mental state.” (Lamoureux, at pp. 247–248.) In
addition, “[i]ndependent of the felony-murder rule, the natural and probable consequences doctrine rendered a defendant liable for murder if he or she aided and abetted the commission of a criminal act (a target offense), and a principal in the target offense committed murder (a nontarget offense) that, even if unintended, was a natural and probable consequence of the target offense.” (Id. at p. 248.)
Senate Bill No. 1437 changed murder liability under these theories through two statutory amendments. First, “[t]he bill redefined malice under
Senate Bill No. 1437 also enacted
The defendant initiates the process by filing a petition in the sentencing court that must include three pieces of information. (
If a petition is missing any of these three pieces of information and the missing information “cannot be readily ascertained by the [trial] court, the court may deny the petition without prejudice” to filing another petition that includes the required information. (
The primary issue in this case is when the right to counsel arises under
with every other part or section so as to produce a harmonious whole,‘” and we therefore interpret subdivision (c) in light of
2. Other decisions interpreting section 1170.95(c)
“At first blush, [
Lewis, a decision by Division One of the Second District Court of Appeal, was the first published decision to address when the right to counsel arises under
“construe the timing of particular acts in relation to other acts according to their location within the statute; that is, actions described in the statute occur in the order they appear in the text.” (Ibid.)
Applying this logic to the sentences comprising
In Verdugo, Division Seven of the Second District Court of Appeal attempted a more thorough explanation of the procedure
Verdugo explained its view that the “second prima facie review, made following a round of briefing by the prosecutor and counsel for petitioner, is equivalent to the familiar decisionmaking process before issuance of an order to show cause in habeas corpus proceedings, which typically follows an informal response to the habeas corpus petition by the Attorney General and a reply to the informal response by the petitioner.” (Verdugo, supra, 44 Cal.App.5th at p. 328.) Reasoning that the “first prima facie review” must lie at “the midpoint” between the review for facial sufficiency under
stage 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.)
Verdugo ultimately concluded, as did Lewis and the other appellate courts to decide the issue, that the right to counsel under
3. Analysis
We decline to adopt the view that
Our analysis begins with accepting that the subdivisions of
To the contrary, neither other subdivisions of
third sentence establishes the deadlines for the parties to “file and serve” their briefs, and the fourth sentence provides that “these deadlines shall be extended for good cause“—an extension that would be given before the briefs were filed and served.
The explanation given of the wording difference between the two prima facie reviews is that the first addresses “eligibility” for relief, and the second addresses “entitlement” to relief. (Tarkington, supra, 49 Cal.App.5th at p. 902; Drayton, supra, 47 Cal.App.5th at pp. 975–976; but see Lewis, supra, 43 Cal.App.5th at p. 1140, fn. 10 [“not clear from the text of subdivision (c) what, if any, substantive differences exist” between the two prima facie showings].) Under this explanation, the first review requires the trial court
to “determine, based upon its review of readily ascertainable information in the record of conviction and the court file, whether the petitioner is statutorily eligible for relief as a matter of law,” and the second review requires the court to “take [the] petitioner‘s factual allegations as true and make a preliminary assessment regarding whether he or she would be entitled to relief if the factual allegations were proved.” (Tarkington, at p. 898; see also Drayton, at pp. 975–976.)
We are not convinced. We accept that, generally speaking, there is a difference between eligibility for relief and entitlement to relief, and we are willing to assume that the phrase “falls within the provisions of this section” refers to eligibility, not entitlement. We also accept the principle that “[w]hen the Legislature uses materially different language in statutory provisions addressing the same subject or related subjects, the normal inference is that the Legislature intended a difference in meaning.” (People v. Trevino (2001) 26 Cal.4th 237, 242.)
But
Similarly, under
The legislative history of Senate Bill No. 1437 also supports the conclusion that the Legislature used the concepts of eligibility and entitlement interchangeably. The first two versions of the bill would have required the parties to brief, within 60 days of receiving notice that a petition was filed, whether the petitioner was “entitled to relief,” and the trial court to hold a resentencing hearing if it found “sufficient evidence that the petitioner falls within the provisions of this section.” (Sen. Bill No. 1437, as introduced Feb. 16, 2018, § 6; id., as amended May 25, 2018, § 6.) The Tarkington majority marshaled this aspect of the bill‘s evolution to claim that “defense counsel and the prosecutor were always intended to brief only the question of the petitioner‘s entitlement to relief; the court was to determine eligibility—whether the petitioner ‘falls within the provisions of this section‘—on its own, without briefing on the question from the parties.” (Tarkington, supra, 49 Cal.App.5th
at p. 903.) But the decision does not explain why it would make sense to require the parties to brief whether the petitioner met the greater burden before the court determined whether he or she met the lesser burden.
This brings us to another text-based reason for not reading
This point also undercuts the asserted policy-based justification for the prevailing interpretation of
Verdugo concluded that Senate Bill No. 1437‘s legislative history reveals “the Legislature‘s intent that the superior court perform a substantive gatekeeping function, screening out clearly ineligible petitioners before devoting additional resources to the resentencing process.” (Verdugo, supra, 44 Cal.App.5th at p. 331.) In reaching this conclusion, Verdugo misread subdivision (c) to provide that “if the petitioner‘s ineligibility for resentencing under
days of service of the petition,” without the need for any action by the trial court. (
The legislative evolution of
strongly suggest that the Legislature intended for the prosecutor, not the court, to take the lead in identifying which petitioners are not entitled to relief as a matter of law based on the record of conviction.9
B. The Trial Court‘s Failure to Appoint Counsel for Cooper Was Prejudicial.
We next turn to consider whether the trial court‘s failure to appoint counsel for Cooper requires reversal. We conclude that it does.
Initially, we reject Cooper‘s cursory assertion that “[t]he failure to appoint counsel at a critical stage of the proceedings requires reversal of the resulting judgment without regard to any harmless error analysis.” (See Edwards, supra, 48 Cal.App.5th at p. 675 [failure to appoint counsel susceptible to harmless-error analysis]; see also Tarkington, supra, 49 Cal.App.5th at p. 910.) Still, we need not resolve whether the federal or state standard of prejudice applies, because the failure to appoint counsel was prejudicial under both of them. Since the record does not conclusively demonstrate that Cooper was ineligible for relief as a matter of law, we
cannot say that the error was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24), and it is reasonably probable that if Cooper had been afforded assistance of counsel his petition would not have been summarily denied without an evidentiary hearing. (People v. Watson (1956) 46 Cal.2d 818, 836.)
To begin with, we agree with Cooper that the trial court improperly relied on the transcript of the preliminary hearing to conclude that he was ineligible for relief as a matter of law. “[A]t the preliminary hearing, the magistrate is called upon only to determine whether the factual showing is sufficient to establish probable cause to believe the defendant committed a felony,” a “fundamentally different factual determination[]” than the determination at trial of guilt beyond a reasonable doubt. (People v. DeJesus (1995) 38 Cal.App.4th 1, 14.) So long as “there is such a state of facts as would lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused[,] . . . the magistrate must hold the defendant to answer.” (Id. at p. 15.) Thus, “it is generally not necessary that [the magistrate] resolve all possible conflicts in
Consistent with these principles, Drayton held that the trial court improperly denied the defendant‘s
still be convicted of felony murder after Senate Bill No. 1437 because he was a major participant in the underlying felony who acted with reckless indifference to human life. (Drayton, supra, 47 Cal.App.5th at pp. 981–982; see
For similar reasons, we conclude that the trial court here erred by relying on the transcript of the preliminary hearing to deny Cooper‘s petition without first receiving briefing from the parties. Refusing to “split hairs over who is more culpable on these facts,” the court did not identify which of the three surviving bases under
The Attorney General agrees that “[t]o the extent that the trial court weighed evidence in its finding of no prima facie case, that could not justify dismissal of the petition at the prima facie stages ‘as a matter of law,‘” and disclaims reliance “on the trial court‘s findings in that regard as a basis for
affirming its judgment.” But he urges us to conclude that any error was harmless on the alternate basis that “the record of conviction indisputably shows . . . that [Cooper‘s] plea to second degree murder was based on a theory of malice murder.” Specifically, the Attorney General argues, “The
We do not agree that these circumstances establish harmlessness. The information‘s enhancement allegations are relevant to the requirement for relief that “[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.” (
[finding that defendant personally and intentionally discharged firearm causing victim‘s death did not preclude relief under
Nor do we think it significant that there was mention at the plea hearing of the prosecutor‘s promise to “write in his letter to the Board of Prison Terms that the evidence supports the theory that [Cooper] is not a direct actor here but an aider and abettor.” There is little context for this statement in the record before us, and such stray comments hardly constitute Cooper‘s admission to being the actual killer, acting with an intent to kill, or anything else that would render him ineligible for relief under
Our opinion should not be read to suggest that, had the trial court appointed counsel for Cooper and received briefing from the parties, it could not then rely on the preliminary-hearing transcript to deny the petition for failure to make a prima facie showing of entitlement to relief. We need not decide whether the court could have properly denied the petition based on the existing record if, for example, Cooper was appointed counsel but did not exercise the opportunity to file a brief. Even if we assume that it was proper
The order denying relief highlights this prejudice because it faulted Cooper for submitting a form petition that did not “present any facts, address the factual basis for his plea, or address the evidence elicited during the preliminary hearing.” Nothing in
procedure under which a petitioner is appointed counsel upon filing a facially sufficient petition that requests counsel. Without the assistance of counsel, prisoners seeking relief under
III. DISPOSITION
The order denying Cooper‘s petition is reversed, and the matter is remanded for the trial court to appoint counsel for Cooper and conduct further proceedings under
Humes, P.J.
WE CONCUR:
Margulies, J.
Banke, J.
People v. Cooper A156880
Trial Court: Superior Court of the County of Alameda
Trial Judge: Hon. Morris Jacobson
Counsel for Defendant and Appellant: Eric S. Multhap, under appointment by the Court of Appeal
Counsel for Plaintiff and Respondent: Xavier Becerra, Attorney General; Lance E. Winters, Chief Assistant Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General; Rene Chacon, Supervising Deputy Attorney General; Juliet B. Haley, Deputy Attorney General
People v. Cooper A156880