Filed 4/14/22 P. v. Cooper CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, David M. Gill, Judge. Reversed and remanded with directions.

Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Lynne E. McGinnis and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.

Calvin Cooper appeals an order summarily denying his petition to vacate his first degree murder conviction under Penal Code[1] section 1170.95. The trial court found he was not entitled to relief, as a matter of law, because the jury returned a true finding on a robbery-murder special circumstance with the murder conviction. The jury’s finding on the special circumstance was made before the California Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which clarified the meaning of the terms “major participant” and “reckless indifference to human life” necessary to support such felony-murder special circumstance findings. (Banks, at pp. 797-798, 803; Clark, at pp. 608-624.)

Our high court is currently reviewing the question of whether a felony-murder special circumstance finding made before Banks and Clark precludes a defendant from making a prima facie showing of eligibility for relief under section 1170.95. (People v. Strong (Dec. 18, 2020, C091162) [nonpub. opn.], review granted Mar. 10, 2021, S266606.) Until then, we follow this court’s opinions in People v. Wilson (2021) 69 Cal.App.5th 665 (Wilson) (Irion, J., O’Rourke, A.P.J., Guerrero, J.) and People v. Arias (2021) 66 Cal.App.5th 987 (Arias) (McConnell, P.J., Dato, J., Guerrero, J.), and conclude a felony-murder special circumstance finding made before Banks and Clark does not categorically bar relief under section 1170.95.[2] Further, given the limited record of conviction before us, we are unable to independently determine whether the special circumstance finding satisfied the standards set forth in Banks and Clark. We therefore reverse the trial court’s order denying the petition and remand the matter for resumption of proceedings.

BACKGROUND

On December 23, 1992, a jury convicted Cooper of murder while in the perpetration of a robbery with a robbery-murder special circumstance (§§ 187, subd. (a); 190.2, subd. (a)(17)); eight counts of second degree robbery (§ 211); attempted rape (§§ 664/261, subd. (a)(2)/264.1); attempted sodomy (§§ 664/286, subd. (d)); three counts of oral copulation (§ 288a, subd. (d)); four counts of first degree robbery (§§ 211/212.5, subd. (a)); two counts of assault with a deadly weapon (§ 245, subd. (a)(1)); one count of assault with a firearm (§ 245, subd. (a)(2)); kidnapping (§ 209, subd. (b)); vehicle theft (Veh. Code § 10851, subd. (a)); attempted robbery (§§ 664/211); and six counts of second degree robbery while armed with a firearm (§§ 211 & 12022, subd. (a)(1). The court sentenced Cooper to life in prison without the possibility of parole plus life with parole plus a determinate term of 39 years eight months, to be served consecutively.

In 1995, we affirmed the judgment against Cooper. (See People v. Cooper (Mar. 24, 1995, D018795) [nonpub. opn.].)

Cooper filed a petition for resentencing pursuant to section 1170.95 on October 16, 2019. The superior court appointed counsel to represent Cooper. The prosecutor filed an initial response and a supplemental response to the petition, asserting that Cooper was ineligible for resentencing as a matter of law based on the jury’s prior felony-murder special circumstance true finding. Cooper did not file a reply.

On November 2, 2020, the superior court denied Cooper’s petition for resentencing after reviewing the briefing and the record of conviction. The superior court found that “because there has been a special circumstance finding that [Cooper] was a major participant and acted with reckless indifference to human life, he is precluded from relief pursuant to Penal Code section 1170.95, absent habeas relief as to the special circumstance finding”; therefore, Cooper “has failed to make a prima facie showing that he is statutorily eligible for resentencing and the petition is denied.”

Cooper timely filed a notice of appeal.

DISCUSSION

I

IMPACT OF FELONY-MURDER SPECIAL CIRCUMSTANCE FINDING MADE BEFORE BANKS AND CLARK

“Effective January 1, 2019, the Legislature passed Senate Bill 1437 ‘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, subd. (f).) In addition to substantively amending sections 188 and 189 of the Penal Code, Senate Bill 1437 added section 1170.95, which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief.” (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)

“Pursuant to section 1170.95, an offender must file a petition in the sentencing court averring that: ‘(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 first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.’ ” (Lewis, supra, 11 Cal.5th at pp. 959-960; see § 1170.95, subds. (a), (b)(1).)

If the petition meets these basic requirements, the trial court “proceeds to subdivision (c) to assess whether the petitioner has made ‘a prima facie showing’ for relief. (§ 1170.95, subd. (c).)” (Lewis, supra, 11 Cal.5th at p. 960.) “If the trial court determines that a prima facie showing for relief has been made, the trial court issues an order to show cause, and then 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 in the same manner as if the petitioner had not . . . previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.’ (§ 1170.95, subd. (d)(1).)” (Lewis, at p. 960.) At the hearing on the order to show cause, “ ‘[t]he prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.’ (§ 1170.95, subd. (d)(3).)” (Lewis, at p. 960.)

The trial court determined Cooper was not eligible for relief under section 1170.95 at the prima facie stage and, with respect to his murder conviction, based its decision solely on the jury’s robbery-murder special circumstance finding. Cooper asserts the trial court erred because the special circumstance finding does not categorically bar him from relief under section 1170.95.[3] We agree.

It is undisputed that the record of conviction here does not establish that Cooper was the shooter. The jury made felony-murder special circumstance findings pursuant to section 190.2, subdivision (a)(17), and those findings required the jury to conclude Cooper either had the intent to kill or was a major participant that acted with reckless indifference to human life. However, the jury made those findings in 2009, well before the California Supreme Court decided Banks and Clark and clarified the meaning of the terms “major participant” and “reckless indifference to human life” necessary to support such felony-murder special circumstance findings. (Banks, supra, 61 Cal.4th at pp. 797-798, 803; Clark, supra, 63 Cal.4th at pp. 608-624.)

As the trial court acknowledged, there is currently a split in the appellate courts as to whether a defendant is categorically precluded from relief under section 1170.95 based on a felony-murder special circumstance finding that occurred before Banks and Clark. (See Wilson, supra, 69 Cal.App.5th at pp. 672-673, 676-677.) Some courts have found that such a special circumstance finding bars relief under section 1170.95, and a defendant must instead pursue a claim that the finding would not be supported by substantial evidence following Banks and Clark through a petition for habeas corpus. (See Gomez, supra, 52 Cal.App.5th at pp. 16-17, review granted; People v. Galvan (2020) 52 Cal.App.5th 1134, 1142-1143, review granted Oct. 14, 2020, S264284.) Others have disagreed and have, instead, concluded that a special circumstance finding does not categorically bar relief under section 1170.95 because the court in Banks and Clark “ ‘construed the meanings of “major participant” and “reckless indifference to human life” “in a significantly different, and narrower manner.” ’ ” (People v. York (2020) 54 Cal.App.5th 250, 258, review granted Nov. 18, 2020, S264954; People v. Smith (2020) 49 Cal.App.5th 85, 93-94, review granted July 22, 2020, S262835; People v. Torres (2020) 46 Cal.App.5th 1168, 1180, review granted June 24, 2020, S262011.)

As this court recently stated: “The Courts of Appeal have subjected the issue at hand to vigorous debate and devoted countless pages of discussion on the subject. The issue is currently under review by the Supreme Court as well, so we will soon have clarity one way or the other. [Citation.] Given this context, we need not add to the conversation with further extensive argument or analysis. [¶] It will suffice for us to state that we are persuaded by the logic of the courts that have concluded pre-Banks and Clark felony-murder special-circumstance findings do not categorically preclude defendants from obtaining resentencing relief under section 1170.95.” (Arias, supra, 66 Cal.App.5th at pp. 1003-1004.) Thus, we adopt the pertinent analysis of those courts, including Wilson, supra, 69 Cal.App.5th 665 and Arias, supra, 66 Cal.App.5th 987 and incorporate them here.

As in Wilson, the jury here found Cooper guilty of first degree murder and found the felony-murder special circumstances true before our high court provided additional guidance as to the factors relevant to those charges. (See Wilson, supra, 69 Cal.App.5th at pp. 684-685.) Thus, “t is possible that a jury considering [Cooper’s] conduct under the gloss of [i]Banks and Clark could find that the People did not meet their burden in proving the special circumstances true.” (Id. at p. 685.) We therefore conclude the trial court erred by relying solely on the robbery-murder special circumstance finding to deny Cooper’s section 1170.95 petition with respect to his first degree murder conviction.

II.

REMAND IS APPROPRIATE

The People assert any error is harmless because the record of conviction establishes the jury’s robbery-murder special circumstance finding was valid as a matter of law even if we consider the additional guidance provided in Banks and Clark. We disagree.

“[T]he application of Banks and Clark to a given set of facts ultimately presents an issue of law,” such that the appellate court should undertake an individualized review of the record of conviction to determine whether the special circumstance finding satisfies the Banks and Clark standards. (People v. Secrease (2021) 63 Cal.App.5th 231, 255 (Secrease), review granted June 30, 2021, S268862; accord Wilson, supra, 69 Cal.App.5th at p. 686; Arias, supra, 66 Cal.App.5th at pp. 1004-1005.) However, when, as here, the record of conviction before the court “consists almost entirely of what we can discern from [the appellate opinion in the direct appeal]” and it is “too sparse to make a definitive assessment of that issue one way or another,” remand is proper. (Secrease, at p. 261; see Wilson, at p. 686 [declining to conduct a review under Banks and Clark on appeal and clarifying the trial court need not rely solely on the previous appellate opinion]; Arias, at pp. 1005-1006 [remanding for trial court to conduct a sufficiency of the evidence review of the full record of conviction because the appellate opinion did not address the vast majority of the actus reus and mens rea factors set forth in Banks and Clark].)

Here, the People do not rely on the previous appellate opinion in the direct appeal because that appeal did not include a statement of facts or involve a substantial evidence challenge to the murder conviction. Instead, the People offer the statement of facts from the respondent’s brief filed in the direct appeal, which includes citation to the reporter’s transcript of Cooper’s 1992 criminal trial.[4] Yet, that brief does not provide a sufficient set of undisputed facts to allow us to make a definitive assessment of whether the felony-murder special circumstance satisfies the Banks and Clark standards. Further, we note that, in opposing Cooper’s motion for resentencing under section 1170.95 below, the prosecution did not proffer these facts to the trial court. Instead, the prosecution appears to have referenced the summary of facts set forth in the probation report. And the trial court did not consider any of the facts underlying Cooper’s murder conviction in denying his motion for resentencing. Rather, the court, following Gomez, supra, 52 Cal.App.5th at page 17, review granted, simply noted that the jury made a finding that the jury returned a true finding on a robbery-murder special circumstance with the murder conviction, which made Cooper ineligible, as a matter of law, for relief under section 1170.95.

Here, considering the issues raised in the direct appeal, the lack of any statement of undisputed facts in the record, the trial court’s limited inquiry of the record of conviction, and our concern that we would need to make factual findings prohibited by our high court in Lewis, supra,11 Cal.5th 952, we decline to determine, as a matter of law, that Cooper’s actions meet the standard of Banks and Clark for a major participant acting with reckless indifference to human life. We therefore remand the matter to the trial court to consider the issue “in light of the full record of conviction, including the trial evidence.” (Secrease, supra, 63 Cal.App.5th at p. 261, review granted; accord Wilson, supra, 69 Cal.App.5th at p. 686; Arias, supra, 66 Cal.App.5th at pp. 1005-1006.) On remand, the trial court must determine whether Cooper has made a prima facie showing on his petition with respect to his murder conviction, notwithstanding the jury’s special circumstance findings. As our high court recently clarified, the trial court may consider the record of conviction, including the appellate opinion in the direct appeal but “should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ ” (Lewis, supra, 11 Cal.5th at p. 972.) “[T]he ‘prima facie bar was intentionally and correctly set very low.’ ” (Ibid.) “Thus, the trial court should issue an [order to show cause] unless the record of conviction unequivocally negates [Cooper’s] contentions, rendering him unable to meet his burden.” (Wilson, supra, 69 Cal.App.5th at p. 687.)

DISPOSITION

The order denying Cooper’s section 1170.95 petition is reversed and the matter is remanded to the trial court for resumption of proceedings to determine whether Cooper has made a prima facie showing on the petition for resentencing.

HUFFMAN, Acting P. J.

WE CONCUR:

AARON, J.

DATO, J.

[1] Statutory references are to the Penal Code unless otherwise specified.

[2] We acknowledge a panel of this court has reached the opposite conclusion. (People v. Gomez (2020) 52 Cal.App.5th 1, 17 (Gomez) (O’Rourke, J., Benke, A.P.J., Huffman, J.), review granted October 14, 2020, S264033.)

[3] We note the trial court did not have the benefit of Wilson, supra, 69 Cal.App.5th 665 and Arias, supra, 66 Cal.App.5th 987, both of which were issued well after Cooper’s petition was denied.

[4] We grant the People’s request to take judicial notice of the record in the underlying direct appeal.