People v. Cooper CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of Riverside County · No. RIF135518
- Trial judge
- John D. Molloy
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), O'Rourke, Joan K. Irion
Analysis
The trial court denied Cooper's petition for resentencing under Penal Code section 1170.95 based on the prosecutor's oral representation that the jury was not instructed on felony murder or natural and probable consequences. The Court of Appeal affirmed the denial, finding no arguable issues for reversal after an independent review of the record pursuant to Wende and Anders.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1170.95“The court denied Cooper’s petition for resentencing.” | de novo | correct | agree with court The trial court correctly denied the petition because the record established that the jury was not instructed on felony murder or natural and probable consequences, which are prerequisites for eligibility under section 1170.95. The appellate court affirmed, finding no error in the trial court's reliance on the undisputed oral representation from the prosecutor and defense counsel that no such instructions were given. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for arguable issues when no issues are identified, and the court to conduct an independent review.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to file a brief identifying potential issues and request the court to review the record when no arguable issues are found.
The appellate opinion: sound — The opinion is procedurally sound as it follows the required Wende/Anders protocol for reviewing a record when counsel identifies no arguable issues. The court correctly notes that the lack of felony murder or natural and probable consequences instructions renders the petitioner ineligible for resentencing under section 1170.95, making the trial court's denial correct.
The Riverside County Superior Court denied Meikel Cooper's Penal Code section 1170.95 resentencing petition at a hearing after the prosecutor represented, without contradiction from defense counsel, that the 2008 jury had not been instructed on felony murder or the natural and probable consequences doctrine. On appeal, counsel filed a Wende brief, Cooper filed no supplemental brief, and the Court of Appeal reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial (styled as dismissal) of the section 1170.95 petition based on the prosecutor's undisputed oral representation that no felony-murder or natural-and-probable-consequences instructions were given at trial“Whether the court erred by dismissing Cooper’s petition based on the prosecutor’s undisputed oral representation that there had been no instructions on felony murder or natural and probable consequences, without receiving on the point, or itself examining the record of conviction.” | unclear | correct | agree with court Under People v. Lewis the trial court may consult the record of conviction, including jury instructions, to determine whether a petitioner makes a prima facie showing; if the jury was never instructed on felony murder or natural and probable consequences, Cooper was convicted as the actual perpetrator with malice and is ineligible as a matter of law. The trial court's method—accepting the prosecutor's oral representation with defense counsel's acquiescence rather than examining the record itself—is procedurally thin, and the prosecutor's statement that sentencing occurred after January 1, 2019 is plainly inconsistent with a 2008 conviction, yet the appellate court states it reviewed the entire record and found no arguable issue, which implies the instructions confirmed the representation. The result is defensible, but the opinion does not expressly confirm the instructional point or cite Lewis, so the reasoning is conclusory. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the reviewing court must independently review the record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Counsel filing a no-issue brief should identify anything in the record that might arguably support the appeal to assist the court's independent review.
- missed: People v. Lewis (2021) 11 Cal.5th 952 — At the prima facie stage of a section 1170.95 petition the court may rely on the record of conviction, including jury instructions, to determine ineligibility as a matter of law, but may not engage in factfinding; the court did not cite this controlling authority when evaluating the very issue counsel flagged.
- missed: People v. Serrano (2012) 211 Cal.App.4th 496 — Wende independent review is not constitutionally required in appeals from postconviction orders; the court applied Wende review without addressing whether it was required, though doing so favored the defendant and caused no prejudice.
The appellate opinion: sound with gaps — The affirmance is defensible because the absence of felony-murder and natural-and-probable-consequences instructions renders a petitioner ineligible for section 1170.95 relief as a matter of law, and the court states it reviewed the entire record. But the opinion does not expressly verify the instructional record, does not cite People v. Lewis for the governing prima facie standard, and ignores the prosecutor's facially erroneous statement that sentencing occurred after January 1, 2019.
How this analysis was made · dispute it
record incompleteOpinion
Filed 5/13/22 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
THE PEOPLE, D079588
Plaintiff and Respondent, v. (Super. Ct. No. RIF135518)
MEIKEL JEROME COOPER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Riverside County, John D. Molloy, Judge. Affirmed. David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2008, a jury convicted Meikel Jerome Cooper of second degree murder (Pen. Code,1 § 187, subd. (a)) and attempted voluntary manslaughter (§§ 664 & 187). The jury also found Cooper personally discharged a firearm causing death or great bodily injury as to the murder count (§ 12022.53, 1 All further statutory references are to the Penal Code. subd. (c)) and a similar enhancement under section 12022.53, subdivision (a) as to the attempted manslaughter count. Cooper was sentenced to an indeterminate term of 42 years in prison. Cooper appealed and this court affirmed his convictions in an unpublished opinion, People v. Cooper, D058080 (Mar. 8, 2011). In 2019, Cooper filed a petition for resentencing under section 1170.95. The court appointed counsel, and held a hearing at which the following comments were made: “[PROSECUTOR]: Your Honor, this is another case where I’ve shared my notes with counsel. I’ve reviewed the record. Not only did sentencing occur in this case after January 1st, 2019, when SB-1437 went into effect, but there are no instructions on natural and probable consequences or felony murder.
“[DEFENSE COUNSEL]: Submit. I have nothing to indicate that that’s untrue.
“THE COURT: You’re not aware of any natural and probable consequences or felony murder instructions?
“[DEFENSE COUNSEL]: That’s correct.
“THE COURT: Matter is dismissed.”
The court denied Cooper’s petition for resentencing. Cooper filed a timely notice of appeal from the denial of his petition for resentencing. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandate by Wende. We offered Cooper the opportunity to file his own brief on appeal, but he has not responded.
2 STATEMENT OF FACTS The facts of the underlying offenses are set forth in our prior opinion. We will not repeat them here. DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following issue that counsel considered in evaluating the potential merits of this appeal. Whether the court erred by dismissing Cooper’s petition based on the prosecutor’s undisputed oral representation that there had been no instructions on felony murder or natural and probable consequences, without receiving on the point, or itself examining the record of conviction. We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Cooper on this appeal.
3 DISPOSITION The order denying Cooper’s petition for resentencing under section 1170.95 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O’ROURKE, J.
IRION, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12