People v. Cooper CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of Riverside County · No. RIF135518
- Trial judge
- William S. Lebov (retired judge)
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Joan K. Irion, Truc T. Do
Analysis
The trial court denied Cooper's second petition for resentencing under Penal Code section 1172.6, relying on the parties' stipulation that he was the actual shooter and that no natural and probable consequences or felony murder instructions were given. The Court of Appeal affirmed the denial, finding no arguable issues for reversal after a Wende review.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of second petition for resentencing under Penal Code section 1172.6“We have reviewed the record for error as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal.” | de novo | correct | agree with court The trial court correctly denied the petition because the record established Cooper was the actual shooter and the jury was not instructed on natural and probable consequences or felony murder, rendering him ineligible for relief under section 1172.6. The appellate court correctly affirmed, as the stipulated facts precluded any arguable claim of error. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for error when no arguable issues are identified.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires independent review of the record by the court when counsel files a no-merit brief.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework to review the record. It relies on the stipulated facts from the hearing to affirm the denial, which is appropriate given the lack of arguable issues.
How this analysis was made · dispute it
unusual dispositionThe Riverside County Superior Court denied Meikel Cooper's second petition for resentencing under Penal Code section 1172.6 after the prosecutor represented, and defense counsel confirmed, that the jury received no natural and probable consequences or felony-murder instructions and that Cooper was the actual shooter. On appeal, counsel filed a Wende brief, Cooper filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of Cooper's second section 1172.6 resentencing petition on the ground that he was the actual shooter and the jury was not instructed on natural and probable consequences or felony murder“We have not discovered any arguable issues for reversal on appeal.” | unclear | correct | agree with court A defendant convicted as the actual shooter under a jury not instructed on any imputed-malice theory is ineligible for section 1172.6 relief as a matter of law; the prior petition was denied on the same ground and affirmed on appeal. The only potential issue counsel flagged—reliance on counsel's oral representations—is weak because the jury instructions were part of the record of conviction, defense counsel confirmed the prosecutor's account, and under People v. Lewis the court may consult the record of conviction at the prima facie stage. The opinion does not explain this, but the result is correct. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Appellate counsel who finds no arguable issues may file a brief asking the court to independently review the record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Counsel should identify potential issues to assist the reviewing court when filing a no-merit brief.
- missed: People v. Delgadillo (2022) 14 Cal.5th 216 — Wende/Anders procedures do not apply as of right to appeals from denial of section 1172.6 petitions; the court must notify the defendant of the opportunity to file a supplemental brief and may dismiss as abandoned if none is filed, though it retains discretion to conduct independent review.
- missed: People v. Lewis (2021) 11 Cal.5th 952 — At the prima facie stage of a section 1172.6 petition the trial court may rely on the record of conviction, including jury instructions, to determine whether the petitioner is ineligible for relief as a matter of law.
The appellate opinion: sound with gaps — The affirmance is plainly correct because an actual shooter whose jury was never instructed on an imputed-malice theory is ineligible for section 1172.6 relief, and the court gave Cooper notice and an opportunity to file his own brief before independently reviewing the record. The opinion, however, does not cite People v. Delgadillo, decided the day before, which governs the Wende procedure in this context, and it does not explain why the one potential issue counsel identified—reliance on counsel's oral representations rather than the instructions themselves—lacks merit under People v. Lewis.
Opinion
Filed 12/20/22 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, D080896
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, William S. Lebov, Judge. (Retired Judge of the Yolo Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) 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 found Meikel Jerome Cooper guilty of second degree murder (Pen. Code,1 § 187, subd. (a)), attempted voluntary manslaughter (§§ 664 & 192), and shooting into an inhabited building (§ 246). The jury 1 All further statutory references are to the Penal Code. found true firearm allegations under sections 12022.53, subdivision (c) and 12022.5, subdivision (a). The court sentenced Cooper to an indeterminate term of 42 years to life. Cooper appealed and this court affirmed the convictions in an unpublished opinion. (People v. Cooper et al. (Mar. 8, 2011, D058080).) In 2019, Cooper filed his first petition for resentencing under former section 1170.95 (renumbered 1172.6). The trial court denied the petition finding that Cooper, the actual shooter, was not eligible for relief. This court affirmed the denial of Cooper’s petition in an unpublished opinion. (People v. Cooper (May 13, 2022, D079588).) Undaunted, Cooper filed a second petition for resentencing under section 1172.6. The court again, appointed counsel, reviewed the record and held a hearing. Once again, the court denied the petition. At the hearing the following discussion took place: “[THE PROSECUTOR]: Based upon the materials that I provided [defense counsel]–the jury instructions were in imaging–nothing on natural and probable consequences or felony murder were given to the defendant’s jury. He was the actual shooter. So at this point in time, we’d ask that the petition be denied.
“THE COURT: [Defense counsel]?
“[DEFENSE COUNSEL]: Your honor, I have confirmed everything that [the prosecutor] just referred to, and I’ll submit.
“THE COURT: Thank you. Petition is denied.”
Once again, Cooper filed a notice of appeal challenging the denial of his resentencing petition. 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 2 arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Cooper the opportunity to file his own brief on appeal, but he has not responded. We will not include a statement of facts in this opinion since we discussed the facts of the offenses in the original appeal. 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 a possible issue which was considered in evaluating the potential merits of this appeal: Whether the court erred in relying on the oral representations of counsel to deny Cooper’s petition. We have reviewed the record for error 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. DISPOSITION The order denying Cooper’s second petition for resentencing under section 1172.6 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
DO, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12