People v. Cooper CA4/1 ( 2014 )

Filed 9/11/14 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, D065534
Plaintiff and Respondent,
v. (Super. Ct. No. SCD139243)
DEANGELO COOPER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Anna M. Jauregui-Law, under appointment by the State of California, for
Defendant and Appellant.
No appearance by Respondent.
In 1999, Deangelo Cooper was convicted in a court trial of possession of a firearm
by a felon. (Pen. Code, § 12021, subd. (a)(1).)1 The court also found true three
serious/violent felony convictions within the meaning of section 667, subdivisions (b)
1 All statutory references are to the Penal Code.
through (i) and one prison prior within the meaning of section 667.5, subdivision (b).
Initially, the court struck two of the three strikes and sentenced Cooper to a seven-year
prison term. As detailed below, in 2001 the court reinstated both strikes as ordered by
this court and imposed an indeterminate sentence of 25 years to life plus one year for the
prison prior.
This appeal arises from the trial court's denial of appellant's petition to modify his
sentence pursuant to section 1170.126. We find no error and affirm.
FACTS AND PROCEDURAL BACKGROUND
The facts concerning appellant's conviction for possession of a firearm by a felon
and the sentencing hearings attendant to that conviction are outlined in detail in three
unpublished opinions issued by this court. (People v. Cooper (Dec. 22, 1999, D033007);
People v. Cooper (Jan. 12, 2001, D035524); People v. Cooper (Oct. 10, 2002, D038322.)
We take judicial notice of those opinions and rely on them to set forth the factual and
procedural backgrounds underlying the current appeal as the record before us is limited to
documents relevant to the petition referenced above. Those prior opinions reveal the
following.
In August 1998, appellant was stopped by police at about 10:30 p.m. because the
light was out over his license plate. He was on parole at the time. The contact ultimately
revealed a nine-millimeter pistol in his waistband. The pistol was fully loaded and
contained 15 rounds of hollow-point ammunition.
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Appellant's criminal history revealed he had suffered three prior strike convictions.
Two were juvenile adjudications, one for attempted robbery with the personal use of a
deadly weapon (a baseball bat), and one for robbery with personal use of a firearm. The
third was for attempted murder of a police officer with the personal use of a firearm.
At appellant's first sentencing hearing in 1999, the trial court (Judge John
Thompson) struck the two prior juvenile adjudications and sentenced Cooper to a
determinate term of seven years, consisting of the upper term of three years for
possession of the firearm, doubled pursuant to section 667, subdivision (e)(1), plus one
year for the prison prior. The People appealed and we reversed the trial court's decision
striking the prior convictions. We determined the trial court had failed to set forth in the
minutes its reasons for dismissing two of appellant's three strikes as required by section
1385. (See People v. Cooper, supra (D033007).) We also questioned whether the trial
court's verbal statement of reasons provided a sufficient basis for such dismissal.
On remand for resentencing, Judge Thompson again dismissed two of Cooper's
three strikes and imposed the same seven-year sentence. The People again appealed and
we reversed, concluding the court abused its discretion in striking the strikes as there was
no basis in the record to support the court's decision. We directed the trial court to
reinstate the serious/violent felony prior convictions and to sentence appellant in
accordance with the three strikes sentencing provisions. (See People v. Cooper, supra
(D035524).) In May 2001, the trial court did so, and imposed an indeterminate sentence
of 25 years to life for the possession of the firearm plus one year for the prison prior.
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Appellant appealed, challenging the new sentence on claims of cruel and unusual
punishment and denial of due process. We rejected both contentions and affirmed the
judgment and sentence. (See People v. Cooper, supra (D038322).)
In November 2012, appellant filed a petition for modification of his sentence
under section 1170.126, commonly referred to as The Three Strikes Reform Act of 2012.
At the hearing on January 14, 2014, Judge David Danielson denied the petition in 2014
on the ground that appellant was statutorily ineligible due to the attempted murder prior
conviction.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth evidence in the superior
court. Counsel presents no argument for reversal, but asks that this court review the
record for error as mandated by People v. Wende (1979) 25 Cal. 3d 436. Pursuant to
Anders v. California (1967) 386 U.S. 738, counsel refers to a possible, but not arguable,
issue of whether the trial court erred in denying appellant's petition for modification of
sentence under section 1170.126.
We granted Cooper permission to file a brief on his own behalf. He responded
with a letter arguing the court erred when it increased his sentence from "7 years to 26 to
life." He maintains his sentence was "called back for re-sentencing" and that under such
circumstances, the court does not have the authority to impose a sentence greater than his
original sentence. As outlined above, the People challenged Cooper's original sentence
of seven years, claiming it was not a lawful sentence. This court concluded Judge
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Thompson's seven-year sentence was unauthorized. We vacated that sentence and
directed the court to reinstate his prior strike convictions. The court did so and then
properly imposed a greater sentence; we affirmed that sentence on appeal. If appellant is
now attempting to challenge that sentence in this appeal, the challenge is untimely and
therefore fails.
If, instead, appellant is attempting to challenge the denial of his petition for
sentence modification, this argument also fails. Following passage of the Three Strikes
Reform Act, a request for sentence modification was filed on appellant's behalf. The
court appointed counsel to represent appellant and to evaluate his eligibility for sentence
modification pursuant to the Three Strikes Reform Act. At the January 14, 2014 hearing,
the court (Judge Danielsen) denied the petition, finding appellant was not eligible for
sentence modification because of his prior conviction for attempted murder. The court's
conclusion was a correct one.
A review of the record pursuant to People v. Wende, supra, 25 Cal. 3d 436 and
Anders v. California, supra, 386 U.S. 738, including the possible issue referred to by
appellate counsel, has disclosed no reasonably arguable appellate issue. Competent
counsel has represented Cooper on this appeal.
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DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.
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