People v. Cooper CA1/4 ( 2021 )

Filed 3/16/21 P. v. Cooper CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A160515
v.
DERRICK ANTOINE COOPER, (Contra Costa County
Super. Ct. No. 05-131866-6)
Defendant and Appellant.
In 2017, this court affirmed Derrick Antoine Cooper’s conviction of first
degree murder (Pen. Code,1 § 187) but remanded the case for limited purposes
that included considering whether to strike an enhancement. (People v.
Cooper (Dec. 5, 2017, A143556 [nonpub. opn.]) (Cooper I).) On remand, the trial
court declined to strike the enhancement. Cooper appealed from that order in
July 2019. In October 2020, this court issued an opinion affirming that order
(People v. Cooper (Oct. 15, 2020, A158253 [nonpub. opn.]) (Cooper II)).
While the Cooper II appeal was pending, Cooper filed a petition in the
trial court pursuant to newly enacted section 1170.95, which authorizes
resentencing of persons convicted of felony murder or murder on a theory of
natural and probable consequences under circumstances that do not support a
conviction under sections 188 and 189 as modified by Senate Bill No. 1437,
1 All statutory references are to the Penal Code.
1
effective January 1, 2019. In June 2020, while Cooper II was still pending,
the trial court issued an order denying the section 1170.95 petition. Cooper
appeals, contending the order is void because the pendency of the Cooper II
appeal deprived the trial court of jurisdiction to resolve his section 1170.95
petition. The Attorney General urges this court to affirm the order but
despite practical advantages of reviewing the merits of the order at this
point, the trial court lacked jurisdiction to issue it, so that we must remand
with directions to vacate the order.
Factual and Procedural History
This court’s 2017 opinion affirming Cooper’s conviction (Cooper I)
describes how Cooper and codefendants James Green and Antwone Johnson,
who belonged to a street gang, killed Lincoln Plair, who they mistakenly
assumed to be a member of a rival gang. Cooper and Johnson, each armed,
walked toward Plair, who was washing a car on the sidewalk. Multiple shots
were fired, killing Plair. Cooper later discovered that his gun had jammed.
The information charged each defendant with murder (§ 187) and
alleged as an enhancement that each personally and intentionally fired a gun
causing great bodily injury or death, and was vicariously responsible for
another defendant having done so (§ 12022.53, subds. (d)–(e)). The jury found
Cooper guilty of murder, found not true the allegation that he personally
fired a gun (§ 12022.53, subd. (d)), but found true the allegations that the
murder was committed to benefit a street gang (§ 186.22, subd. (b)(1)) and that
a principal fatally fired a gun (§ 12022.53, subd. (d)). Those findings subjected
Cooper to a vicarious firearm-use enhancement. (§ 12022.53, subd. (e)(1).)
The court sentenced him to 25 years to life on the murder count and a
consecutive term of 25 years to life on the enhancement.
2
Our December 2017 opinion in Cooper I affirmed the conviction but
remanded the case to the trial court for two limited purposes: to hold a
“Franklin hearing” to generate a record of information that may assist the
Board of Parole Hearings at a future youthful-offender parole hearing (see
People v. Franklin (2016) 63 Cal.4th 261, 283–284) and to determine whether
the court should in the interest of justice strike the firearm enhancement
imposed pursuant to section 12022.53.
On remand, the trial court denied the request to strike the
enhancement and reimposed the original sentence. (§ 12022, subd. (a)(1)).
Cooper promptly appealed and in October 2020 this court issued its opinion
in Cooper II affirming the order. After the Supreme Court denied a petition
for review, we issued a remittitur in February 2021.
In early 2020, while the Cooper II appeal was pending, Cooper
evidently tried to file in the trial court a petition for resentencing pursuant to
section 1170.95. The record does not include a file-stamped copy of that
petition but does include a notice and request for ruling that Cooper filed in
May 2020, which asserts that he had filed a resentencing petition in
February or March. Attached to the May 2020 notice is a form petition for
resentencing, which Cooper filled out by checking boxes next to recitals of the
prerequisites for relief under section 1170.95.2
On May 29, 2020, the court held a conference with the deputy district
attorney who had prosecuted Cooper and an alternative deputy public
defender who has represented him in posttrial matters. After noting that the
court had not received a copy of the resentencing petition before Cooper filed
2 The petition attached to the notice is dated May 13, 2020. It thus
appears that Cooper filled out a new copy of the form petition on that date,
rather than attaching to the notice a photocopy of the form that he had
previously attempted to file.
3
the May 2020 notice, the court tentatively ruled that the petition failed to
make a prima facie showing of eligibility for relief. On June 2, 2020, the court
issued an order holding that Cooper “has not made a prima facie showing
that he falls within the provisions of [section] 1170.95” and denying the
petition.
On June 15, the court ordered certain fines deleted from Cooper’s
sentence pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157, disagreed
with by People v. Kopp (2019) 38 Cal.App.5th 47, 96–97, review granted
Nov. 13, 2019, S257844, and issued a new abstract of judgment reflecting the
deletion. Shortly thereafter, Cooper filed a timely notice of appeal from the
order denying his section 1170.95 petition.
Discussion
In a 2015 decision addressing section 1170.18 (enacted by Proposition
47), the Third District Court of Appeal summarized the principles relevant to
a trial court’s jurisdiction to consider a resentencing petition during the
pendency of an appeal involving the petitioner’s sentence. (People v.
Scarbrough (2015) 240 Cal.App.4th 916, 923 (Scarbrough).) According to the
court, “ ‘[T]he filing of a valid notice of appeal vests jurisdiction of the cause
in the appellate court until determination of the appeal and issuance of the
remittitur.’ [Citations.] This rule protects the appellate court’s jurisdiction by
[preserving] the status quo so that an appeal is not rendered futile by
alteration. [Citations.] As a result of this rule, the trial court lacks jurisdiction
to make any order affecting a judgment, and any action taken by the trial
court while the appeal is pending is null and void. [Citation.] [¶] There are
limited exceptions to this jurisdictional divestment. For instance, the trial
court may, while an appeal is pending, vacate a void judgment, correct an
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unauthorized sentence, or correct clerical errors in the judgment.”3 (Id. at
p. 923.)
Cooper and the Attorney General both quote Scarbrough, and neither
disputes its summary of the governing principles. The Scarbrough court
applied those principles to conclude that, while a defendant’s appeal was
pending from the sentence imposed on her felony convictions for drug
possession, the trial court lacked jurisdiction to consider her section 1170.18
petition. (Scarbrough, supra, 240 Cal.App.4th at pp. 920, 924–930.) The trial
court had issued a resentencing order, which was therefore void. (Id. at
p. 920.)
People v. Martinez (2019) 31 Cal.App.5th 719, cited by Cooper, also
supports his contention that the trial court lacked jurisdiction to rule on the
section 1170.95 petition. In 2018, while an appeal was pending from the
defendant’s murder conviction, Martinez filed a supplemental brief seeking
relief based on the changes to the law of accomplice liability for murder made
by newly enacted Senate Bill No. 1437. In holding that the Legislature did
not intend those changes to apply retroactively to nonfinal convictions on
direct appeal, the court stated, “Once a notice of appeal is filed, jurisdiction
vests in the appellate court until the appeal is decided on the merits and a
remittitur issues. [Citations.] But a defendant retains the option of seeking to
stay his or her pending appeal to pursue relief under Senate Bill 1437 in the
trial court. A Court of Appeal . . . can order the pending appeal stayed with a
3 Other exceptions allow a trial court (1) to order “[c]orrections to errors
in the calculation of presentence custody credits” (Scarbrough, supra,
240 Cal.App.4th at p. 923), (2) to recall a sentence within 120 days of
imposition “for reasons rationally related to lawful sentencing” and to
resentence the defendant (id. at pp. 923–924, citing § 1170, subd. (d)), or
(3) to consider, subject to certain limitations, a habeas corpus petition (id. at
p. 924).
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limited remand to the trial court for the sole purpose of permitting the trial
court to rule on a petition under section 1170.95.” (Martinez, supra, at
p. 729.) Martinez thus highlights the fact that, absent such a stay, an appeal
deprives the trial court of jurisdiction to rule on a section 1170.95 petition.
The Attorney General accurately quotes Scarbrough for the proposition
that “during the pendency of an appeal, the trial court may ‘vacate a void
judgment, correct an unauthorized sentence, or correct clerical errors in the
judgment,’ including ‘corrections to errors in the calculation of presentence
custody credits.’ ” (Scarbrough, supra, 240 Cal.App.4th at p. 923.) However,
neither authority nor logic supports the Attorney General’s assertion that
“fairly included among this list is the trial court’s ability to consider a section
1170.95 petition during the pendency of an appeal involving a Franklin
hearing.” Aside from the fact that the appeal in Cooper II raised no issues
concerning the Franklin hearing, the section 1170.95 petition does not
challenge a void judgment4, seek to correct an unauthorized sentence,5 or
request correction of clerical errors in the judgment. The Attorney General
does not argue otherwise.
The Attorney General points by analogy to Code of Civil Procedure
section 916, subdivision (a), which states that “the perfecting of an appeal
4 Under the “void judgment” exception to the rule of jurisdictional
divestment, a trial court “is allowed to vacate a void—but not voidable—
judgment”; a judgment “is void rather than voidable only if the trial court
lacked subject matter jurisdiction.” (People v. Malveaux (1996) 50 Cal.App.4th
1425, 1434.) Senate Bill No. 1437 obviously did not retroactively divest the
trial court of subject matter jurisdiction over Cooper’s criminal prosecution.
5Cooper’s section 1170.95 petition contends that his conduct cannot
support a conviction of murder under current law. The petition does not
contend that a term of 25 years to life in prison is an unauthorized sentence
for murder if the legal theory underlying his murder conviction remains valid.
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stays proceedings in the trial court upon the judgment or order appealed from
or upon the matters embraced therein or affected thereby.” Whether or not
Cooper’s section 1170.95 petition involves matters “embraced” in or
“affect[ing]” the issues in the Cooper II appeal, Code of Civil Procedure section
916, is within the title governing “appeals in civil actions.” (Code Civ. Proc.,
pt. 2, tit. 13.) The jurisdictional principles applicable in these criminal
proceedings, as summarized in Scarbrough, dictate that the order purporting
to resolve Cooper’s section 1170.95 petition is void for lack of jurisdiction.6
The Attorney General concludes by stating that accepting appellant’s
position will “result in a waste of judicial resources and . . . further delay in
the finality of judgment the victim’s family deserves.” We note that Cooper
filed his brief demonstrating the trial court’s lack of jurisdiction in November
2020. If the Attorney General had responded by promptly filing a confession
of error, the case could have been remanded to the trial court without further
delay. In any event, the rules governing jurisdiction are not subject to ad hoc,
case-by-case exceptions created to serve perceived short-term efficiency. (See,
e.g., Kurwa v. Kislinger (2013) 57 Cal.4th 1097, 1107.) Despite the apparently
pointless efforts involved, we have no choice but to order vacation of the void
orders.
Disposition
The matter is remanded with directions to vacate the order filed on
June 3, 2020, denying Cooper’s petition pursuant to section 1170.95. The trial
6 The Attorney General briefly asserts that Cooper “has forfeited his
right to claim the trial court lacked jurisdiction.” But defects in subject-
matter jurisdiction cannot be waived, let alone forfeited. (People v. Alanis
(2008) 158 Cal.App.4th 1467, 1473 [“ ‘[s]o complete is this loss of jurisdiction
effected by the appeal that even the consent of the parties has been held
ineffective to reinvest the trial court with jurisdiction over the subject matter
of the appeal and . . . an order based upon such consent would be a nullity’ ”].)
7
court is also directed to vacate the order and amended abstract of judgment
filed on June 15, 2020, that deleted restitution fines from Cooper’s sentence.
The trial court should reconsider all such matters after the issuance of a
remittitur in this appeal has reinvested it with jurisdiction to do so.
POLLAK, P. J.
WE CONCUR:
STREETER, J.
TUCHER, J.
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