P. v. Cooper

Filed 10/23/20 P. v. Cooper CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
CORY COOPER,
Defendant and Appellant.
B301551
(Los Angeles County
Super. Ct. No. SA034049)
APPEAL from an order of the Superior Court of Los
Angeles County, Lauren Weis Birnstein, Judge. Affirmed.
Mark D. Lenenberg, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen, Deputy Attorney General,
and Charles S. Lee, Deputy Attorney General, for Plaintiff and
Respondent.
* * * * * *

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Cory Cooper (defendant) appeals the trial court’s summary
denial of his motion for relief under Penal Code section 1170.95.1
We conclude there was no error, and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts2
A. The underlying crime
By 2001, defendant had been married to his wife, Kim, for
approximately 14 years. Both while they dated and during their
marriage, Kim suffered head injuries and reported that
defendant had inflicted them. Their marriage ended on October
18, 1998, when Kim died in the couple’s residence as a result of
severe blunt force trauma to her head. She also had several
contusions to her face and scalp consistent with being punched by
fists.
B. Prosecution, conviction and appeal
The People charged defendant with Kim’s murder (§ 187,
subd. (a)).
The matter proceeded to a bench trial. Although defendant
had reported to police that Kim’s fatal injuries were caused by
“three Mexican teenagers” who had mugged her, defendant
testified at trial that Kim suffered her fatal injuries because she
fell and hit her head after he slapped her face two or three times.
The trial court found defendant guilty of second degree
murder based on its finding that he “intentionally beat Kim
brutally with conscious disregard that the beating endangered
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 We draw these facts from our prior, unpublished appellate
opinion affirming defendant’s conviction. (People v. Cooper (May
21, 2001, B143197) [nonpub. opn.].)

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her life.” The trial court sentenced defendant to prison for 15
years to life.
Defendant appealed his conviction and we affirmed in an
unpublished opinion.
II. Procedural Background
On January 8, 2019, defendant filed a petition seeking
resentencing under section 1170.95. In the form petition,
defendant checked the boxes for the allegations that he had been
charged with murder, that he was convicted “pursuant to the
felony murder rule or the natural and probable consequences
doctrine,” and that his murder conviction would be invalid under
the “changes made to Penal Code §§ 188 and 189, effective
January 1, 2019.” He also requested the appointment of counsel.
The People filed a response, arguing solely that section
1170.95 was unconstitutional. The trial court appointed counsel
for defendant, and subsequently issued an order summarily
denying defendant’s petition. Based on the “facts as set forth” in
the prior appellate opinion that showed that defendant’s second
degree murder conviction rested on his acts as “the actual killer,”
the court determined that he was “ineligible for relief under”
section 1170.95.
After we issued an order granting relief from default for the
failure to file a timely notice of appeal, defendant filed this timely
appeal.
DISCUSSION
Defendant argues that the trial court erred in summarily
denying his section 1170.95 petition. Because the resolution of
this argument turns on questions of statutory construction and
the application of law to undisputed facts, our review is de novo.

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(People v. Blackburn (2015) 61 Cal.4th 1113, 1123; Martinez v.
Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018.)
A person filing a petition under section 1170.95 is entitled
to the appointment of counsel, the opportunity for further
briefing and a hearing if, in his petition, he “makes a prima facie
showing that he . . . is entitled to relief” under that section.
(§ 1170.95, subds. (c) & (d); People v. Lewis (2020) 43 Cal.App.5th
1128, 1139-1140, review granted Mar. 18, 2020, S260598 (Lewis);
People v. Verdugo (2020) 44 Cal.App.5th 320, 330, review granted
Mar. 18, 2020, S260493 (Verdugo).) A person is entitled to relief
under section 1170.95 if, as relevant here, (1) “[a] complaint,
information, or indictment was filed against [him] that allowed
the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine,”
(2) he “was convicted of . . . second degree murder following a
trial,” and (3) he “could not be convicted of . . . second degree
murder because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a).) A person may be
convicted of murder, even after the 2019 changes to sections 188
and 189, if he “was the actual killer.” (§ 189, subd. (e)(1).) A
“‘prima facie showing is one that is sufficient to support the
position of the party in question.’” (Lewis, at p. 1137, quoting
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.)
Where a defendant in his petition alleges each element
necessary to make out a prima facie case for relief under section
1170.95, a trial court evaluating whether a defendant has made a
prima facie showing in a section 1170.95 petition is not required
to accept those allegations at face value and may also examine
the record of conviction. (Lewis, supra, 43 Cal.App.5th at p. 1138;
Verdugo, supra, 44 Cal.App.5th at pp. 329-330; People v.

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Tarkington (2020) 49 Cal.App.5th 892, 899-900, 908-909, review
granted Aug. 12, 2020, S263219 (Tarkington); People v. Drayton
(2020) 47 Cal.App.5th 965, 968 (Drayton); People v. Edwards
(2020) 48 Cal.App.5th 666, 673-674, review granted July 8, 2020,
S26481 (Edwards); People v. Torres (2020) 46 Cal.App.5th 1168,
1178, review granted June 24, 2020, S262011 (Torres).) However,
the contents of the record of conviction defeat a defendant’s prima
facie showing only when the record “show[s] as a matter of law
that the petitioner is not eligible for relief.” (Lewis, at p. 1138,
italics added; Verdugo, at p. 333; Torres, at p. 1177; Drayton, at p.
968; see also People v. Cornelius (2020) 44 Cal.App.5th 54, 58,
review granted Mar. 18, 2020, S260410 (Cornelius) [record must
show defendant is “indisputably ineligible for relief”].)
Here, the trial court correctly concluded that defendant did
not make out a prima facie case for relief because the record of
conviction establishes, as a matter of law, that he is not eligible
for relief. That is because the trial court who sat as the trier of
fact found defendant guilty of second degree murder as the
person who “intentionally beat Kim brutally with conscious
disregard that the beating endangered her life.” This finding of
fact necessarily labels defendant as the “actual killer” and hence
ineligible for relief under section 1170.95. (E.g., Cornelius, supra,
44 Cal.App.5th at p. 58 [so holding]; Tarkington, supra, 49
Cal.App.5th at pp. 899, 910 [same].)
Defendant resists this conclusion with what boil down to
two arguments.
First, he argues that a trial court evaluating whether a
defendant has made out a prima facie showing in his section
1170.95 petition should be limited to “the four corners” of the
petition because going “behind the allegations” (1) amounts to an

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impermissible ruling on the merits of the petition that improperly
views the facts in the light most favorable to the murder
conviction and improperly shifts the burden of proof to the
petitioner, and (2) conflicts with one document in the legislative
history of section 1170.95 because that document, in listing the
steps for evaluating a section 1170.95, makes no mention of
summary denial based on the record of conviction. At bottom,
and as he acknowledges, defendant is arguing that Lewis,
Verdugo, Cornelius, Drayton, Edwards, Torres and Tarkington
are “wrongly decided.” Although our Supreme Court has granted
review in these cases, we continue to find them persuasive unless
and until the Supreme Court rules otherwise.
Second, defendant argues that the trial court exceeded the
bounds of proper judicial notice and violated the hearsay rule by
considering the facts set forth in our prior appellate opinion. We
need not confront the totality of this argument because the
summary denial of defendant’s section 1170.95 petition in this
case turns on the trial court’s use of a single fact from the prior
opinion—namely, the prior opinion’s recitation of the basis for the
trial court’s ruling that, as the trier of fact, defendant was guilty
of second degree murder because he “intentionally beat Kim
brutally with conscious disregard that the beating endangered
her life.” That fact is a proper subject of judicial notice as an
“accurate[]” “reflect[ion of] what is in the trial record” and is
properly admitted for “the nonhearsay purpose of determining
the basis of the conviction.” (People v. Woodell (1998) 17 Cal.4th
448, 456-457, 459-461; Lockley v. Law Office of Cantrell, Green,
Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885 [“an
appellate opinion can be admitted to prove th[at] . . . the court
made orders, factual findings, judgments and conclusions of

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law.”]; People v. Franklin (2016) 63 Cal.4th 261, 280 [same];
Kilroy v. State of California (2004) 119 Cal.App.4th 140, 147
[“findings of fact” may be judicially noticed]; Sosinky v. Grant
(1992) 6 Cal.App.4th 1548, 1565 [“it may be proper to take
judicial notice that [a trial judge] did in fact make [a] particular
finding” of fact “after hearing a factual dispute”], italics omitted.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST

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