P. v. Cooper

Filed 7/28/20 P. v. Cooper CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
DASEAN COOPER,
Defendant and Appellant.
B303284
(Los Angeles County
Super. Ct. No. YA016132)
Appeal from a judgment of the Superior Court of Los Angeles
County, Alan B. Honeycutt, Judge. Affirmed.
Lenore De Vita, 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, Idan Ivri and Michael C. Keller, Deputy Attorneys General, for
Plaintiff and Respondent.

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Appellant DaSean Cooper appeals from the summary denial of his
petition for resentencing under Penal Code section 1170.95.1 In a prior
appeal, we affirmed appellant’s conviction of first-degree murder with a
finding that he personally used a firearm. In ruling on the section
1170.95 petition, the trial court relied the record of conviction to
conclude that appellant was ineligible for resentencing under section
1170.95 as a matter of law, because he was convicted as an actual killer
under a theory of premeditated murder.
In this appeal, appellant contends the trial court erred in
summarily denying his petition without appointing counsel because
(1) his petition stated a prima facie case for relief, and a section 1170.95
proceeding is a “special proceeding” in which the trial court has no
inherent discretion to deny relief if a petition states such a case; (2) it
was improper for the trial court to rely on the record of conviction in its
determination to deny his petition; and (3) his federal and state
constitutional rights were violated. We are not persuaded. Because the
record of conviction shows that appellant is ineligible for relief under
section 1170.95 as a matter of law, we affirm the judgment.
BACKGROUND
The summary of the factual background is based on our earlier
opinion affirming appellant’s conviction, People v. Cooper [nonpub. opn.,
filed Oct. 23, 1996], case No. B092651].
I. The Murder
1 All further section references are to the Penal Code.

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The murder victim, Scott Charles (Pearl) was shot and killed on
June 20, 1993. Pearl lived with Kristi Laurent at Kristi’s house on
Thoreau Street in Los Angeles with Kristi’s son, her brother Craig, and
Dion Cormia. At that time, appellant had been dating Kristi for about a
year, and was acquainted with Pearl.
Around midnight on the night of June 19, 1993, appellant had an
argument with Kristi about rumors regarding his infidelity. Appellant
confronted Pearl and three of Pearl’s friends in the driveway. Appellant
punched one of Pearl’s friends in the face, and a fight ensued, shortly
after which Pearl and his friends ran inside the house. Appellant left
the scene stating he would come back “strapped.”
Appellant returned to the scene about four minutes later. Pearl
was a passenger in a car belonging to witness Raymond Hayward, who
was attempting to back out of the driveway. Appellant used his car to
block Hayward’s car. Then he and two of his friends approached
Hayward’s car. Appellant pulled a semi-automatic handgun out of his
waistband and pointed it at Pearl. Shortly afterward, he began
shooting at Pearl and the other passengers in Hayward’s car.
Pearl was struck in the back with a bullet as he attempted to run
away. Hayward attempted to pick him up, but appellant kept shooting
and Hayward left the scene. Appellant and his friends approached
Pearl, and Pearl pleaded, “Don’t do it.” Appellant’s friends began to
leave, and appellant said, “No. Fuck that. Unload on him.” He then
shot Pearl four more times.
II. The Conviction and Appeal

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Appellant was convicted of first-degree murder under section 187,
and the jury made a true finding under section 12022.5, subdivision (a)
that appellant personally used a firearm. He was sentenced to 29 years
to life. On appeal of his conviction, appellant challenged, among other
things, the sufficiency of the evidence to prove that he acted with
premeditation and deliberation, and he argued that the use of a weapon
is not always evidence of a plan to kill.
This Court affirmed the judgment, concluding that the facts
“clearly” supported a premeditated intent to kill. This Court also found
that the use of a weapon could support such an intent in light of the
“manner of killing.”
III. The Section 1170.95 Petition and Proceedings
On September 18, 2019, appellant filed in the trial court a petition
for a writ of habeas corpus. The trial court chose to treat it as a petition
for relief under section 1170.95. The petition stated that appellant was
entitled to resentencing under section 1170.95 because he was convicted
of first-degree murder, the prosecution argued the natural and probable
consequences doctrine at trial, and he was not the actual killer.
Appellant requested appointment of counsel pursuant to section
1170.95, subdivision (c), on the basis that he was indigent and the legal
issues were of a complicated nature such that he could not represent
himself.
On November 13, 2019, the People filed a written response to
appellant’s petition, arguing that appellant was not eligible for
resentencing under section 1170.95 because he was convicted as an

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actual killer under a theory of premeditated murder. The response also
challenged the constitutionality of section 1170.95.
The trial court issued an Order of Dismissal on November 14,
2019, following an in-chambers proceeding at which neither appellant
nor the prosecution was present. The Order stated that a review of the
court file revealed that appellant was not entitled to relief under section
1170.95 as a matter of law, as he was convicted as an actual killer. It
also noted that the jury made a finding under section 12022.5,
subdivision (a) that appellant intentionally and personally discharged a
firearm causing the victim’s death. The trial court did not rule on the
prosecutor’s constitutional question.
Appellant filed a timely notice of appeal on December 13, 2019.
DISCUSSION
Appellant contends that the trial court erred under section
1170.95, and violated his federal and state constitutional right to
counsel, by summarily dismissing his petition for resentencing without
appointing counsel and by relying on the record of conviction. We
disagree.
I. Petitions Under Section 1170.95
By amending sections 188 (defining malice) and 189 (defining the
degrees of murder), Senate Bill No. 1437 (S.B. 1437), effective January
1, 2019, changed “the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that murder
liability is not imposed on a person who is not the actual killer, did not

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act with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human life.”
(Stats. 2018, ch. 1015, § 1, subd. (f).)2
In addition, S.B. 1437 added section 1170.95 (Stats. 2018, ch.
1015, § 4), which allows a person convicted of felony murder, or murder
under the natural and probable consequences doctrine, to “file a petition
with the court that sentenced the petitioner to have the petitioner’s
murder conviction vacated and to be resentenced on any remaining
counts when all of the following conditions apply: [¶] (1) A complaint,
information, or indictment was filed against the petitioner that allowed
the prosecution to proceed under a theory of felony murder or murder
under the natural and probable consequences doctrine. [¶] (2) The
petitioner was convicted of first degree or second degree murder
following a trial . . . . [¶] (3) The petitioner could not be convicted of
2 In amending section 188, S.B. 1437 added the following provision:
“Except as stated in subdivision (e) of Section 189, in order to be convicted of
murder, a principal in a crime shall act with malice aforethought. Malice
shall not be imputed to a person based solely on his or her participation in a
crime.” (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.) S.B. 1437 also added
the following as subdivision (e) of section 189: “A participant in the
perpetration or attempted perpetration of a felony listed in subdivision (a) in
which a death occurs is liable for murder only if one of the following is
proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not
the actual killer, but, with the intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] (3) The person was a major
participant in the underlying felony and acted with reckless indifference to
human life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e);
Stats. 2018, ch. 1015, § 3.)

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first or second degree murder because of changes to Section 188 or 189.”
(§ 1170.95, subd. (a).)
Subdivision (b)(1) of section 1170.95 requires that the petition be
filed with the court that sentenced the petitioner, and must include (a)
a declaration by the petitioner that he or she is eligible for relief under
the section; (b) the superior court case number and year of conviction;
and (c) whether the petitioner requests appointment of counsel.
Subdivision (b)(2) provides that the trial court may deny the petition
without prejudice if any of the information required by subdivision
(b)(1) is missing and cannot be readily ascertained by the court.
(§ 1170.95, subd. (b)(2).)
Subdivision (c)—the provision at issue in this appeal—provides:
“The court shall review the petition and determine if the petitioner has
made a prima facie showing that the petitioner falls within the
provisions of this section. If the petitioner has requested counsel, the
court shall appoint counsel to represent the petitioner. The prosecutor
shall file and serve a response within 60 days of service of the petition
and the petitioner may file and serve a reply within 30 days after the
prosecutor response is served. These deadlines shall be extended for
good cause. If the petitioner makes a prima facie showing that he or
she is entitled to relief, the court shall issue an order to show cause.”
(§ 1170.95, subd. (c).)
The remainder of the statute sets forth the procedure for
responding to, and the hearing on, the order to show cause, as well as
post-hearing matters.

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II. Summary Denial
Appellant contends that the trial court erred by summarily
denying his section 1170.95 petition without appointing counsel. He
asserts that a petition states a prima facie case if the allegations
therein would support a ruling in the petitioner’s favor, that his petition
made such a case, and that because a petition for resentencing under
section 1170.95 is a “special proceeding,” the trial court possessed no
inherent discretion to deny relief. Rather, he argues, the trial court is
statutorily required to appoint counsel and hold a resentencing hearing.
We disagree, as have several courts of appeal considering the
identical contentions. (People v. Lewis (2020) 43 Cal.App.5th 1128,
1137–1140 (Lewis), rev. granted, S260598, March 18, 2020; People v.
Cornelius (2020) 44 Cal.App.5th 54, 58 (Cornelius), rev. granted,
S260410, March 18, 2020; People v. Verdugo (2020) 44 Cal.App.5th 320
(Verdugo), rev. granted, S260493, March 18, 2020.) Although the issues
are now pending before the California Supreme Court, we find the
analysis of these cases persuasive.
As the court in Lewis observed, section 1170.95, subdivision (c)
describes a chronological sequence of actions. This sequence includes
two stages in which the court reviews a “prima facie showing,” one
taking place before briefing and one after. Lewis determined that the
requirement to appoint counsel arises at a specific point in the
sequence, namely, “after the court determines that the petitioner has
made a prima facie showing that petitioner ‘falls within the provisions’
of the statute, and before the submission of written briefs and the

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court’s determination whether petitioner has made ‘a prima facie
showing that he or she is entitled to relief.’” (Lewis, supra, 43
Cal.App.5th at p. 1140.)
In Verdugo, the court explained that section 1170.95, subdivision
(b)(2) describes another stage of proceedings which takes place before
the sequence described in subdivision (c). At this stage, the court “may
deny a petition without prejudice if any of the information required by
subdivision (b)(1) is missing from the petition and cannot be readily
ascertained by the court. This initial review thus determines the facial
sufficiency of the petition.” (Verdugo, supra, 44 Cal.App.5th at pp. 327–
328.) Because of this, review of subdivision (c)’s prebriefing prima facie
showing is not a determination of facial sufficiency, as it would then be
redundant with the stage described in subdivision (b)(2), and courts
have a duty to interpret section 1170.95 “to give meaning to all parts of
the statute to the extent possible.” (Id. at p. 329.)
For the same reason, the Verdugo court found that “the
prebriefing determination whether the petitioner has made a prima
facie showing he or she ‘falls within the provisions of this section’ must
also be different from the postbriefing prima facie showing that the
petitioner ‘is entitled to relief,’” and therefore, that “[t]he midpoint
between section 1170.95, subdivision (b)(2)’s initial finding the petition
is facially sufficient and subdivision (c)’s second prima facie showing the
petitioner is entitled to relief is a preliminary review of statutory
eligibility for resentencing, a concept that is a well-established part of
the resentencing process under Propositions 36 and 47. [Citations.]
The court’s role at this stage is simply to decide whether the petitioner

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is ineligible for relief as a matter of law, making all factual inferences in
favor of the petitioner.” (Verdugo, supra, 44 Cal.App.5th at p. 329.)
Subdivision (c) does not define the process by which the court is to
do this. However, the Verdugo court found that “subdivision (b)(2)
directs the court in considering the facial sufficiency of the petition to
access readily ascertainable information. The same material that may
be evaluated under subdivision (b)(2)—that is, documents in the court
file or otherwise part of the record of conviction that are readily
ascertainable—should similarly be available to the court in connection
with the first prima facie determination required by subdivision (c).”
(Verdugo, supra, 44 Cal.App.5th at p. 329.) If the record of conviction
contains information showing that the petitioner is ineligible for relief
under section 1170.95 as a matter of law, the trial court may rely on
such information to dismiss the petition.
Following the analyses in Lewis and Verdugo, we conclude that
under section 1170.95, the trial court had the authority to determine
that appellant was not eligible for relief as a matter of law without
appointing counsel. The trial court found upon reviewing the record
that appellant was convicted as an actual killer, and that the jury found
that appellant personally used a firearm. The record also shows that
this Court, on appeal from appellant’s conviction, found that the
evidence “clearly support[ed] a premeditated intent to kill.” As
appellant was not convicted under the felony murder rule or on a theory
of natural and probable consequences, he was not eligible for
resentencing under section 1170.95 as a matter of law. Therefore, the
trial court properly denied the petition without appointing counsel.

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Appellant contends that the court erred in relying on appellant’s
record of conviction in determining that summary denial was proper.
He argues that because section 1170.95 only refers to the “record of
conviction” in subdivision (d)(3), reliance on the record of conviction by
the trial court at any earlier stage in a section 1170.95 proceeding is
improper. Also, he asserts that allowing the trial court to scrutinize the
record of conviction at an earlier stage would require section 1170.95
petitioners to plead facts explaining why they can no longer be
convicted of murder, and argues that this would be improper because
section 1170.95 does not put petitioners on notice of this requirement.
We are not persuaded.
As discussed, the Verdugo court explained that at the first stage of
proceedings described in section 1170.95 subdivision (c), the trial court
may rely on information readily ascertainable in the record of
conviction. Moreover, prior to the evidentiary hearing described in
section 1170.95 subdivision (d), the trial court cannot rely on facts other
than those readily ascertainable from the record. (People v. Drayton
(2020) 47 Cal.App.5th 965, 980 (Drayton).) The Drayton court
concluded that in a section 1170.95 proceeding, “when assessing the
prima facie showing, the trial court should assume all facts stated in
the section 1170.95 petition are true. [Citation.] The trial court should
not evaluate the credibility of the petition’s assertions, but it need not
credit factual assertions that are untrue as a matter of law—for
example, a petitioner’s assertion that a particular conviction is eligible
for relief where the crime is not listed in subdivision (a) of section
1170.95 as eligible for resentencing. Just as in habeas corpus, if the

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record ‘contain[s] facts refuting the allegations made in the petition . . .
the court is justified in making a credibility determination adverse to
the petitioner.’ [Citation.] However, this authority to make
determinations without conducting an evidentiary hearing pursuant to
section 1170.95, subd[ivision] (d) is limited to readily ascertainable facts
from the record (such as the crime of conviction), rather than
factfinding involving the weighing of evidence or the exercise of
discretion (such as determining whether the petitioner showed reckless
indifference to human life in the commission of the crime).” (Ibid.)
We agree with the analysis in Drayton that, at stages of section
1170.95 proceedings prior to the evidentiary hearing described in
subdivision (d), the information the trial court may rely upon is limited
to that which is readily ascertainable from the record. Also, where the
record contains facts which contradict the allegations in the petition, as
a matter of law, the court has the authority to disregard the allegations
and deny relief.
Appellant argues that he had a federal and state constitutional
right to counsel, because a proceeding under section 1170.95,
subdivision (c) is a “critical stage” of his criminal prosecution. Because
this issue was raised for the first time in appellant’s reply brief, it is
forfeited on appeal. (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d
1002, 1010 [“The salutary rule is that points raised in a reply brief for
the first time will not be considered unless good cause is shown for
failure to present them before”]) In any event, it is meritless.
Appellant asserts that a right to counsel exists “at all critical
stages of a criminal prosecution, including sentencing.” (People v.

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Doolin (2009) 45 Cal.4th 390, 453.) However, what is at issue in this
case is appellant’s resentencing, not his sentencing as a stage of a
criminal prosecution. The California Supreme Court has explained that
when a defendant who petitions for resentencing is found ineligible, the
decision “does not increase the petitioner’s sentence; it simply leaves the
original sentence intact.” (People v. Perez (2018) 4 Cal.5th 1055, 1064.)
Statutory provisions which entitle defendants to petition for
resentencing, but do not increase their original sentence, do not
constitute sentencing hearings so as to create a constitutional
entitlement to counsel.
Furthermore, section 1170.95, subdivision (c) does not create a
“critical stage” of proceedings. A “critical stage” is one where “‘potential
substantial prejudice to defendant’s rights inheres in the [particular]
confrontation and the ability of counsel to help avoid that prejudice.’
. . . ‘“The essence of a ‘critical stage’ is . . . the adversary nature of the
proceeding, combined with the possibility that a defendant will be
prejudiced in some significant way by the absence of counsel.”’” (People
v. Rouse (2016) 245 Cal.App.4th 292, 297.) Although the trial court in
this case did not dismiss appellant’s petition until after the People had
submitted a brief in response, we do not find that the absence of counsel
at the stage of dismissal was prejudicial to appellant. As discussed, a
trial court in a section 1170.95 proceeding is limited as to what
information it may use to make a determination prior to the evidentiary
hearing described in subdivision (d). (Drayton, supra, 47 Cal.App.5th at
p. 980.) As the trial court found appellant ineligible for relief under
section 1170.95 as a matter of law based solely on the information it

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was entitled to rely on, neither the absence of counsel for appellant nor
receiving the People’s brief affected the trial court’s determination. In
short, the proceeding was not a critical stage.3
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
COLLINS, J.
3 Because we resolve the case on this basis, we need not consider the
parties’ contentions whether the harmless error doctrine applies to the
supposed error in not appointing counsel.

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