In re Cooper, A112947 (Cal. App. 4/27/2007)

• Decision Date: 27 April 2007
• Docket Number: A112947
• Court: California Court of Appeals Court of Appeals
• Parties: In re TYRONE COOPER, on Habeas Corpus.

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In re TYRONE COOPER, on Habeas Corpus.

A112947

Court of Appeals of California, First Appellate District, Division Two

April 27, 2007

NOT TO BE PUBLISHED

Appeal from the San Francisco County Super. Ct. No. 174197.

HAERLE, J.

I. INTRODUCTION

Pursuant to Penal Code, section 1506,¹ the People appeal from a habeas corpus order overturning Tyrone Cooper's 1999 conviction for felony assault with an enhancement for personal infliction of great bodily injury and vacating Cooper's sentence in a 2000 case because it was based, in part, on the 1999 prior conviction. The trial court granted Cooper's habeas petition because it found that Cooper was denied the effective assistance of counsel in his 1999 case. We reverse.

II. STATEMENT OF FACTS

A. The 1999 Case

In 1999, Cooper was charged with assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), and battery causing serious bodily injury (§ 243, subd. (d)). (S.F. Super. Ct., No. 174197.) As to both counts, it was alleged that Cooper personally inflicted great bodily injury on his victim (§ 12022.7).

At a March 3, 1999, preliminary hearing, Mahmoud Qanawi testified that Cooper attacked him on the morning of January 26, 1999. Qanawi was standing alone on the corner of Jones and Ellis at approximately 2:55 a.m. Cooper ran up to him, saying "Fuck you, son of a bitch," or "fuck you, bitch" and punched him in the face three times, hitting him in the nose and eye with a closed fist. Qanawi felt blood on his face and in his mouth.

Qanawi testified that, a few minutes before he saw Cooper coming toward him, two men came up behind him and somebody touched the wallet in his pocket. Qanawi turned to look and asked "why you touch my pocket." When he turned back, Cooper was approaching him. When Qanawi called out for help, a police officer was already coming toward him. Cooper was arrested and Qanawi was taken to the hospital where his treatment included eleven stitches to close a cut above his left eye. Photos of Qanawi's injuries that were taken two days after the attack were admitted into evidence at the preliminary hearing.

At the conclusion of the preliminary hearing, the Honorable Perker L. Meeks, Jr. ordered that Cooper be held for trial on both the assault and battery charges. However, the court also made the following statement: "Counsel, I don't know if I am supposed to make a finding of this great bodily injury allegation. And in finding of great bodily injuries, I have reviewed the photographs, and I saw Mr. Qanawi's face. It appears it is all healed. I don't know what you call great bodily-injury. There doesn't appear to be anything but a cut over the eye." This remark was followed by a brief discourse with both counsel during which the magistrate acknowledged that great bodily injury is a "relative term" but shared that, based on his own experience, he did not see this injury as a great bodily injury. At the conclusion of the hearing, the following exchange occurred:

"The Court: I don't see it. I mean, maybe I don't need to find it — if it was up to me, I wouldn't find it. But somebody may. Since I don't have to make a finding on that, I won't. My finding would be: there was injury. But — it wasn't great. It was — and I guess anybody who gets stitches, you think is great. But you know — looks to me like it was just a —

"[Prosecutor]: So you are not making a finding at all, one way or another.

"The Court: As far as I am concerned, there wasn't any, but you don't need my decision on it. Anyway . . . I think that is something just for enhancement."

On May 3, 1999, Cooper pled guilty to the assault charge and admitted that, during the commission of this offense he personally inflicted great bodily injury upon the person of Mahmoud Qanawi. Both the prosecutor and defense counsel expressly stated that there was a factual basis for this plea and admission. In exchange for Cooper's plea, the prosecutor dismissed the battery charge and agreed to a disposition of a suspended five-year prison sentence and three years probation.

Before it accepted Cooper's plea, the trial court obtained confirmation directly from Cooper that he knew he would be pleading to a strike charge, that he understood the "consequences of having two strikes," and that another conviction could result in a sentence of 25 years to life. Defense counsel then stated that he had advised his client that he would be forfeiting several constitutional rights by making a plea and stated several of those rights for the record, including that Cooper had a constitutional right to be tried by a jury. The court then reviewed the terms of the agreed-upon disposition, confirmed with Cooper that he heard and agreed with all of the statements that had been made at the hearing, and then asked Cooper to expressly waive several rights on the record, including his constitutional right to a jury trial.

In accepting Cooper's guilty plea, the trial court found that, "[c]oncerning the whole transaction, the court finds that this defendant was fully advised of his rights, that he understood his rights, that he freely and voluntarily waived his rights and that he entered into the guilty plea and admitted the G.B.I. allegation well knowing the consequences of the entire transaction."

B. The 2000 Case

In 2000, Cooper was charged with robbery (§ 212.5, subd. (c)) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). (S.F. Super. Ct. No. 178189.) It was also alleged that Cooper had two prior strikes although one of the prior conviction allegations was subsequently dismissed pursuant to the prosecutor's motion.

At trial, evidence was presented that, on January 18, 2000, at approximately 11:30 p.m., Charles Corral was leaving a market with snacks and a 12-pack of beer when Cooper approached him and said, "Give me respect, give me my respect." Then Cooper and another man grabbed Corral and dragged him into an alley where Cooper hit Corral twice in the face, threw him to the ground and kicked him twice. Cooper then grabbed Corral's beer and ran down the alley. Several days later, Cooper was spotted in front of the same store and was arrested on an unrelated charge. Corral went to the scene and identified Cooper as his assailant.

After a jury found Cooper guilty of both offenses, he waived his right to a jury trial on the 1999 prior and admitted its truth. However, prior to sentencing, Cooper moved to strike the 1999 prior strike. Cooper argued that the prior was invalid because, when he pled guilty to the assault with the great bodily injury enhancement in the 1999 case, he was not properly advised that he had a right to a jury trial on the enhancement. (See Boykin v. Alabama (1969) 395 U.S. 238 (Boykin); In re Tahl (1969) 1 Cal.3d 122 (Tahl).) The parties stipulated that, were Cooper to testify, he would say that "he would not have admitted the GBI [great bodily injury] allegation had he been informed that the constitutional rights he had with regard to the natural charge, the [Penal Code section ] 245(a)(1), also applied to the GBI allegation as well." Notwithstanding this stipulation, the trial court denied the motion to strike, finding that Cooper did in fact know he was giving up his Boykin-Tahl rights when he entered the plea. Cooper was sentenced to 10 years in prison.

Cooper appealed the 2000 judgment alleging evidentiary error and also that the trial court erroneously denied his motion to strike his prior strike for the 1999 assault. On March 8, 2002, this court affirmed the judgment. In rejecting the claim of error with regard to the 1999 prior strike, we acknowledged that Boykin-Tahl protections applied to Cooper's admission to the section 12022.7 enhancement, but concluded that the trial court could properly have concluded that Cooper failed to carry his burden of proving prejudice. We explained: "We see no reason to disturb the trial court's determination that Cooper's stipulated testimony did not establish a constitutional violation. The court obviously found his statement not credible. The transcript of the hearing on Cooper's 1999 plea contains a thorough description of his constitutional rights and explicit waivers of them. Although neither counsel nor the trial court explicitly stated that these rights and waivers applied to both his section 245, subdivision (a)(1) plea and his admission to the section 12022.7 enhancement, it is difficult to believe that, in the absence of such an explicit statement, Cooper might have been under the impression that he was not entitled to a jury trial on the great bodily injury enhancement. Certainly, there is nothing in the record to indicate he was told he had no such right. The trial court concluded, not unreasonably, that Cooper knew he had a right to a jury trial on both the section 245, subdivision (a)(1), charge and the great bodily injury allegation and that he would not have changed his plea if this had been stated more explicitly."

Although we affirmed the judgment in the 2000 case, we remanded for resentencing because the trial court had failed to impose a mandatory five-year consecutive term for Cooper's serious felony prior conviction pursuant to section 667, subdivision (a)(1).

C. The Present Action

On July 25, 2005, Cooper filed a petition for writ of habeas corpus to vacate the judgment in his 1999 case and the sentence in his 2000 case. Cooper alleged he was entitled to relief on two grounds: (1) he was denied his constitutional right to the effective assistance of counsel in the 1999 case because his counsel failed to file a section 995 motion challenging the sufficiency of the evidence to support the great bodily injury allegation in that case, and (2) the failure to advise him of his Boykin-Tahl rights in the 1999 case resulted in a denial of his constitutional right to a jury trial on the great bodily injury enhancement.

In an order filed September 19, 2005, the trial...