In re Cooper

Decision Date27 July 2007
Docket NumberNo. A116437.,A116437.
CourtCalifornia Court of Appeals Court of Appeals
PartiesIn re Peter George COOPER, on Habeas Corpus.

Rogers Joseph O'Donnell, William Bennett Turner, San Francisco, Under appointment by the Court of Appeal, for Petitioner Peter George Cooper.

Edmund G. Brown, Jr., Attorney General of the State of California, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Anya M. Binsacca, Supervising Deputy Attorney General, Amber N. Wipfler, Deputy Attorney General, for Respondent Governor Arnold Schwarzenegger.

LAMBDEN, J.

On February 16, 2006, the Board of Prison Terms (Board) found Peter George Cooper suitable for release on parole. Cooper was serving an indeterminate prison term of 16 years to life for his conviction of second degree murder with use of a deadly weapon (Pen.Code, §§ 187, 12022, subdivision (b)). He entered prison on July 16, 1987, and his minimum eligible parole date was July 24, 2001. Governor Arnold Schwarzenegger reversed the Board's grant of parole, finding that the commitment offense was particularly heinous, leading him to conclude that Cooper's present release posed an unreasonable public safety risk.

Cooper filed a petition for writ of habeas corpus in this court, requesting that we reinstate the Board's grant of parole. We issued an order to show cause, and appointed counsel for Cooper. We conclude that some evidence did not support the Governor's decision to reverse the Board's grant of parole. (See, e.g., In re Rosenkrantz (2002) 29 Cal.4th 616, 677, 128 Cal. Rptr.2d 104, 59 P.3d 174 (Rosenkrantz).) Additionally, the Attorney General concedes that it cannot specify what documents were actually reviewed by the Governor. This admission raises serious due process questions. However, since we have the entire record before the Board and our review of this record indicates that there is no evidence to support a decision other than the one reached by the Board, a remand to the Governor in this case would be pointless. We therefore grant Cooper's petition for habeas corpus relief and reinstate his Board's grant of parole.

BACKGROUND
Commitment Offense

After graduating from a university with a four-year degree in 1978, Cooper worked in computer applications and systems programming. From 1985 until his arrest in November 1986, Cooper was self-employed as an independent consultant.

In 1981, Cooper developed a drinking problem, which worsened over the next couple of years. During the summer of 1984, he attended Alcoholics Anonymous (AA) meetings and entered a 30-day residential program at a San Francisco hospital.

Cooper again began drinking and, in February 1985, he was convicted of drunk driving for driving with blood alcohol of 0.26 percent. Cooper was placed on three years probation. He completed the First Offender Program and paid his fine.

In June 1986, Cooper married Joan Harwitt (Joan). About one month later, on July 20, Cooper suffered a seizure at his home. This seizure was caused by his attempt to detoxify without any medical supervision after a period of especially heavy drinking. Cooper was admonished that another seizure could be fatal.

Cooper quit drinking and, after six days as an inpatient, entered the hospital's outpatient rehabilitation program. The fourday-a-week program included counseling, stress management sessions, and family sessions, which included Joan. Cooper also attended AA meetings.

On November 16, 1986, Cooper and Joan were in the kitchen of their home; Joan asked him to hug her. He stroked her back; she responded by asking him if he wanted to go upstairs to bed. He tensely responded, "No, absolutely not." Cooper noticed Joan's eyes tear and he left the kitchen and went upstairs to his office. He returned to the kitchen about 15 or 20 minutes later and stated that he would work on some shelves for the garage. Both Joan and Cooper went to the garage. He propped open the door between the garage and den with a 48-ounce sledgehammer, which he had removed from a closet.

After some discussion, Cooper and Joan returned inside the house and Cooper picked up the sledgehammer. Joan came up behind him and the two embraced. As they hugged, Joan became aroused and began fondling him. He asked her to stop, which angered her. She pushed away and yelled at him that he did not want her. She asked him if he would ever "be a man" to her again. Joan blamed Cooper's alcoholism treatment on his sexual problems and began to berate him and complain about his lack of sexual intimacy. She asked him if he needed a "bottle to want to fuck" her. She yelled at him that he was not a man and that he was "nothing but a rubber dick queer." Joan continued: "You've known all along you were a queer, your mother told you, you were a queer.... You're nothing but a limp dick, your mother told you, you are a queer and I should tell your mother she was right." Joan's yelling went on for about 10 minutes. Cooper had his back to the garage door and Joan paced up and down in front of him.

Cooper became angry when Joan called him a "queer," but he asserted that Joan's threat to tell his mother was "catastrophic." He became enraged and fearful that she might tell his mother. He began to scream back and told her that he was not going to take it anymore. Joan proceeded to tell him: "Why don't you just go out and get a queer little boy just like you. Why don't you go out and get a queer little boy and suck it off?"

As Joan paced towards the den, Cooper rushed behind her carrying the sledgehammer and, with a swinging downward blow to the back of her head and neck, knocked her down with the sledgehammer. While Joan remained on the ground, Cooper went up to her and struck her neck with the sledgehammer five or six times.

Cooper dropped the sledgehammer and ran upstairs. After he regained his composure, he returned downstairs. He examined Joan and concluded she was dead.

An autopsy established that Joan died of spinal shock from blunt trauma injuries to the back of the neck. She also had a bruise in the pubic region consistent with being kicked or hit there. She also had bruises to her head and chin. She lived for up to 20 or 30 minutes after suffering the injuries and might have survived with immediate medical attention.

Cooper placed Joan's body, purse, and eyeglasses into the trunk of her car and drove to the airport. He left the car in the airport parking garage after wiping his fingerprints off the steering wheel. He took a cab to a hospital and then took another cab home from the hospital.

Once Cooper returned home, he cleaned the bloodstain off the den carpet. Later he removed the portion of the carpet that had the bloodstain and replaced it. He covered the replaced carpet with a sofa.

The following evening, on November 17, 1986, Cooper reported to the police that Joan had not returned from a shopping trip. Cooper told friends and Joan's family essentially the same story. After a number of interviews with the police over the course of a few days, Cooper confessed to the killing on November 21.

The Trials, Convictions, and Appeals

A jury convicted Cooper of second degree murder, and he appealed from the judgment. In a nonpublished decision we vacated the judgment because the trial judge had prejudicially responded to jury questions about manslaughter and murder without the presence of either party's counsel.

A second jury trial resulted in a verdict of guilt for second degree murder (§ 187) of Cooper's wife. The jury also found true allegations of deadly weapon use (a sledgehammer) and great bodily injury (§§ 12022, subd. (b), 1203.75, subd. (a)(1)). The trial court sentenced defendant to 15 years to life plus a one-year enhancement for use of a deadly weapon. Cooper appealed and we affirmed in a nonpublished decision.

In-Prison Behavior

During the entire time he has been incarcerated, Cooper has not received any violation reports, either serious or administrative. He has attended AA meetings and a number of other self-help groups, such as stress management, anger management, and breaking barriers. Cooper has the lowest custody classification permitted for prisoners with a life term.

The Governor summarized Cooper's behavior while incarcerated as follows: Cooper "has made efforts to enhance his ability to function within the law upon release. He has upgraded vocationally, gaining and sharpening marketable skills, in particular in the fields of Radiological Technologist, X-Ray Technician, Nursery Operator, Landscaping and Horticulture, Silk Screen, and Grading/Marketing Training. He has held skilled jobs within the institutional setting and has participated in Hospice Volunteer Training, Blind Project, and the Pastoral Care Services Program, among others, receiving positive reports from institutional staff. He has availed himself of an array of self-help and therapy, including Understanding and Handling Addiction, Anger—Creating New Choices, Breaking Barriers, Criminon—The Way to Happiness, Friend Outside, Creative Conflict Resolution/Anger Management Workshop, IMPACT Workshop, Alcoholics Anonymous, Narcotics Anonymous, V.O.L.T., Victim/Offender Reconciliation Group, The Complete Idiot's Guide to Managing Stress, Men's Violence Prevention Seminar, Impact of Victims of Crime, Stress Management, Conflict Resolution, Parenting Skills, Values Clarification Workshops. Likewise, he has received favorable evaluations from various correctional and mental-health professionals and has made realistic, confirmed parole plans that include housing options, substance-abuse-prevention support, and a lined-up job interview...."

Board Hearing in 2006

On February 16, 2006, Cooper represented himself at his hearing before Presiding Commissioner Tracey St. Julien and Deputy Commissioner Bruce Mitchell. The Board considered Cooper's score of 80 on the Global Assessment and Functioning Scale. The...

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