People v. Cooper

• Decision Date: 01 September 2020
• Docket Number: A156880
• Citation: 54 Cal.App.5th 106,268 Cal.Rptr.3d 417
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard COOPER, Defendant and Appellant.

54 Cal.App.5th 106

268 Cal.Rptr.3d 417

The PEOPLE, Plaintiff and Respondent,

v.Richard COOPER, Defendant and Appellant.

A156880

Court of Appeal, First District, Division 1, California.

Filed September 1, 2020

Counsel for Defendant and Appellant: Eric S. Multhap, under appointment by the Court of Appeal

Counsel for Plaintiff and Respondent: Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Rene Chacon, Supervising Deputy Attorney General, Juliet B. Haley, Deputy Attorney General

Humes, P.J. Defendant Richard Cooper was charged with two counts of murder for participating with another man in the horrific killing of a pregnant woman, Trenda Whitten, in 1994. Cooper ultimately pleaded no contest to one count of second degree murder, and in 1999 he was sentenced to 15 years to life in prison.

Nearly two decades after Cooper's plea, the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill No. 1437), which altered liability for murder under the theories of felony murder and natural and probable consequences. The bill also established a procedure, under newly enacted Penal Code ¹ section 1170.95, for eligible defendants to petition for resentencing. Cooper filed a petition for relief under that statute alleging he pleaded no contest to murder "in lieu of going to trial because [he] believed [he] could have been convicted of 1st or 2nd degree murder at trial pursuant to the felony murder rule or the natural and probable consequences doctrine." He also asked that counsel be appointed for him.

The trial court denied the petition without appointing counsel, concluding that Cooper was "ineligible for resentencing as a matter of law." Relying on the transcript of the preliminary hearing—which Cooper did not stipulate to as the factual basis of his plea—the court concluded that regardless of whether Cooper or the other man was "more culpable" for Whitten's death, Cooper's "murder conviction rests on a valid theory of murder."

On appeal, Cooper claims the trial court erred by summarily denying the petition without appointing counsel. We agree. Earlier this year, the Supreme Court granted review to decide when the right to counsel arises under section 1170.95, subdivision (c) ( section 1170.95(c) ). ( People v. Lewis (2020) 43 Cal.App.5th 1128, 257 Cal.Rptr.3d 265, review granted Mar. 18, 2020, S260598 ( Lewis ).) Pending the Court's decision, we conclude that the right to counsel attaches upon the filing of a facially sufficient petition that alleges entitlement to relief. In so doing, we disagree with decisions of the Courts of Appeal that have held otherwise, including Lewis and People v. Verdugo (2020) 44 Cal.App.5th 320, 257 Cal.Rptr.3d 510, review granted Mar. 18, 2020, S260493 ( Verdugo ). Even if an error in not appointing counsel may be harmless in some situations, such as when the petitioner is not entitled to relief as a matter of law, the error was prejudicial here. Accordingly, we reverse.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Whitten and her fetus were murdered in Oakland on the night of May 19, 1994. As discussed in more detail below, evidence was presented at the preliminary hearing that Cooper, who was then 18 years old, raped Whitten while another man, Emilio Mitchell, Jr., kicked her in the face.²

Mitchell repeatedly jumped onto Whitten's head, a cinder block was thrown on her head by both men, and Cooper cut Whitten's throat, possibly after she was already dead. Based on this evidence, Cooper was charged with two counts of murder, with the accompanying allegation as to both crimes that he personally used a deadly and dangerous weapon, a cinder block.³ It was also alleged that he inflicted great bodily injury on Whitten during the crime.⁴

In April 1998, Cooper pleaded no contest to one count of second degree murder, and the remaining count and all enhancements were dismissed. At the plea hearing, during the discussion of promises made to Cooper in exchange for his plea, his trial counsel stated, "The district attorney indicated that he would write in his letter to the Board of Prison Terms that the evidence supports the theory that the defendant is not a direct actor here but an aider and abettor." The prosecutor confirmed this was the case. Before taking the plea, the trial court asked whether there was "a stipulated factual basis for the plea," and Cooper's trial counsel stated, "So stipulated." The record does not reveal, however, what that basis was. Cooper was sentenced to 15 years to life in prison in November 1999.

On February 10, 2019, shortly after Senate Bill No. 1437 took effect, Cooper filed a petition for relief under section 1170.95. Using a form prepared by Re:Store Justice, a cosponsor of the legislation (see Verdugo , supra , 44 Cal.App.5th at p. 324 & fn. 2, 257 Cal.Rptr.3d 510 ), he checked boxes stating that a charging document had been filed against him allowing the prosecution to proceed under a felony murder theory or the natural and probable consequences doctrine; he entered a plea to first or second degree murder in lieu of going to trial because he believed he could have been convicted of murder under a felony murder theory or the natural and probable consequences doctrine; and he could not now be convicted of murder in light of Senate Bill No. 1437's changes to the law. In addition, he checked a box indicating that he was convicted of second degree murder under the natural and probable consequences doctrine or under the second degree felony murder doctrine and a box stating, "I request that this court appoint counsel for me during this re-sentencing process."⁵ Cooper included with the petition the transcript of his plea hearing and his abstract of judgment.

A different judge than the judge who sentenced Cooper summarily denied the petition on February 21, 2019. Cooper did not appear, and the trial court did not appoint counsel to represent him. In its written order, the court stated that the order's "procedural and factual history [was] based on the Court's records in this matter[,] including the preliminary hearing transcript (dated 1 November 1994) and the change of plea transcript (8 April 1998)." The record before us includes both of these transcripts, as well as the abstract of judgment, but it does not include other court documents from the 1990's except for the November 14, 1994 information.⁶ Thus, it is unclear what other documents the court may have considered.

While recognizing that Cooper "did not specify what [the factual] basis [of his plea] was," the trial court recited the underlying facts based exclusively on the evidence presented at the preliminary hearing. This evidence primarily consisted of the testimony of two minor brothers, L.M. and D.B., who were partying at their mother's apartment with Cooper, Mitchell, and others on the night in question. The young men spotted Whitten walking down the street, and L.M. called her over at Cooper's request. After going outside to talk to Whitten, Cooper returned to the apartment and obtained crack cocaine from Mitchell, indicating that he was going to show the drugs to Whitten so she would have sex with him but did not intend to give them to her. Cooper and Whitten then went into the backyard of the apartment building next door.

About five minutes later, L.M. heard Whitten say she was pregnant. Mitchell then went into the neighboring backyard. A few minutes later, L.M. followed to see what was going on and saw Cooper having sex with Whitten, who was on the ground, and Mitchell kicking her in the face. Whitten was trying to get away, and L.M. pulled Mitchell aside and told him to "let it go." Mitchell said he was going to kill Whitten so that she did not snitch on him. L.M. testified that Mitchell also tried to have sex with Whitten, but was unable to do so because she was moving too much.

At some point, Whitten grabbed L.M. and asked him to get her boyfriend, but instead, he went back inside to get help from his brother and another friend. Once inside, L.M. looked out a window and saw that Mitchell was still kicking Whitten in the head and Cooper was still raping her. Apparently, while L.M. and the other friend went back outside, D.B. watched the attack from the apartment. D.B. testified that he saw Mitchell repeatedly jump from some nearby stairs onto Whitten's head, and he also saw Mitchell and Cooper take turns dropping a cinder block on her head.

Meanwhile, after L.M. went back outside, he saw Mitchell hit Whitten on the head with a cinder block "one last time." Mitchell and Cooper apparently left the backyard, but Cooper returned shortly afterward, saying he was going to "slit [Whitten's] throat" so that she did not snitch on him. D.B. testified that he saw Cooper grab Whitten's hair and slit her throat while Mitchell stood next to him. After the murder, Cooper and Mitchell burned their clothes in the parking lot of the brothers’ apartment building.

The parties stipulated that if called to the stand, the pathologist who performed the autopsies would testify that Whitten's cause of death was "blunt trauma to the head

associated with asphyxia due to compression of the neck," and the fetus's cause of death was "maternal death." The parties also stipulated that the pathologist would testify to finding, among other injuries, "extensive lacerations, contusions[,] and abrasions on [Whitten's] face and scalp[,] ... extensive skull fractures, ... brain contusions, ... [and] incised wounds of the neck."

After describing this evidence presented at the preliminary hearing—to which, again, Cooper never stipulated—the trial court turned to its legal analysis. It characterized a court's task under the first sentence of section 1170.95(c) as "screen[ing] incoming resentencing petitions to determine if the petitioner is ineligible for resentencing as a matter of law." The court denied the petition on this basis, stating:

"[Cooper]

...