People v. Cooper

• Decision Date: 12 April 2022
• Docket Number: A161632
• Citation: 77 Cal.App.5th 393,292 Cal.Rptr.3d 513
• Parties: The PEOPLE, Plaintiff and Respondent, v. Aaron COOPER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

77 Cal.App.5th 393

292 Cal.Rptr.3d 513

The PEOPLE, Plaintiff and Respondent,

v.Aaron COOPER, Defendant and Appellant.

A161632

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

Filed April 12, 2022

Counsel for Defendant and Appellant: Alex Coolman, San Francisco, under appointment by the Court of Appeal

Counsel for Plaintiff and Respondent: Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Bruce L. Ortega, Deputy Attorney General, René A. Chacón, Supervising Deputy Attorney General, Bridget Billeter, Deputy Attorney General

Humes, P.J.

In 2004, a jury convicted defendant Aaron Cooper of first degree murder and kidnapping based on his participation with two other men, Fredrick Cross and Miltonous Kingdom, in the 1995 killing of William Highsmith. The jury also found true that a principal was armed with a firearm during both offenses, but it acquitted Cooper of the charge of being a felon in possession of a firearm. After Cooper admitted various prior convictions, he was sentenced to 58 years to life in prison. This division affirmed the judgment in 2007. ( People v. Cooper (2007) 149 Cal.App.4th 500, 57 Cal.Rptr.3d 389 ( Cooper I ).)

Over a decade later, in January 2019, Cooper filed a petition for relief under Penal Code ¹ section 1170.95. That statute was enacted as part of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), which altered liability for murder under the theories of felony murder and natural and probable consequences. Under section 1170.95, eligible defendants may petition to have their murder convictions vacated and be resentenced.² In the petition, Cooper alleged he was convicted of felony murder and could no longer be convicted of murder under amended section 189.

After appointing counsel for Cooper and considering the parties’ briefing, the trial court found he had made a prima facie showing of entitlement to relief and issued an order to show cause. The parties did not submit any "new or additional evidence" as authorized under section 1170.95, subdivision (d)(3). Instead, relying primarily on Cooper I and the trial transcripts, the court found beyond a reasonable doubt that Cooper was "a major participant" in the underlying kidnapping and acted "with reckless indifference to human life" under amended section 189, subdivision (e)(3), precluding relief under section 1170.95. The court came to this conclusion based in part on its belief that Cooper possessed and fired a gun.

On appeal, Cooper claims that it was improper for the trial court to rely at all on such a belief given his acquittal of the firearm-possession offense. We agree.³ We hold that a trial court cannot deny relief in a section 1170.95 proceeding based on findings that are inconsistent with a previous acquittal when no evidence other than that introduced at trial is presented. Thus, we reverse the order denying the petition and remand for the court to hold a new hearing to consider whether the prosecution proved beyond a reasonable doubt that Cooper was ineligible for relief under section 1170.95 for reasons other than having used or possessed a firearm.⁴

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Underlying Facts and Procedural History

We begin with a brief overview of the proceedings culminating in the sentence Cooper is serving. Highsmith was killed in August 1995, and the following year Cooper and Cross were jointly tried. ( Cooper I , supra , 149 Cal.App.4th at pp. 505–506, 57 Cal.Rptr.3d 389.) A jury convicted Cooper of murder, kidnapping, and other crimes, and he was sentenced to 71 years to life in prison. ( Ibid. ) Several years later, after unsuccessfully appealing to this court, he obtained federal habeas relief on the basis that the admission of Kingdom's out-of-court statement violated the Confrontation Clause.⁵ ( Id. at pp. 506–507, 57 Cal.Rptr.3d 389 ; Cooper v. McGrath (N.D.Cal. 2004) 314 F.Supp.2d 967, 985, 988.)

Cooper was retried in the fall of 2004. The jury convicted him of one count of first degree murder and one count of kidnapping and found true that a principal was armed with a firearm during both offenses.⁶ But Cooper—who was stipulated to be a convicted felon—was acquitted of a charge of being a felon in possession of a firearm.⁷ ( Cooper I , supra , 149 Cal.App.4th at p. 505, fn. 2, 57 Cal.Rptr.3d 389.) He then admitted to four prior convictions, one of which was for a serious felony and for which he served a prior prison term, and another for which he also served a prior prison term.⁸ ( Ibid. )

In December 2004, the trial court sentenced Cooper to a total term of 58 years to life in prison, composed of a term of 25 years to life, doubled, for murder, plus one year for the arming enhancement, and consecutive terms of five years for the prior serious felony and one year each for the prior prison terms. The upper term of nine years for kidnapping plus one year for the arming enhancement was imposed and stayed. Cooper appealed and filed an accompanying petition for writ of habeas corpus, and in spring 2007 this division affirmed the judgment and denied the habeas petition. ( Cooper I , supra , 149 Cal.App.4th at pp. 505, 528, fn. 23, 57 Cal.Rptr.3d 389.)

There was strong evidence that Cooper participated in the kidnapping, but it was far less clear whether and to what extent he participated in the actual murder. The following facts, unless otherwise noted, are taken from Cooper I , supra , 149 Cal.App.4th at pp. 509–517, 57 Cal.Rptr.3d 389 (footnotes omitted).⁹

"On August 16, 1995, the ‘very decomposed’ body of William Highsmith, known by the nickname ‘Coco,’ was discovered in a wooded area of the Oakland hills near Skyline Reservoir. The ‘bottom part’ of the victim's short-sleeve T-shirt had been torn away. A piece of cloth, apparently from the T-shirt, had been tied around his face and mouth so that it separated his teeth; a cloth gag had also been pushed into his mouth. The victim's jacket had been pulled down in the back and around his wrists to restrict the movement of his arms. His pants and boxer shorts had been pulled down to the level of his thighs. Scissors were found a few feet away from the body on the ground.

"An autopsy revealed that the victim had died from ‘a gunshot wound to the head.’ The bullet entered through the left cheekbone of the victim, passed through the skull, and lodged between the right side of the skull and the scalp behind the ear. The ‘extensive fracturing of the skull’ suggested a ‘contact wound,’ although no gunshot residue or splitting of the skin was detected. Due to the advanced state of decomposition of the body, a forensic pathologist offered the opinion that Highsmith had died ‘very near the time that he was last seen alive,’ nearly two weeks before on August 3, 1995, perhaps ‘the same day.’

"Witnesses had observed the abduction of Highsmith by three men at the intersection of 12th and Market Streets in Oakland on August 3, 1995. That morning, Zanetta Hodges talked with Highsmith, whom she had known most of her life, in the common area behind her residence in West Oakland. Highsmith told Hodges that he intended to ‘beat up the person’ who had accused him of stealing a car. Highsmith added that he ‘was going to meet’ with people ‘at the store’ to discuss the stolen car accusation.

"After speaking with Highsmith, Hodges went to East Oakland with her close friend Juanita ‘Goodie’ Walton to get a food stamp card. As they returned to the area of 12th and Market Streets on their way to pick up ‘food stamps in West Oakland,’ Walton saw ‘people she knew’ sitting in a blue Oldsmobile Delta 88 parked at the side of the Mingleton Temple church. At Walton's request, Hodges backed up her car and stopped across the street in front of Bottles Liquors to talk to the three men seated in the Oldsmobile: the driver Cross, the front seat passenger ... Kingdom, and the rear seat passenger [Cooper]. Hodges was acquainted with [Cooper] and Cross, but had not met Kingdom before. Hodges testified that [Cooper] was wearing black leather gloves, and Walton noticed black gloves on all three of the occupants of the Oldsmobile. They were also wearing ‘black hoody’ jackets.

"Walton walked up to the Oldsmobile and asked the men inside, ‘what were they doing out here’ in West Oakland. [Cooper] said ‘they were coming to look for someone who stole their drugs’ and car, specifically Highsmith.¹⁰ Hodges heard Cross say, referring to Highsmith, ‘That [person] stole my car, Goodie.’ When asked by [Cooper], ‘what type of [person] was Coco,’ Walton replied: ‘That [person], Coco, he ain't stealing no car. He the type of [person], he don't get his shoes dirty. He don't steal cars. He sells cars.’

"A red Corvette driven by K. K. Parker, with Highsmith in the passenger seat, then pulled up and parked on the street near the driveway of the church behind the Oldsmobile. [Cooper] said, ‘All right then,’ and Walton was told to ‘get away from the car.’ Walton returned to Hodges's car, whereupon Hodges drove away as the men in the Oldsmobile left that car and met in the parking lot by the church. As she drove away, in the rear-view mirror Hodges observed [Cooper] touch Highsmith ‘on the shoulder.’

"Rodney Love was also present at the scene of the abduction. While Love was standing outside the Bottles Liquor store at 12th and Market Streets, a tall Black man about 20 years old—whom he neither knew nor identified—got out of a ‘blue four door Delta,’ approached him, and asked if he was ‘Coco.’ Love saw a large revolver ‘pokin’ out’ of the man's shirt. Love said that he was not Coco, and the man walked back to the blue Oldsmobile, in which two other men were sitting. The occupants of the Oldsmobile wore black ‘puffy’ jackets, and at least two of them wore gloves. Love thought they all had guns. According to Love, soon thereafter K. K. Parker drove up in a red Corvette, with Highsmith in the passenger seat, and

...