Filed 10/15/20 P. v. Cooper CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A158253
v.
DERRICK ANTOINE COOPER, (Contra Costa County
Super. Ct. No. 51318666)
Defendant and Appellant.
In 2017, this court affirmed Derrick Antoine Cooper’s conviction of first
degree murder (Pen. Code,1 § 187) but remanded the case for the trial court to
exercise its newly conferred discretion under Senate Bill No. 620 (SB 260) to
consider whether to strike a firearm enhancement. The court declined to
strike the enhancement, and Cooper appeals. We conclude that Cooper has
neither rebutted the presumption that the trial court knew and applied the
governing law nor shown that any misapprehension affected the court’s
sound exercise of its discretion. We shall therefore affirm.
Factual and Procedural History
Cooper’s conviction was affirmed in People v. Cooper (Dec. 5, 2017,
A143556 [nonpub. opn.]). The opinion describes how Cooper and codefendants
James Green and Antwone Johnson, who belonged to a North Richmond gang,
1 All statutory references are to the Penal Code.
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killed Lincoln Plair, who they mistakenly assumed to be a member of a rival
Central Richmond gang. Cooper and Johnson, each armed, walked toward
Plair, who was washing a car on the sidewalk as children played nearby.
Multiple shots were fired, killing Plair. Afterwards Cooper discovered that his
gun had jammed.
The two-count information charged each defendant with Plair’s murder
(§ 187) and with participation in a criminal street gang (§ 182.5). As to each
defendant, it alleged two enhancements relevant to this appeal: (1) that the
murder was committed to benefit a criminal gang and with the specific intent
to further criminal conduct by gang members (§ 186.22, subd. (b)(1)) and
(2) that each defendant personally and intentionally fired a gun causing great
bodily injury or death (§ 12022.53, subd. (d)). The latter allegation also cited
subdivision (e)(1) of section 12022.53, under which each defendant could be
vicariously subject to a firearm enhancement. Under subdivision (e)(1), an
enhancement may be imposed on a defendant not found to have personally
shot the victim if the jury found that the defendant was a principal in the
offense, that he or she violated the criminal-gang statute (§ 186.22, subd. (b)),
and that another principal in the offense fired a gun in violation of
subdivision (d). (§ 12022.53, subd. (e)(1)).
A jury found Cooper guilty on each count and found that the murder
was committed to benefit a street gang (§ 186.22, subd. (b)(1)) and that a
principal personally fired a gun, causing death (§ 12022.53, subds. (d) &
(e)(1)). The jury found not true the allegation that Cooper himself personally
fired a gun (Id., subd. (d)). The court sentenced Cooper to a term of 25 years
to life on the murder count and to a consecutive term of 25 years to life on the
vicarious firearm enhancement. (Id., subd. (e)(1)). On the gang enhancement,
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the court imposed a 10-year term but stayed that term pursuant to
section 654.2
This court affirmed the conviction but remanded the case to the trial
court for “limited purposes” that included, as relevant here, “determining
whether it should in the interest of justice strike the firearm enhancement
imposed pursuant to section 12022.53.”
On remand, Cooper filed a brief asking the court to exercise its
discretion to strike the firearm enhancement imposed pursuant to section
12022.53, subdivision (e)(1). Alternatively he requested the court to strike the
enhancement and replace it with a lesser included enhancement pursuant to
section 12022, subdivision (a)(1). In support of that request, Cooper cited
People v. Morrison (2019) 34 Cal.App.5th 217, 222 (Morrison) for the
proposition that a court has authority to strike or dismiss an enhancement
found true and impose a lesser-included enhancement, whether or not alleged
and found true.
The prosecutor did not file an opposition. At the hearing, she opposed
the request to strike the enhancement but did not mention Morrison or the
alternative request to substitute a lesser-included enhancement. Neither
defense counsel nor the court mentioned Morrison or raised that issue at the
hearing.
The court declined to strike the enhancement, explaining: “I would note
in regard to accepting responsibility that Mr. Cooper did testify under oath at
the trial that he was not involved in this incident. And certainly that . . .
militates against my striking the gun enhancement. [¶] I watched Mr. Cooper
during the trial. I do think at that time he could be classified as a youngster.
On count two (participation in a criminal street gang), the court
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imposed a sentence of 25 years to life, which it also stayed under section 654.
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I think he did not appreciate the gravity of what had occurred. He did not
appreciate the gravity with which the criminal justice system operated under
such an occurrence, because I think it’s fair to say that he was young and
naïve. Unfortunately, he’s learned a lot since then. My empathy for Mr.
Cooper being so young at that time is really addressed by the Youthful
Offender laws that have come into effect. [¶] I have to say that what occurred
was horrendous. Getting out of the car with Mr. Johnson, walking down the
street in Central where there were children and a 19-year-old washing cars,
and just firing at him is unconscionable. It’s so obviously horrendous.
Mr. Plair was indeed a hero by pushing those children out of harm’s way,
because certainly Mr. Cooper and Mr. Johnson were not concerned about
those children. It’s only an act of fate that Mr. Cooper’s bullet didn’t kill
Mr. Plair because the gun jammed, and there were certainly casings from the
gun. [¶] So the facts of the case itself, the fact that Mr. Cooper chose to lie
under oath and not accept responsibility, and the fact that I stayed the gang
enhancement because of the gun enhancement, all point towards my not
striking the gun enhancement at this time. He’s gonna get the benefit of the
Youthful [O]ffender laws. And I think it’s appropriate given the fact that he
went to trial and was convicted that I leave the sentence as it is.”
The court reimposed the original sentence, and Cooper filed a timely
notice of appeal.
Discussion
SB 620, which added subdivision (h) to section 12022.53, “gave the trial
court discretion ‘in the interest of justice pursuant to Section 1385 and at the
time of sentencing, [to] strike or dismiss an enhancement otherwise required
to be imposed by this section.’ (§ 12022.53, subd. (h).) [¶] ‘ “A court’s
discretionary decision to dismiss or to strike a sentencing allegation under
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section 1385 is” reviewable for abuse of discretion.’ ” (People v. Pearson (2019)
38 Cal.App.5th 112, 116.) Cooper does not contend that the trial court’s
decision is “ ‘so irrational or arbitrary that no reasonable person could agree
with it.’ ” (Ibid.) He contends that the trial court misunderstood either the
scope of its discretion or a material aspect of the record. (See People v.
Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 [defendants “are entitled to
sentencing made in the exercise of the ‘informed discretion’ of the sentencing
court”].)
Cooper contends the court exercised its discretion without realizing
that the scope of that discretion included the ability to replace the vicarious
firearm enhancement that was imposed with a lesser-included enhancement.
He acknowledges the “basic presumption indulged in by reviewing courts that
the trial court . . . kn[ew] and applied the correct statutory and case law in
the exercise of its official duties” (People v. Mack (1986) 178 Cal.App.3d 1026,
1032), but attempts to overcome the presumption by pointing out that
Morrison held the presumption did not apply in that case. Shortly before the
enactment of SB 260, Morrison was convicted of murder and given a sentence
that included a firearm enhancement of 25 years to life under subdivision (d)
of section 12022.53. (Morrison, supra, 34 Cal.App.5th at p. 220.) After SB 260
was enacted, Morrison moved the trial court to recall his sentence. The court
did so, but declined to exercise its newly conferred discretion to strike the
enhancement. (Ibid.) On appeal, Morrison argued that the court had not
understood that a trial court’s discretion under SB 260 includes the authority
to strike an enhancement found true by the jury and to impose instead a
lesser included enhancement that had not been alleged or found true. (Id. at
pp. 221–222.) Division Five of this court agreed and remanded Morrison’s
case because, at the time of Morrison’s resentencing, SB 260 had just been
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enacted, “no published case had held [that] an uncharged lesser firearm
enhancement could be imposed in lieu of an enhancement under section
12022.53, subdivision (d),” and “it does not appear the court considered the
issue.” (Id. at p. 224.) While acknowledging “ ‘the rule that a trial court
ordinarily is presumed to have correctly applied the law,’ ” Morrison holds that
the presumption does not apply if, at the time of sentencing, the scope of a
court’s discretion under a new law was unclear or disputed. (Ibid.) But “after
the publication of our decision today,” the court added, "the usual
presumption that a sentencing court correctly applied the law will apply [in
cases raising the same issue] and will ordinarily prevent remand where the
record is silent as to the scope of a court’s discretion.” (Id. at p. 225.)
In this case, Cooper was resentenced “after the publication of
[Morrison]” and after Cooper brought that decision to the court’s attention.
The record is otherwise “silent as to the scope of the court’s discretion”
(Morrison, supra, 34 Cal.App.5th at p. 225), as the prosecutor did not dispute
that a trial court’s discretion under SB 260 encompasses the ability to
substitute a lesser-included enhancement,3 and the court did not say
anything to suggest that it was unaware that it had that authority. Morrison
itself thus dictates that “the usual presumption that a sentencing court
correctly applied the law will apply.” (Ibid.)
Cooper also relies on the circumstance that, while the defendant in
Morrison was the actual killer, he was not. Cooper argues it was unsettled at
3 The Attorney General now urges this court to reject the rule of
Morrison and to follow decisions that have since disagreed with it. (People v.
Tirado (2019) 38 Cal.App.5th 637, review granted Nov. 13, 2019, S257658;
People v. Garcia (2020) 46 Cal.App.5th 786, review granted June 10, 2020,
S261772.) We need not attempt to resolve that conflict because the
correctness of Morrison’s rule is immaterial to the outcome of this appeal.
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the time of his resentencing whether the authority identified in Morrison
extends to substituting a lesser included vicarious firearm enhancement for a
vicarious enhancement found true by the jury. But he articulates no reason
why the trial court might have believed that the power identified in Morrison
applies only to firearm enhancements imposed on actual killers. Nor does he
cite any part of the record suggesting that the trial court had such a belief.
We thus apply “the usual presumption that a sentencing court correctly
applied the law” (Morrison, supra, 34 Cal.App.5th at p. 225).
Cooper’s second claim is that the court’s exercise of discretion rested in
part on misinformation about a material aspect of the record. (See People v.
Belmontes, supra, 34 Cal.3d at p. 348, fn. 8.) As indicated above, the third
reason the court gave for refusing to strike the gun enhancement was “the
fact that I stayed the gang enhancement because of the gun enhancement.”
This comment, Cooper contends, shows that the court misunderstood the
record: the court did not stay the gang enhancement “because of the gun
enhancement.” Because Cooper was convicted of first degree murder, the
statute itself (§ 186.22) barred the court from imposing a gang enhancement.
Cooper cites People v. Lopez (2005) 34 Cal.4th 1002, which holds that “first
degree murder is a violent felony that is punishable by imprisonment in the
state prison for life and therefore is not subject to a 10-year [gang]
enhancement under section 186.22(b)(1)(C).” (Id. at p. 1004.) If a defendant
convicted of first degree murder satisfies the prerequisites for a gang
enhancement, subdivision (b)(5) of section 186.22 “applies and imposes a
minimum term of 15 years before the defendant may be considered for
parole.” (Ibid.)
Assuming that Cooper is correct that Lopez barred the court from
imposing a gang enhancement here, and that the court held a mistaken belief
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that the gun enhancement had led it to stay the gang enhancement, any such
belief was immaterial. The gang enhancement was only one of three reasons
the court gave for not striking the gun enhancement, and the court’s
statement of reasons makes clear that it based its refusal primarily on the
other two unchallenged factors. The court began its discussion by noting
Cooper’s decision to deny responsibility by lying under oath, explained why
its “empathy for Mr. Cooper being so young at that time is really addressed
by the Youthful Offender laws that have come into effect,” and then
recounted the “obviously horrendous” facts of the case. Then the court gave a
final summary in which it mentioned in passing, for the first and only time,
“the fact that I stayed the gang enhancement because of the gun
enhancement.” There is no reason to believe that any misapprehension about
whether the court could have imposed a gang enhancement had a material
effect on its exercise of discretion not to strike the gun enhancement.
Disposition
The judgment is affirmed.
POLLAK, P. J.
WE CONCUR:
STREETER, J.
TUCHER, J.
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