Filed 4/12/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A161632
v.
AARON COOPER, (Alameda County
Super. Ct. No. 125227A)
Defendant and Appellant.
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
(Cooper I).)
Over a decade later, in January 2019, Cooper filed a petition for relief
under Penal Code1 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
1 All further statutory references are to the Penal Code.
1
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
2Section 1170.95 was recently amended by Senate Bill No. 775 (2020–
2021 Reg. Sess.) (Senate Bill 775), which went into effect on January 1, 2022.
Although the statute has changed in several significant respects, and we
mention them as relevant, none changes the outcome of this appeal.
3 As a result, we need not consider the claims that the trial court also
erred in concluding Cooper necessarily acted with reckless indifference to life
by being a major participant in the armed kidnapping and misapplying the
standard of beyond a reasonable doubt.
2
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.) 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; 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
Cooper also filed a petition for writ of habeas corpus in which he
4
claims that his trial counsel rendered ineffective assistance by failing to
provide the trial court with certain evidence from his trial before it ruled on
the section 1170.95 petition. By separate order in the habeas corpus matter,
In re Cooper (No. A163780), we deny the habeas petition as moot. As
discussed further below, Cooper may seek to introduce that evidence on
remand.
Cross also obtained relief based on the improper admission of
5
Kingdom’s statement, but by the time of Cooper’s second trial Cross “was
serving a life term for an unrelated murder.” (Cooper I, supra,
149 Cal.App.4th at pp. 507, 514, fn. 14.) Kingdom was separately convicted
of murder with a kidnapping special circumstance and sentenced to life
without the possibility of parole. (Id. at p. 506, fn. 3.)
3
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.) 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.)
6Cooper was convicted under sections 187, subdivision (a) (murder),
and 207, subdivision (a) (kidnapping). The arming allegations were found
true under section 12022, subdivision (a)(1).
7 The felon-in-possession charge was brought under former
section 12021, subdivision (a)(1). (Cooper I, supra, 149 Cal.App.4th at p. 505,
fn. 2.) In 2012, section 12021 was recodified “without substantive change” at
section 29800. (People v. Arevalo (2016) 244 Cal.App.4th 836, 843, fn. 5
(Arevalo).)
8 These two prior convictions were a 1989 conviction of robbery under
section 211 and a 1993 conviction of being a felon in possession of a firearm
under former section 12021. (Cooper I, supra, 149 Cal.App.4th at pp. 505–
506 & fn. 2.) The 1989 conviction was found to be a serious felony and a
strike under sections 667, subdivision (e)(1), and 1170.12, subdivision (c)(1),
and Cooper admitted that he served prior prison terms for that conviction
and the 1993 conviction under section 667.5, subdivision (b). (Cooper I, at
p. 505, fn. 2.)
4
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 (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.’
9 Senate Bill 775 prevents a trial court from relying on facts recited in
an appellate opinion to rule on a petition under section 1170.95, as the
statute now provides that “the court may consider evidence previously
admitted at any prior hearing or trial that is admissible under current law”
and “the procedural history of the case recited in any prior appellate opinion.”
(§ 1170.95, subd. (d)(3), italics added; People v. Clements (2022)
75 Cal.App.5th 276, 292.) For purposes of this appeal, Cooper does not
dispute that, with one exception we note below, Cooper I accurately recited
the trial evidence. On remand, however, the trial court may not rely on the
opinion’s factual summary without Cooper’s acquiescence.
5
“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
10 In ruling on the section 1170.95 petition, the trial court agreed with
Cooper that in her testimony Walton did not attribute this statement to him.
Rather, Walton testified that one of the three men in the Oldsmobile said
this, but she was not sure which. She did testify that Cooper said the men
were “coming to talk to somebody about somebody stole something from
someone that day.”
6
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 parked behind the
Oldsmobile. Love unsuccessfully attempted to ‘motion’ to his
friend Highsmith to warn him. Parker and Highsmith got out of
the Corvette and began talking to the men from the blue
Oldsmobile, one of whom briefly grabbed Parker by the neck but
then released him. Parker ran into the liquor store. After
Highsmith admitted to the men that he was ‘Coco,’ they ‘pull[ed]
the guns out,’ five or six shots were fired, and they forcibly
pushed the victim into the trunk of the blue Oldsmobile. One of
the three men from the Oldsmobile got into the red Corvette,
then both the Oldsmobile and the Corvette were driven off in the
same direction.
“An employee at Bottles Liquor store, Musa Hussein,
testified that at about 4:00 p.m. on August 3, 1995, he saw
Highsmith outside the store engaged in an argument or heated
conversation with three other men across the street by the
church. Highsmith was a regular customer of the liquor store,
7
but the other three men were not known to Hussein and he could
not identify them, although he gave descriptions of them to the
police. Hussein also noticed two vehicles, an ‘old American’ car
and a red Corvette, parked near the men. According to Hussein’s
statement given to the police immediately after the kidnapping,
which was read to the jury, one of the men arguing with
Highsmith ‘had a long gun.’ Another man opened the trunk of
the vehicle, while a third man grabbed Highsmith. Hussein then
ran back into the store to call the police, but heard ‘gunshots’
outside. Customers yelled, ‘[T]hey’re putting him in the trunk.’
“Douglas Wright, an investigator for the Alameda County
District Attorney’s Office, testified that at around 4:00 p.m. on
August 3, 1995, he was driving on 12th Street, approaching
Market, when he heard what he ‘thought were two gunshots
ahead’ of him. He then observed a red Corvette parked on the
right side of the road facing the same direction Wright was
traveling. A man was standing behind the Corvette who was
described by Wright as ‘male Black, about 5’ 11” in his mid-20’s,
170 to 180 pounds.’ Wright was unable to identify the man, but
testified that he was ‘consistent’ in size and build with [Cooper].
As Wright drove by, the man quickly ran to the driver’s side of
the Corvette, jumped in, ‘took off, squealed and accelerated
around the corner.’ Wright ‘got a partial plate’ on the Corvette,
YOK953, but the last three numbers were incorrect. Across the
street, Wright noticed people ‘ducking down’ behind a parked car
as if they were ‘trying to get out of the way. . . .’
...
“About 7:00 on the night of the abduction of Highsmith,
George Archambeau was driving westbound across the San
Mateo bridge toward Foster City when he observed a ‘small, blue
car’ that was stopped with a red Corvette in front of it. As
Archambeau passed the two cars, he noticed an African-American
man standing outside the red Corvette, and another in the
driver’s seat. The man standing outside the Corvette threw an
object that appeared to be a ‘folded over’ grocery bag over the
bridge into the bay. Archambeau drove on, but the Corvette
‘came driving by’ him ‘extremely fast’ with two occupants in the
vehicle, both African-American men. As the Corvette ‘got caught
8
in the traffic’ ahead, Archambeau ‘wrote down the license plate,’
2YQK292, along with the notation ‘red ‘vette,’ and contacted the
highway patrol.
“Around 9:00 the same night, Moamer Mohamed was
working at the Bottles Liquor store. As he was leaving the store
he observed a red Corvette in front of the parking lot that blocked
his exit. The engine of the Corvette was running and the window
was open, but no one was inside. Mohamed saw an African-
American man wearing a checkered shirt and dark gloves
running away from the parking lot toward downtown Oakland.
Mohamed moved the Corvette and called the police. The only
identifiable fingerprints found on the red Corvette belonged to
K. K. Parker or the victim.
“When Walton returned to her residence later that night
with Hodges, Kingdom’s blue Oldsmobile Cutlass was parked on
the street in front of the house. She was frightened, and did not
look in the car or immediately contact the police. The vehicle was
located by the police, however, in front of Walton’s house [on
Voltaire Avenue] in East Oakland at about 10:00 that night.
...
“[Cooper] was arrested about an hour [later]. He was a
passenger in a blue 1985 Oldsmobile Royale driven by Carl
Anderson that was detained around 11:00 p.m. for expired
registration tags. Anderson was taken into custody on a ‘no-bail
misdemeanor warrant,’ and after [Cooper] was identified he was
arrested in connection with the carjacking and kidnapping of
Highsmith that afternoon. [Cooper] was wearing a green plaid
shirt—like the one Mohamed had seen earlier that evening worn
by the man who ran away from the red Corvette—and green
pants; his ‘hair was in corn rows.’ Black leather gloves were
found on the right front passenger seat which had been occupied
by [Cooper], and a black leather jacket was left in the back-seat of
the vehicle. Both of the gloves subsequently tested positive for
gunshot residue, as did the left sleeve of the jacket. No blood was
detected on the jacket or gloves. No gunshot residue was found
on [Cooper’s] hands.
9
“. . .Walton . . . identified [Cooper] as one of the men in the
blue Oldsmobile at 12th and Market just before the abduction of
Highsmith. She subsequently identified photographs of Cross
and Kingdom from a lineup as the other two men.
...
“At the scene of the kidnapping at 12th and Market, three
spent shell casings were recovered: two were brass nine-
millimeter ‘Lug[e]r caliber’ casings fired from the same weapon,
‘an S.W.D.-type firearm;’ the other, apparently of older vintage,
was a brass .45-caliber semiautomatic cartridge fired from
another type of weapon.[11] A criminalist also examined the
bullet extracted from the victim’s head, and determined that it
was fired from one of two similar size firearm calibers: a .40-
caliber Smith and Wesson, or a 10-millimeter auto caliber.
“Warrants were issued for the arrest of Cross and Kingdom
after they were identified by investigating officers as the other
two men associated with the abduction of Highsmith. The
Oakland Police Department was notified on August 10, 1995,
that Cross had been arrested in Mississippi. Two taped
statements were subsequently taken from him by investigating
officers of the Oakland Police Department early the next
morning. Kingdom was arrested on November 6, 1995, in
Mississippi. Two days later when he was confronted with the
statements made by Cross, [Kingdom] gave a statement to an
Oakland police officer which was [later] found inadmissible. . . .
“Both taped statements made by Cross, and his testimony
given at the first trial, were admitted in evidence and read to the
jury at the second trial. In his first statement Cross told the
officers that he moved to California in 1992, and lived with his
aunt on 55th Avenue in Oakland until a few months before his
11 At trial, a crime scene technician testified that the .45-caliber semi-
automatic cartridge was dented, “lying in some motor oil, and had some
debris on it,” in contrast to the two nine-millimeter shells, which were intact
and clean. The technician agreed that the .45-caliber cartridge appeared
“like it had been out there a longer period of time” than the two nine-
millimeter shells, suggesting it was not tied to the kidnapping.
10
arrest, when he stayed in motels in Oakland. He stated that
Kingdom is his cousin, and he met [Cooper] through one of his
drug selling partners after he began living in Oakland.
“Cross reported that [four days] before the abduction of
Highsmith [Cross’s] 1988 ‘blue Iroc’ Chevrolet, which contained
cash . . . , clothing, and other valuables, was stolen in Emeryville
while he was visiting a girlfriend. He and a companion ‘drove
around’ West Oakland looking for the car[, and] . . . [s]omeone
else told Cross that ‘Coco,’ a man with two gold teeth who lived
on Adeline and ‘steals cars,’ was . . . seen driving the Iroc around.
The next day, Cross and Kingdom drove through West Oakland
in the blue Oldsmobile looking for the Iroc. They heard that Coco
was on 12th and Market, so they drove there. When a man
named ‘Lon’ said that he knew Coco, Cross gave him his pager
number for Coco to call him.
“The following day between noon and 2:00 p.m., Cross
heard from Coco, who denied that he stole the Iroc. They agreed
to meet at 12th and Market to discuss the matter further. With
Cross driving, he, Kingdom[,] and Cooper went to 12th and
Market in the blue Oldsmobile. Cross did not find Coco among
the people on the street, then walked back to the Oldsmobile. As
he did, two men approached the car and one of them said, ‘I’m
Coco.’ After Coco said, ‘I don’t take cars,’ Cross began to ‘walk
off.’ He returned to the Oldsmobile, and they drove away. He
took a flight to Memphis later that night. Cross denied that they
kidnapped Coco.
“In his second statement taken a few hours later, Cross
admitted that when he, [Cooper,] and Kingdom arrived at 12th
and Market in the blue Oldsmobile, they all had nine-millimeter
handguns, although he denied that he owned any of the guns or
had one in his immediate possession at the scene. Cross said he
was outside the car when Coco appeared with another man in a
red Corvette. While he and Coco were ‘talking’ on the sidewalk,
‘everything jumped off.’ Suddenly, Kingdom and Cooper, with
guns drawn, escorted Coco to the rear of the car and forced him
into the trunk. Someone fired shots, but Cross claimed it was not
[him].
11
“Cross and Kingdom then got in the Oldsmobile, while
[Cooper] jumped into the red Corvette. They drove both cars to
East Oakland, around 109th and Foothill, where [Cooper] left the
red Corvette and got back in the blue Oldsmobile with them.
Coco was still in the trunk. They ‘drove around’ for a while, then
returned to the E-Z 8 motel, where Cross was staying. Cross and
Kingdom went into the motel room, but [Cooper] drove away with
Coco. Cross claimed that Coco was alive in the trunk when he
and Kingdom left the Oldsmobile for the hotel room. Cross was
in the motel room for 40 minutes to an hour packing his clothes
until [Cooper] returned in the car. Cross and Kingdom then
joined [Cooper], and with Kingdom driving they returned to the
location at 109th and Foothill where they previously parked the
red Corvette. [Cooper] left the Oldsmobile and returned to the
Corvette. [Cooper] drove off in the Corvette, and Cross did not
see him thereafter. He and Kingdom drove the Oldsmobile to
Voltaire and 100th, where they parked it. While Cross was in the
Oldsmobile, he did not hear any noise or look inside the trunk.
...
“In his testimony at the first trial, Cross added details to
his second statement and changed some of his account of the
events. Cross testified that his blue Iroc was stolen on July 30,
1995. Taken with the car were its contents: $600 to $700 in
cash, large amounts of marijuana and powder cocaine that were
worth thousands of dollars if sold on the street, jewelry[,] and
clothes. The drugs had been purchased the same day from
[Cooper’s] friend at 100th and MacArthur. Cross financed a
small portion of the drug purchase, but [Cooper] contributed
much more, between $2,000 and $4,000. Cross had intended to
drive the Iroc to Greenville, Mississippi to visit his mother and
sell the drugs. The theft of the car altered those plans. [Cooper]
was ‘upset’ when he learned the car and drugs had been stolen.
He accompanied Cross and Kingdom when they searched in West
Oakland for the Iroc the day before the abduction of
Highsmith. . . .
“Cross testified that he accepted Coco’s word by telephone
on August 3, 1995, that he ‘didn’t have’ the car, but [Cooper] was
insistent upon going to 12th and Market Streets to meet Coco.
12
[Cooper] said: ‘Let’s go out there,’ so Cross agreed. Cross drove
the blue Oldsmobile to 12th and Market Streets, Kingdom sat in
the front seat, and [Cooper] was in the rear passenger seat. They
parked across the street from the liquor store, near the church.
Cross testified that he got out of the Oldsmobile to talk to people
on the street in an effort to locate Coco, but left his gun on the
front seat of the car. He claimed that he did not see or talk to
Walton and Hodges. As he ‘was walking toward the car,’ a red
Corvette driven by K. K. Parker drove up and parked behind the
Oldsmobile. Parker went to the liquor store, and the other man
in the Corvette walked up to Cross on the sidewalk and said, ‘I’m
Coco.’ Coco said, ‘I don’t take cars,’ and claimed he had not seen
the Iroc. While holding a gun in one hand, [Cooper] then grabbed
Coco from behind and backed him into the trunk of the
Oldsmobile. Cross got in the front passenger seat of the car as
[Cooper] told Kingdom to get the keys from the ignition and open
the trunk. Cross ‘heard shots’ from behind the car, probably
‘about six,’ and ducked down. He did not know if Coco was shot,
but thought it was ‘a possibility.’ The trunk was then shut and
Kingdom ran to the front passenger side of the Oldsmobile. Cross
‘scooted’ into the driver’s seat, took the keys from Kingdom, and
drove away after Kingdom exclaimed, ‘[B]e out.’ [Cooper] drove
off in the red Corvette.
“When they reached 100th and Voltaire Streets, the red
Corvette was abandoned. They drove in the Oldsmobile to the E-
Z 8 motel, where Cross and Kingdom left the car. Cross went to
his room to pack for his planned trip to Mississippi. [Cooper]
returned to the motel and they all drove to 100th and MacArthur.
Cross did not know if Highsmith was still in the trunk of the car.
Cross exited the car there before [Cooper] and Kingdom ‘drove off’
without him. . . . Cross left the next morning for Mississippi,
where he was arrested a few days later. He testified that he
‘wasn’t being truthful’ entirely in his two statements to the police
to ‘cover’ for [Cooper] and Kingdom.”
B. Proceedings on the Section 1170.95 Petition
In January 2019, Cooper filed his section 1170.95 petition. The trial
court appointed counsel for Cooper, and the parties submitted briefing. The
prosecution also submitted the Cooper I opinion, the jury’s verdicts, the
13
minute order reflecting the verdicts, and the reporter’s transcripts of the
trial. At trial, Love’s prior statement to police and Cross’s police statements
and testimony from Cooper’s original trial were introduced into evidence but
not transcribed, and none of this evidence was before the trial court when it
ruled on the petition. (See Cooper I, supra, 149 Cal.App.4th at pp. 510, fn. 9,
514.) The court indicated it was “relying on the parties’ briefs . . . [and] also
the facts as set forth in [Cooper I]” for the content of Love’s and Cross’s prior
statements.
Cooper was permitted to file a supplemental brief addressing the
significance of his acquittal of the felon-in-possession charge. He argued that
the fact the jury concluded he was unarmed weighed in his favor as to various
factors relevant to whether he was a major participant in the kidnapping who
acted with reckless indifference to human life, including his role in supplying
or using lethal weapons and his role, if any, at the scene of the killing. The
prosecutor responded that “[t]he only definitive conclusion” to be drawn from
the acquittal was that the People were “unable to prove the charge beyond a
reasonable doubt to all twelve jurors, not that [Cooper] was innocent or that
the jury did not believe . . . Cross’s testimony.”
The trial court found Cooper had made a prima facie showing of
entitlement to relief and issued an order to show cause. The parties agreed
that the petition could be decided based on the briefing and materials already
submitted, and additional evidence was not offered at the hearing to
determine whether Cooper was entitled to relief.
At the hearing, the prosecutor repeated her position that an acquittal
“doesn’t mean that the person didn’t do it, it means that [the jurors] couldn’t
find him guilty beyond a reasonable doubt.” She also argued that the
acquittal was “inconsistent” with the finding that Cooper was “guilty and
14
armed with the gun in the murder as well as the kidnapping.” The
prosecutor took the position that Cooper was the person seen throwing
something off the San Mateo Bridge, which the trial court agreed Cooper I
had stated.
Cooper’s counsel responded that the acquittal should “be treated as a
finding that [Cooper] did not have [a] gun.” Counsel argued that it would
thus be “improper” for the trial court to rely on “the premise of . . . Cooper
being armed with a weapon” in deciding the petition. Counsel argued that in
particular, although the prosecutor had repeatedly stated that Cooper was
the one who threw a gun off the San Mateo Bridge, the acquittal established
that “the jury did not so find.”
The trial court then denied the petition, finding beyond a reasonable
doubt that Cooper was a major participant in the kidnapping who acted with
reckless indifference to human life.12 In reaching this conclusion, the court
made numerous statements to the effect that Cooper possessed and fired a
gun on the day in question.
The trial court found that at the scene of the kidnapping “[a]t least two
of [the three perpetrators] were armed and fired shots,” which were not
“randomly fired” but intended to “prevent anyone from stopping [the
perpetrators] . . . and create confusion and stress among the witnesses so that
12 Before Senate Bill 775 was enacted, Courts of Appeal were split on
whether the prosecution’s burden “to prove beyond a reasonable doubt, that
the petitioner is ineligible for resentencing” under former section 1170.95,
subdivision (d)(3), could be satisfied by substantial evidence that the
petitioner was guilty of murder under the law as amended by Senate
Bill 1437. (See People v. Rivera (2021) 62 Cal.App.5th 217, 229, fn. 8.) Here,
the trial court applied the correct standard of proof under current law, which
provides the prosecution has the burden “to prove, beyond a reasonable
doubt, that the petitioner is guilty of murder or attempted murder under
California law as amended by [Senate Bill 1437].” (§ 1170.95, subd. (d)(3).)
15
they would get away with this event.” Although acknowledging it was “not
quite sure” of Cooper’s role in planning the kidnapping, the court stated, “He
played a significant role in it. He either fired a shot into the air, or two shots
into the air, because two out of the three did.” (Italics added.)
Seemingly backtracking from finding that Cooper fired a gun at the
scene of the kidnapping, the trial court then said that given “the speed at
which the kidnapping occurred, it is unreasonable to infer that . . . [he] did
not know that there were at least two guns present, and that the plan was to
use them . . . to distract people and to get [the victim’s] compliance. So even
if . . . Cooper did not personally use it, personally hold it, he necessarily knew
that it was part of this plan.”
But the trial court continued, “Further, there is strong evidence in my
mind that [Cooper] did fire a weapon” at some point. (Italics added.) The
court cited the fact that the gloves and jacket found in the car when Cooper
was arrested had gunshot residue on them. The court explained that this
evidence “prov[ed] in [its] mind that the person who wore those gloves . . .
and that jacket on August 3rd . . . fired a gun on that day before 11:00 . . .
that night.” In turn, “[t]he only reasonable inference [to be made] from
[Cooper’s] sitting on those gloves at 11:00 p.m. on August 3rd is he had been
wearing them earlier in the night,” particularly because he was wearing
gloves earlier that day when Highsmith was kidnapped. Thus, the court
determined, “the only reasonable conclusion to reach is that [Cooper] fired a
gun. Whether it was at 12th and Market or off Skyline Boulevard, I don’t
16
know. That’s a factor that leans towards the finding of a major
participant.”13 (Italics added.)
The trial court also determined “that the most reasonable conclusion”
was that Cooper was the person seen on the San Mateo Bridge “[getting] rid
of a gun.” The court noted the evidence that Cooper drove the red Corvette
after the kidnapping and that he was the person wearing a checkered shirt
seen running away from the car later that night. The court then observed
that “the rational inference is that the person [who] seems to have had
control over the Corvette throughout this event . . . most likely is the person
that dumped it back at the liquor store at 9:00 [p.m.], was the person who
had it at 7:00 [p.m.], when the only rational inference is somebody threw the
firearms into the bay.” Thus, it concluded, Cooper “tossed the gun or was on
the San Mateo [B]ridge” when “the involved person [was] throwing off . . . the
one or two firearms that were fired [at] 12th and Market, one of which . . .
was used to murder . . . Highsmith on Skyline Boulevard.”
II.
DISCUSSION
A. General Legal Standards
“Effective January 1, 2019, the Legislature passed Senate Bill 1437 ‘to
amend the felony murder rule and the natural and probable consequences
doctrine, as it relates to murder, to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with the intent to
kill, or was not a major participant in the underlying felony who acted with
reckless indifference to human life.’ [Citation.] In addition to substantively
amending sections 188 and 189 . . . , Senate Bill 1437 added section 1170.95,
13The trial court indicated that it did not know whether Cooper “was
present at the scene of the killing,” but “at least two people were up on
Skyline Boulevard[, and] . . . it’s also quite possible all three were up there.”
17
which provides a procedure for convicted murderers who could not be
convicted under the law as amended to retroactively seek relief.” (People v.
Lewis (2021) 11 Cal.5th 952, 959.)
It is uncontested that Cooper was convicted of felony murder, as the
jury was instructed only on that theory. Murder “committed in the
perpetration of, or attempt to perpetrate, . . . kidnapping . . . is murder of the
first degree.” (Former § 189, now § 189, subd. (a).) At the time of
Highsmith’s murder, “a defendant could be found guilty of felony murder
under this statute as an aider and abettor so long as [the defendant] had ‘the
specific intent to commit the underlying felony’ and, in furtherance of that
intent, committed acts from which death resulted. [Citation.] In other
words, an aider and abettor of the underlying felony was held ‘ “strictly
responsible for any killing committed by a cofelon, whether intentional,
negligent, or accidental, during the perpetration or attempted perpetration of
the felony.” ’ ” (In re Taylor (2019) 34 Cal.App.5th 543, 550 (Taylor).)
As we explained in Taylor, “[u]ntil 1990, ‘state law made only those
felony-murder aiders and abettors who intended to kill eligible for a death
sentence.’ [Citation.] That year, the voters passed Proposition 115, which
made eligible for death ‘every person, not the actual killer, who, with reckless
indifference to human life and as a major participant,’ aids and abets a
specified felony, including [kidnapping], that ‘results in the death of some
person . . . , and who is found guilty of murder in the first degree therefor, . . .
if a[n enumerated] special circumstance . . . has been found to be true.’ ”
(Taylor, supra, 34 Cal.App.5th at p. 550, quoting § 190.2, subd. (d)
(§ 190.2(d)); see § 190.2, subd. (a)(17).) One such special circumstance is
participation in a kidnapping murder. (§ 190.2, subd. (a)(17)(B).) “That a
murder was committed during another felony under section 189, however, is
18
‘insufficient of itself to establish a felony-murder special circumstance’ under
section 190.2(d). [Citation.] Rather, a defendant who . . . ‘aided and abetted
the underlying felony but was not the actual killer’ and did not have an
intent to kill ‘must aid and abet the commission of the felony “with reckless
indifference to human life and as a major participant” ’ for the special
circumstance to be imposed.” (Taylor, at p. 551; § 190.2(d).)
Section 190.2(d) “ ‘was designed to codify the . . . holding [in] Tison [v.
Arizona (1987) 481 U.S. 137], which articulates the constitutional limits on
executing felony murderers who did not personally kill. Tison and a prior
decision on which it is based, Enmund v. Florida (1982) 458 U.S. 782,
collectively place conduct on a spectrum, with felony-murder participants
eligible for death only when their involvement is substantial and they
demonstrate a reckless indifference to the grave risk of death created by their
actions.’ ” (Taylor, supra, 34 Cal.App.5th at p. 551, quoting People v. Banks
(2015) 61 Cal.4th 788, 794 (Banks).) Banks and a follow-up decision,
People v. Clark (2016) 63 Cal.4th 522 (Clark), “clarified ‘what it means for an
aiding and abetting defendant to be a “major participant” who acted with a
“reckless indifference to human life.” ’ ” (Taylor, at p. 546.) Based on the
conclusion that section 190.2(d) “ ‘must be accorded the same meaning’ as the
principle discussed in Tison and Enmund and ‘must be given the same
interpretation irrespective of whether the defendant is subsequently
sentenced to death or life imprisonment without parole,’ ” Banks and Clark
described a number of factors to be considered in determining whether, under
the totality of the circumstances, a defendant was a major participant in the
underlying felony who acted with reckless indifference to human life.
(Taylor, at pp. 551–553.) These include the defendant’s “role . . . in supplying
or using lethal weapons,” “even if the defendant does not kill the victim or the
19
evidence does not establish which armed [perpetrator] killed the victim.”
(Banks, at p. 803; Clark, at p. 618.)
Senate Bill 1437 amended section 189 to provide that a defendant who
was not the actual killer or did not have an intent to kill is not liable for
felony murder unless the defendant “was a major participant in the
underlying felony and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.” (§ 189, subd. (e)(3); Taylor,
supra, 34 Cal.App.5th at p. 561.) Thus, amended section 189 uses the same
standard for finding a special circumstance under section 190.2(d) to define
when such a defendant is liable for felony murder. (Taylor, at p. 561.) In
other words, only defendants who are also death eligible under section 190.2
may now be convicted of felony murder in the first place.
To pursue relief under section 1170.95, a petitioner “file[s] a petition
with the court that sentenced the petitioner to have the petitioner’s murder,
attempted murder, or manslaughter conviction vacated and to be resentenced
on any remaining counts.” (§ 1170.95, subd. (a).) The petition must declare
that the requirements for relief are met, including that “[t]he petitioner could
not presently be convicted of murder or attempted murder because of changes
to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95,
subds. (a)(3), (b)(1)(A).) Upon filing “a facially sufficient petition,” a
petitioner is entitled to the appointment of counsel, and the parties then brief
whether the petitioner has made a prima facie showing of entitlement to
relief. (People v. Lewis, supra, 11 Cal.5th at p. 957; § 1170.95, subds. (b)(3),
(c).) If the trial court concludes the petitioner has made the required prima
facie showing, it must issue an order to show cause. (§ 1170.95, subd. (c).)
After an order to show cause issues, the trial court must “hold a
hearing to determine whether to vacate the murder, attempted murder, or
20
manslaughter conviction and to recall the sentence and resentence the
petitioner on any remaining counts in the same manner as if the petitioner
had not previously been sentenced, provided that the new sentence, if any, is
not greater than the initial sentence.” (§ 1170.95, subd. (d)(1).) “At the
hearing to determine whether the petitioner is entitled to relief, the burden of
proof shall be on the prosecution to prove, beyond a reasonable doubt, that
the petitioner is guilty of murder or attempted murder under California law
as amended by the changes to Section 188 or 189 made effective January 1,
2019. . . . A finding that there is substantial evidence to support a conviction
for murder, attempted murder, or manslaughter is insufficient to prove,
beyond a reasonable doubt, that the petitioner is ineligible for resentencing.
If the prosecution fails to sustain its burden of proof, the prior conviction, and
any allegations and enhancements attached to the conviction, shall be
vacated and the petitioner shall be resentenced on the remaining charges.”
(§ 1170.95, subd. (d)(3).)
B. The Trial Court’s Reliance on Its Belief that Cooper Possessed and
Fired a Gun to Deny the Petition Requires Reversal.
Cooper claims that his acquittal of the firearm-possession charge
“collaterally estopped” the trial court from relying on “the idea that he both
possessed and fired a gun” in ruling on the petition. (Italics and boldface
omitted.) While we do not adopt Cooper’s collateral-estoppel theory, we agree
that any evidence he possessed or used a gun should not have played a role in
the court’s analysis.
Generally, in determining whether a trial court correctly denied a
section 1170.95 petition after an evidentiary hearing, “ ‘ “we review the
factual findings for substantial evidence and the application of those facts to
the statute de novo.” ’ ” (People v. Williams (2020) 57 Cal.App.5th 652, 663.)
The primary issue here is the preclusive effect of Cooper’s acquittal of the
21
firearm-possession charge, an issue of law that we independently review.
(See People v. Arroyo (2016) 62 Cal.4th 589, 593; People v. Esmaili (2013)
213 Cal.App.4th 1449, 1462.)
Cooper relies on the doctrine of collateral estoppel, or issue preclusion,
which “precludes relitigation of issues argued and decided in prior
proceedings.” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341; Ashe v.
Swenson (1970) 397 U.S. 436, 443.) When applicable in criminal cases, the
doctrine “is a component of the double jeopardy clause of the Fifth
Amendment” and article I, section 15, of the California Constitution, which
both “provide that no person may be tried more than once for the same
offense.” (People v. Santamaria (1994) 8 Cal.4th 903, 912, fn. 3, italics added;
People v. Sanchez (2020) 49 Cal.App.5th 961, 974–975.) Thus, in the criminal
context, “[c]ollateral estoppel is traditionally applied to successive
prosecutions, and there is some question whether [the doctrine] applies to
further proceedings in the same litigation.” (People v. Gordon (2009)
177 Cal.App.4th 1550, 1557.) Indeed, we have previously indicated that
“double jeopardy principles are not at stake” in a section 1170.95 proceeding.
(People v. Myles (2021) 69 Cal.App.5th 688, 704; accord People v. Hernandez
(2021) 60 Cal.App.5th 94, 111; cf. People v. Gonzalez (2021) 65 Cal.App.5th
420, 433, review granted Aug. 18, 2021, S269792 [rejecting government’s
argument that collateral estoppel precluded defendant from relief under
section 1170.95].) Thus, although the Attorney General does not raise the
issue, it is not clear whether collateral estoppel principles apply in
section 1170.95 proceedings.
We need not resolve this question here, however, because Cooper’s
claim is supported by established case law in the analogous context of
petitions for resentencing under the Three Strikes Reform Act of 2012
22
(Proposition 36 or the Act).14 (See, e.g., People v. Thomas (2021)
64 Cal.App.5th 924, 941; People v. Martinez (2019) 31 Cal.App.5th 719, 725–
727.) Proposition 36 reduced “the punishment for some third strike offenses
that are neither serious nor violent.” (Arevalo, supra, 244 Cal.App.4th at
p. 841.) Similar to Senate Bill 1437, Proposition 36 also added
section 1170.126, which “create[d] a procedure by which some inmates
already serving third strike sentences [could] seek resentencing” to comport
with the initiative’s prospective ameliorative effect. (Arevalo, at p. 841.)
Arevalo and a later case, People v. Piper (2018) 25 Cal.App.5th 1007 (Piper),
both held that a trial court could not conclude that a defendant was ineligible
for resentencing under section 1170.126 by relying on factual determinations
about the defendant’s gun use that “turn[ed] acquittals and not-true
enhancement findings [at trial] into their opposites.” (Arevalo, at p. 853;
accord Piper, at p. 1015.)
In Arevalo, the defendant was convicted at trial of a third strike but
acquitted of a charge of possession of a firearm by a felon, and an allegation
that he was armed with a firearm was found not true. (Arevalo, supra,
244 Cal.App.4th at p. 841.) When he petitioned for resentencing under
Proposition 36, the trial court concluded he was categorically ineligible for
relief because its review of the trial testimony convinced it that he “was
armed with a firearm or deadly weapon” during the offenses for which he was
currently serving a sentence. (§§ 667, subd. (e)(2)(C)(iii), 1170.12,
subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2); Arevalo, at pp. 841–844 & fn. 6.)
The trial court believed it was not prevented from finding the defendant was
armed, despite the acquittal and not-true finding at trial, because they did
14 At our request, the parties submitted supplemental briefing on this
issue.
23
not establish “ ‘the nonexistence of guilt, factual innocence, or incredulity of
testimony given’ ” to support the charge and allegation. (Arevalo, at p. 844.)
A key issue in Arevalo was which standard of proof applied to
determining whether a defendant was ineligible for resentencing based on a
factor (such as being armed during the offense) under section 1170.126,
subdivision (e).15 (Arevalo, supra, 244 Cal.App.4th at p. 848.) In holding that
the appropriate standard was beyond a reasonable doubt, Arevalo relied on a
Supreme Court case stating that “ ‘[t]he parallel structure of the Act’s
amendments to the sentencing provisions and [the initiative’s] resentencing
provisions reflects an intent that sentences imposed on individuals with the
same criminal history be the same, regardless of whether they are being
sentenced or resentenced.’ ” (Id. at p. 853, quoting People v. Johnson (2015)
61 Cal.4th 674, 686 (Johnson).) Arevalo explained that if “a lesser standard
of proof” applied, “nothing would prevent the trial court from disqualifying a
defendant from resentencing eligibility consideration by completely revisiting
an earlier trial, and turning acquittals and not-true enhancement findings
into their opposites. That is what happened here when the resentencing
court relied on the disparity between [the] ‘beyond a reasonable doubt’ and
‘preponderance of the evidence’ standards to find [the defendant] ineligible
for resentencing on the basis of an arming allegation that had been pled and
disproved at his earlier trial. To allow this result would violate Johnson’s
‘equal outcomes’ directive, leaving [the defendant] ineligible for resentencing
15Even if a person is otherwise eligible for resentencing under
Proposition 36, a trial court has discretion to conclude “that resentencing the
petitioner would pose an unreasonable risk of danger to public safety”
(§ 1170.126, subd. (f)), a finding that may be based on facts proven by a
preponderance of the evidence. (People v. Frierson (2017) 4 Cal.5th 225, 239
(Frierson).) This aspect of section 1170.126 is not relevant to our analysis.
24
while a newly convicted defendant with an identical criminal history would
be found eligible for a second strike prison sentence.” (Arevalo, at p. 853.)
The Supreme Court subsequently affirmed Arevalo’s holding that the
standard of proof governing eligibility for relief under Proposition 36 is
beyond a reasonable doubt. (Frierson, supra, 4 Cal.5th at p. 235.) In doing
so, the Court rejected the People’s argument that “ ‘[i]mposing a beyond a
reasonable doubt standard would in many cases make the prosecution unable
to prove ineligibility even for those defendants who truly did have a
disqualifying factor—merely because of the happenstance that the
prosecution, having no need to prove such a factor years ago, made a less
than complete record.’ ” (Id. at p. 238.) The Court explained, “[N]othing in
the . . . Act’s language suggests the electorate contemplated that a lower
standard of proof should apply at resentencing to compensate for any
potential evidentiary shortcoming at a trial predating the Act. . . . [T]he
parallel structure of the Act [explained in Johnson] would suggest an
opposite intent.” (Id. at pp. 236, 238.)
The following year, Piper considered whether a trial court properly
found beyond a reasonable doubt that a defendant was armed with a firearm
during the offenses at issue and was therefore ineligible for resentencing,
even though a jury had acquitted him of several firearm-related counts and
found not true an arming allegation. (Piper, supra, 25 Cal.App.5th at
p. 1010.) Piper concluded that “[u]nder Frierson and Arevalo, on a
resentencing petition, the trial court may not make an eligibility
determination contrary to the jury’s verdict and findings. To do so would
allow the People, contrary to the . . . Act, to ‘compensate for any potential
evidentiary shortcoming at a trial predating the Act.’ (Frierson, supra,
4 Cal.5th at p. 238.) It also would allow a trial court, contrary to Johnson, to
25
‘turn[] acquittals and not-true enhancement findings into their opposites.’ ”
(Piper, at p. 1015.)
The analysis of Arevalo and Piper applies here. Similar to
Proposition 36, Senate Bill 1437 created a “parallel structure” (Johnson,
supra, 61 Cal.4th at p. 686) between its amendments to existing law
(sections 188 and 189 governing liability for murder) and its resentencing
provisions (section 1170.95). In discerning a parallel structure, Johnson
observed that “[b]oth the sentencing scheme and the resentencing scheme
[under Proposition 36] provide for a second strike sentence if the current
offense is not a serious or violent felony, and they set forth identical
exceptions to the new sentencing rules.” (Johnson, at p. 686.) Senate
Bill 1437’s parallel structure is even more explicit. Section 1170.95 provides
that a petitioner is entitled to relief unless “the prosecution . . . prove[s],
beyond a reasonable doubt, that the petitioner is guilty of murder or
attempted murder under California law as amended by the changes to
Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (d)(3);
see § 1170.95, subd. (a)(3) [eligibility for relief requires that “petitioner could
not presently be convicted of murder or attempted murder because of changes
to Section 188 or 189 made effective January 1, 2019”].) In other words,
unless the prosecution can prove beyond a reasonable doubt that the
petitioner is guilty of murder or attempted murder under current law, the
same standard governing conviction in the first instance, the petitioner’s
homicide conviction must be vacated. Thus, Senate Bill 1437 also “reflects an
intent that sentences imposed on individuals with the same criminal history
be the same, regardless of whether they are being sentenced or resentenced.”
(Johnson, at p. 686.)
26
Arevalo and Piper apply here even though Senate Bill 1437, unlike
Proposition 36, explicitly contemplates that the prosecution may “offer new or
additional evidence” to meet its burden to show that a petitioner is ineligible
for relief. (§ 1170.95, subd. (d)(3).) We recognize that this difference means
that one justification for Piper’s holding does not apply equally to
section 1170.95 proceedings. This justification is that in Proposition 36
resentencing proceedings the trial court may not make an eligibility
determination contrary to the jury’s verdict and findings because it would
permit the People “to ‘compensate for any potential evidentiary shortcoming
at a trial predating the Act.’ ” (Piper, supra, 25 Cal.App.5th at p. 1015.) This
distinction between Proposition 36’s and Senate Bill 1437’s resentencing
procedures does not affect our analysis in this case, however, because the
prosecution did not introduce any new or additional evidence at the hearing,
and the trial court’s conclusion that Cooper was ineligible for relief was based
on the same evidence the jury considered.
We therefore turn to whether Cooper is entitled to relief under the
principles discussed in Arevalo and Piper. To begin with, we agree with the
Attorney General that Cooper’s acquittal of the gun-possession count did not,
as a matter of law, prevent the trial court from determining that Cooper was
a major participant in the underlying felony who acted with reckless
indifference to human life. The court’s belief that Cooper possessed and fired
a gun supported, but did not mandate, its ultimate determination that he
was statutorily ineligible for relief because he was a major participant who
acted with reckless indifference. Indeed, we acknowledge the possibility that
the court could again conclude that Cooper is ineligible for relief because,
regardless of any personal possession or use of guns, his involvement in the
27
kidnapping as a whole establishes he was a major participant who acted with
reckless indifference to human life.
But the lack of an inherent conflict between the acquittal and the trial
court’s eligibility determination does not distinguish this case from either
Arevalo or Piper. In Arevalo, the defendant was acquitted of possessing a
gun, and the trial court determined he was ineligible for Proposition 36 relief
because he was armed with a deadly weapon during the offense. (Arevalo,
supra, 244 Cal.App.4th at pp. 841–842; see §§ 667, subd. (e)(2)(C)(iii),
1170.12, subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2).) Of course, one can be
armed with a deadly weapon that is not a gun. Confronting the question
more directly, Piper concluded that an acquittal of the arming enhancement
at issue “d[id] not necessarily preclude a trial court from making an eligibility
determination under [Proposition 36] that a defendant was armed.” (Piper,
supra, 25 Cal.App.5th at p. 1015.) In doing so, the Court of Appeal accepted
the Attorney General’s argument that the arming enhancement “require[d]
both a facilitative nexus and a temporal nexus,” whereas the arming basis for
ineligibility under the Act “require[d] only a temporal nexus,” and also
recognized that one could be “found ‘armed’ under the doctrine of vicarious
arming.” (Id. at pp. 1015–1016 & fn. 4.) The overlap in Arevalo and Piper
between the issue resolved by the acquittal and the issue resolved by the
eligibility determination was closer than it is here, but likewise not perfect.
Thus, the question is whether, in light of the evidence and arguments
at trial, Cooper’s acquittal of the firearm-possession count “constituted [a]
finding[] inconsistent with” the trial court’s theory that he was a major
participant in the kidnapping who acted with reckless indifference to human
life. (Piper, supra, 25 Cal.App.5th at p. 1015; see Arevalo, supra,
244 Cal.App.4th at p. 848.) We have no difficulty concluding that it was. The
28
trial prosecutor argued that Cooper could be convicted of possessing a firearm
based on the evidence that he had one “at 12th and Market during the
kidnap” and that he was “on the bridge throwing things in the water. In any
event, it’s clear from this pattern of evidence, from the totality of this
evidence, that throughout this event, Mr. Cooper was armed.” The acquittal
establishes that the jury rejected these arguments and was not convinced
beyond a reasonable doubt that Cooper possessed a firearm, much less fired
one. Yet the trial court, also applying the reasonable-doubt standard and
considering the same evidence (less Cross’s and Love’s prior statements),
found that Cooper did possess and fire a firearm, and explicitly relied on this
finding to determine he was a major participant. Thus, in contravention of
Arevalo and Piper, the court effectively turned Cooper’s acquittal “into [its]
opposite[].” (Piper, at p. 1015; Arevalo, at p. 853.)
The Attorney General makes two primary arguments for why reversal
is unwarranted under the principles of Arevalo and Piper. The first appears
to rely on a misunderstanding of the law and issues presented by this case.
According to the Attorney General, by convicting Cooper of murder and
kidnapping, “the jury necessarily concluded . . . that [Cooper] possessed the
intents to kill and kidnap the victim as an aider and abettor.” The Attorney
General continues that even if the acquittal was inconsistent with “whether
the jury found [Cooper’s] acts showed malice aforethought,” the trial court
could still “consider[] . . . the evidence developed at trial in inferring [his]
criminal intent and motive during the . . . murder” without contradicting the
acquittal. But Cooper was convicted of felony murder, a theory under which
malice is imputed based on participation in a lesser crime; an intent to kill or
other form of actual malice is not required. Thus, Cooper’s convictions do not
establish anything about his intent to kill Highsmith. And the question
29
presented is whether the court’s reliance on its belief that Cooper had and
fired a gun to deny relief was inconsistent with the acquittal, not whether the
court could rely on evidence of his intent more generally. In short, this
argument misses the mark.
The Attorney General’s second argument is that even if the trial court
erred by relying on evidence that Cooper possessed a gun, “that error was
harmless given other evidence showing [his] significant roles in the
kidnapping and murder.” Assuming, without deciding, that the applicable
standard for assessing prejudice is that of People v. Watson (1956) 46 Cal.2d
818, 836, we conclude the error was prejudicial. Under Banks and Clark, a
defendant’s knowledge of the presence of weapons, personal possession of a
weapon, and actual use of a weapon are all highly relevant to whether the
defendant was a major participant who acted with reckless indifference to
human life. (Clark, supra, 63 Cal.4th at p. 618; Banks, supra, 61 Cal.4th at
p. 803.) While we agree with the Attorney General that the evidence Cooper
had and fired a gun was not the only evidence supporting the court’s
eligibility determination, it was crucial to that determination. If, as the court
believed, Cooper fired a gun at the scene of the kidnapping or the murder,
that was strong evidence that he acted with reckless indifference to human
life. And if, as the court suggested, he was the person who threw one or more
firearms off the San Mateo Bridge, that was key evidence that he knew
Highsmith had been murdered and tried to cover it up. We conclude that
while not certain, it is reasonably probable that the court would not have
denied Cooper relief had it not found that he possessed and fired a firearm.
Accordingly, reversal is required.
Turning to the disposition, we conclude it is appropriate to remand the
matter for a new hearing on whether Cooper is entitled to relief. As an
30
alternative to his other claims, Cooper argues that there was insufficient
evidence that he was a major participant in the kidnapping who acted with
reckless indifference to human life. If we accepted this argument, it would be
appropriate to direct that Cooper’s resentencing petition be granted, not to
remand for further proceedings. Cooper devotes only a paragraph to this
claim, however, and he fails to show that the evidence of his involvement in
the crimes on which the court could properly rely was insufficient to
demonstrate he was ineligible for relief based on the Banks and Clark factors.
On remand, the trial court shall hold a new hearing under
section 1170.95, subdivision (d)(1), unless waived by the parties, at which
Cooper shall have an opportunity to present the omitted trial evidence that is
the subject of his current habeas petition—namely, the transcript of Cross’s
prior testimony. In conducting the hearing, the court shall apply the current
version of section 1170.95, including the following provision: “The admission
of evidence in the hearing shall be governed by the Evidence Code, except
that the court may consider evidence previously admitted at any prior
hearing or trial that is admissible under current law, including witness
testimony, stipulated evidence, and matters judicially noticed. The court
may also consider the procedural history of the case recited in any prior
appellate opinion.” (§ 1170.95, subd. (d)(3).)
III.
DISPOSITION
The order denying Cooper’s section 1170.95 petition is reversed. The
matter is remanded for the trial court to hold a new hearing to determine
whether the prosecution proved, beyond a reasonable doubt, that Cooper was
a major participant in the kidnapping and acted with reckless indifference to
human life. In doing so, the court shall not rely on any evidence admitted
31
during the trial that contradicts the jury’s finding that the prosecution failed
to prove beyond a reasonable doubt that Cooper possessed a firearm.
32
_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
East, J. *
*Judge of the Superior Court of the City and County of San Francisco,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
People v. Cooper A161632
33
Trial Court:
Superior Court of the County of Alameda
Trial Judge:
Hon. James P. Cramer
Counsel for Defendant and Appellant:
Alex Coolman, 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
People v. Cooper A161632
34