The Right to Counsel Under Section 1170.95 Attaches Upon the Filing of a Facially Sufficient Petition

People v. Cooper (Cal. Ct. App., Sept. 1, 2020, No. A156880) 2020 WL 5175210

 Summary:

Cooper was convicted by no contest plea of one count of second degree murder and filed petition for resentencing, alleging he pleaded no contest because he had faced possibility of conviction of first or second degree murder under felony murder or natural and probable consequences theory. The Superior Court, Alameda County, denied the petition without appointing counsel. Cooper appealed and the  Court of Appeal, Humes,  held that:

The resentencing statute required trial court to grant petitioner’s request for counsel upon finding petition was facially sufficient and the  trial court’s failure to appoint counsel was prejudicial error.

Cooper was charged with two counts of murder for participating with another man in the killing of a pregnant woman in 1994. Cooper pleaded no contest to one count of second degree murder. In 1999 he was sentenced to 15 years to life in prison.

Senate Bill 1437 changes felony murder rule

Senate Bill No. 1437, which took effect on January 1, 2019, was passed “ ‘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.’ ” (People v. Lamoureux (2019) 42 Cal.App.5th 241, 247, 255 Cal.Rptr.3d 253, quoting Stats. 2018, ch. 1015, § 1, subd. (e).)

“Under the felony-murder rule as it existed prior to Senate Bill [No.] 1437, a defendant who intended to commit a specified felony could be convicted of murder for a killing during the felony, or attempted felony, without further examination of his or her mental state.” (Lamoureux, at pp. 247–248, 255 Cal.Rptr.3d 253.) In addition, “[i]ndependent of the felony-murder rule, the natural and probable consequences doctrine rendered a defendant liable for murder if he or she aided and abetted the commission of a criminal act (a target offense), and a principal in the target offense committed murder (a nontarget offense) that, even if unintended, was a natural and probable consequence of the target offense.” (Id. at p. 248, 255 Cal.Rptr.3d 253.)

Senate Bill No. 1437 changed murder liability under these theories through two statutory amendments. First, “[t]he bill redefined malice under section 188 to require that the principal acted with malice aforethought. Now, ‘[m]alice shall not be imputed to a person based solely on his or her participation in a crime.’ (§ 188, subd. (a)(3).)” (People v. Turner (2020) 45 Cal.App.5th 428, 433, 258 Cal.Rptr.3d 706.)

Second, the bill amended section 189 to provide that a defendant who was not the actual killer and did not have an intent to kill is not liable for felony murder unless he or she “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).)

Senate Bill No. 1437 also enacted section 1170.95, which establishes the procedure by which a defendant “convicted of felony murder or murder under a natural and probable consequences theory” may petition to have the “murder conviction vacated and to be resentenced on any remaining counts.” (§ 1170.95, subd. (a).)

Cooper filed a petition under that statute claiming 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.” Cooper  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.” The trial court relied on transcript of the preliminary hearing and concluded that Cooper was not eligible for resentencing because he was convicted under “a valid theory of murder.”Cooper did not stipulate to the preliminary hearing as the factual basis of his plea.

Cooper appealed claiming the trial court erred by summarily denying the petition without appointing counsel. The Court of appeal noted that 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).)

The Court of  Appeal held that the right to counsel attaches upon the filing of a facially sufficient petition that alleges entitlement to relief. This Court of Appeal disagreed 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 and the Court reversed.

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.

Cooper’s plea agreement

 In exchange for his plea, Cooper’s 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. And 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.

Under SB 1437, counsel  must be appointed when a petition is facially sufficient-denial not harmless here

 When a petitioner files a facially sufficient petition requesting counsel, as Cooper did, the trial court must appoint counsel and give the parties an opportunity to submit briefing before denying the petition. When the petitioner is not entitled to relief as a matter of law, denial of counsel may be harmless  Cooper’s conviction was based on a plea whose particular factual basis was never established so the trial court’s ruling that Cooper was ineligible for relief as a matter of law was  mistaken because it was based on impermissible fact finding that accepted the truth of the preliminary-hearing testimony without giving Cooper the opportunity to challenge that testimony.

On remand, Cooper must be appointed counsel and be allowed to submit briefing, even though his petition’s likelihood of success may be remote because testimony shows Cooper  intended to kill the victim even if he was not the “actual killer.” (§ 189, subd. (e)(2); see § 188, subd. (a)(3).)

Section  1170.95’s statutory language and its legislative intent, entitle Cooper  to the assistance of appointed counsel to make his case.