California Court of Appeal Nov 12, 2024 No. E081754Unpublished
Filed 11/12/24 P. v. Cooper CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E081754
v. (Super.Ct.No. BAF2200250)
DANTE TRIMELL COOPER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Rene Navarro, Judge.
Affirmed.
Lizbeth Weis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and James
H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Dante Trimell Cooper and J.W. are brothers. J.W. had
stored his belongings at defendant’s apartment. On March 2, 2022, while J.W. was
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packing up his belongings, he hit defendant on the head (two times) and ran to the
neighbor’s apartment. Defendant grabbed his gun, followed J.W. to the neighbor’s
apartment, and fired at him until the gun was empty. J.W. survived. Defendant was
convicted of, alter alia, willful, premeditated, and deliberate attempted murder. (Pen.
Code,1 §§ 187, 664.) On appeal, he challenges the denial of his motion for mistrial and
his motion for a judgment of acquittal under section 1118.1. We affirm.
I. PROCEDURAL BACKGROUND AND FACTS
On March 2, 2022, while in the process of moving out of his Hemet apartment,
defendant ordered his brother (J.W.) to “get [his] shit outta here.” J.W. did not live in the
apartment, he “just [left his] things there.” The brothers’ relationship was “kind of
rocky.” As J.W. was retrieving his belongings, he asked defendant where his (J.W.’s) tax
refund or stimulus check was, and they started arguing. As the argument escalated,
defendant told J.W. to “get your life together.” J.W. responded, “‘I would, if I had my
money,’ and that’s where it got crazy.”
Defendant, grabbed a black nine-millimeter gun from a bag and held it at his side,
pointing down.2 When J.W. complained that defendant pulled out his gun every time the
two argued, defendant pointed the gun at J.W.’s chest. J.W. told defendant, “Put the gun
down. I’ll knock your ass out.” Defendant lowered the gun and put it in the bag, but kept
1 Unlabeled statutory references are to the Penal Code.
2 There is a “significant size disparity between the two” brothers. Defendant is five feet 11 inches tall and 180 pounds, while J.W. is “approximately six two, maybe 280 pounds.”
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“it close to his leg.” As the two continued to argue, J.W. asked if defendant wanted a
particular table, adding, “You got everything else of mine.” J.W. walked toward the door
to leave, grabbed a pole (a three-foot table leg that he used for protection), turned around
“real quick to swing it,” and hit defendant in the head. Defendant started yelling,
dropped the bag, and began “squirming and going wild,” trying to grab for the bag. J.W.
struck defendant a second time, grabbed the bag, and ran to a neighbor’s apartment.
J.W. asked the neighbor, M.M., to call the police. Another neighbor, L.W., heard
the commotion, went outside, and saw J.W. at M.M.’s apartment. As defendant came out
of his apartment, L.W. described him as bloody, “very angry,” and smaller than J.W.
Defendant exclaimed, “‘He shot me in the face.’” Defendant first came out of his
apartment with nothing in hand, but then went back inside. Simultaneously, J.W. went
inside M.M.’s apartment, over M.M.’s objection. When defendant came outside again,
he “went after” J.W. with a gun; he looked “pissed.” Defendant fired shots into J.W.’s
chest from a range of “about 25 inches” while J.W. was standing in M.M.’s doorway.
J.W. ran into M.M.’s apartment and defendant followed, firing more shots at his brother.
M.M. never saw J.W. with a gun, but J.W. told him (M.M.) there was a gun inside the
bag. Police recovered a large pole, three projectiles, and a handgun in a bag from M.M.’s
apartment. Defendant’s apartment had a lot of blood.
Police arrived and spoke to J.W. who pointed to defendant and said, “‘That’s him
right there, the person who shot me.’” Defendant told an officer that he had been shot;
however, the officer had not observed anything to support such a claim. Rather,
defendant appeared to have suffered a blunt force injury. The officer overheard
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defendant tell the EMT medics that he had shot his brother until he “ran out of bullets”
and J.W. “fell over and covered himself.”3 Following his arrest, defendant agreed to
speak with detectives; his interview was played for the jury.
In the interview, defendant admitted shooting J.W.; however, he claimed that J.W.
attacked him as he slept in a chair. Defendant heard “a thud” and “thought” he had been
shot in the face.4 Believing that he was going to die, he thought, “I gotta try to kill [J.W.]
back.” He had two guns, a Glock that he kept in a bag by his side, and a .38 that he kept
in his closet. Defendant ran outside and saw J.W. at a neighbor’s door. When he heard
J.W. tell the neighbor, “sir, he just pulled a gun on me,” defendant ran back into his house
and retrieved his .38 from the closet. He went outside again, found J.W. at the neighbor’s
doorstep, and fired shots until the gun was empty. When the detective asked why he
went back and got a gun, defendant replied, “I was panicking, sir. He woke me up out of
a sleep, and I thought I was shot.” He added that he thought he was going to die and he
“gotta try to kill him back or something.”
After pointing out that J.W. had left defendant’s apartment, and there was no
longer an active threat, the interviewing detective noted that defendant “chased [J.W.]
3 The officer also testified that defendant “told medical staff that he owns two firearms, although he had served 15 years in prison.” In response to this statement, defense counsel unsuccessfully moved for a mistrial.
4 Defendant later stated, “‘Cause I was asleep, and I just—you get hit in the face with a pole, obviously, you—you don’t—you’re not gonna know. You just—all I just hear is a thud, and I’m like blood squirting out. So I’m running out the house. . . . I don’t know if before or after when I was running out, but I was screaming he shot me in the face.”
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down.” The detective then stated, “You could’ve shut your door. You could’ve locked
your door, and you could’ve called police.” Defendant replied, “That’s true. But now,
what about the gun he took? ‘Cause I don’t know where that bag is at.” When the
detective emphasized that J.W. was gone, defendant explained, “But I didn’t start this. I
didn’t initiate it.” He justified his act of chasing down J.W. by pointing out that “cops
kill people for less.” When asked where he was aiming when he shot J.W., defendant
said, “I was just shooting, man. I wasn’t trying to shoot him in the head, face, man. It
wasn’t no particular area. I was just—seen him and just start squeezing, man, like ‘cause
I’m [go]nna die.”
J.W. suffered gunshots to the arm, chest, back, and abdominal areas. By
stipulation, the jury heard that defendant was convicted of a felony.
Following the close of evidence, the defense moved for a judgment of acquittal on
all counts, but in particular, the attempted murder charge under section 1118.1. The
defense argued there was no evidence of willful premeditation and deliberation. The trial
court denied the motion.
A jury convicted defendant of attempted murder (§§ 187, 664), assault with a
semiautomatic firearm (§ 245, subd. (b)), and being a felon in possession of a firearm
(§ 29800, subd. (a)(1)). The jury found that the attempted murder was willful,
premeditated and deliberate, and defendant personally and intentionally discharged a
firearm proximately causing great bodily injury to another person. Separately, the trial
court found that defendant had suffered a strike prior within the meaning of sections 667,
subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1), that the attempted murder
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involved great violence, great bodily harm, the threat of great bodily harm and a high
degree of cruelty, viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1);
unlabeled rule references are to the Cal. Rules of Court), that defendant had been armed
with and used a firearm (rule 4.421(a)(2)), and that he had previously suffered a prison
prior (rule 4.421(b)(3)). He was sentenced to state prison for an aggregate term of 39
years to life, plus 18 years four months.
II. DISCUSSION
A. The Trial Court Properly Denied Defendant’s Motion For Mistrial.
Defendant contends the trial court abused its discretion by denying his motion for
mistrial based on witness testimony that he had spent 15 years in prison.
1. Further background information.
Defendant was charged with felon in possession of a firearm. In a pretrial motion,
the prosecutor represented that he intended to “sanitize” the underlying felony during
trial. Defendant elected against testifying, and the parties stipulated that his prior felony
would be sanitized so that the jury would only learn that he “had previously been
convicted of a felony,” without making reference to the specific felony, how serious it
was, or how long he had served in prison. Notwithstanding the parties’ stipulation, one
of the officers, who rode in the ambulance with defendant, testified that he had heard
defendant tell medical staff that “he owns two firearms, although he had served 15 years
in prison.” Defense counsel objected and moved to strike the testimony. The court
sustained the objection, granted the motion, and directed the jury “to disregard the last
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answer by the witness in its entirety [and not] consider it at all in reaching any decision in
this case as to any of the issues.”
Defense counsel also moved for a mistrial based on the testimony that defendant
had served 15 years in prison. Counsel argued the testimony “deprives [defendant] of a
fair trial, and there is no way for [the jurors] to unhear that, and now they may think that
[he] is a bad and dangerous man, and if they were on the fence about these charges, they
would be inclined to convict [him] and hope for a high sentence for [him].” Although
counsel did not fault the People for the officer’s particular response, he asserted that “it
was gratuitous and intentional on the part of law enforcement and outrageous
misconduct.” The trial court denied the motion, explaining that the response was
gratuitous, but the court had sustained defendant’s objection, struck the answer in its
entirety, and admonished the jury to disregard it. The court stated that, without further
guidance, the jury would not know what a 15-year term means, and the court expects
jurors to follow the instruction to disregard the testimony.
Defense counsel unsuccessfully raised the issue again in a motion for new trial,
repeating his argument that the testimony prejudiced defendant because the jurors “heard
it, and it was impossible for [him] to receive a fair trial after that.” Citing People v.
Prysock (1982) 127 Cal.App.3rd 972 (Prysock), the trial court found that “any prejudice
that may have been had by the officer blurting it out was cured by the Court’s immediate
response to it.”
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2. Standard of review.
“‘“‘A mistrial should be granted if the court is apprised of prejudice that it judges
incurable by admonition or instruction. [Citation.] Whether a particular incident is
incurably prejudicial is by its nature a speculative matter, and the trial court is vested with
considerable discretion in ruling on mistrial motions. . . .’ [Citation.] A motion for a
mistrial should be granted when ‘“‘a [defendant’s] chances of receiving a fair trial have
been irreparably damaged.’”’” [Citation.] “Although most cases involve prosecutorial or
juror misconduct as the basis for the motion, a witness’s volunteered statement can also
provide the basis for a finding of incurable prejudice.” [Citation.]’ [Citation.]” (People
v. Harris (2013) 57 Cal.4th 804, 848.)
“The standard of review of a ruling denying a mistrial motion and a ruling denying
a new trial motion is the same: abuse of discretion. [Citations.]” (People v. Rices (2017)
4 Cal.5th 49, 92.)
3. Analysis.
Defendant offers three reasons in support of his claim the trial court abused its
discretion in denying his motion for mistrial: (1) The length of the jury’s deliberations
compared to the length of the trial indicate the case was close. (2) The evidence of his
15-year prison term was not vague, evokes an emotional bias that has no bearing on the
issues, and gave the jury a reason to mistrust his claim of self-defense. (3) The court’s
reliance on Prysock was misplaced. As we explain, the court acted within its discretion
when it denied the mistrial motion and when it later denied a new trial on the same
grounds.
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Claiming the length of the jury’s deliberations indicates a close case, defendant
points to the amount of time the jury deliberated, compared to the amount of time it took
to hear the testimony (2 and a half hours for deliberations versus 5 hours for testimony).5
However, there is no reason to believe that the length of deliberations is an indication of
the closeness of a case. “[T]he length of the deliberations could . . . be reconciled with
the jury’s conscientious performance of its civic duty, rather than its difficulty in reaching
a decision.” (People v. Walker (1995) 31 Cal.App.4th 432, 439 [six and a half-hour
deliberation following two and a half-hour presentation of evidence did not indicate that
the evidence was closely balanced].)
Next, defendant reasons the specific reference to defendant’s prison term—
15 years—was not vague, evoked an emotional bias that has no bearing on the issues, and
gave the jury a reason to mistrust his claim of self-defense. Not so. At its best, the claim
of self-defense was not compelling. While J.W. was the initial aggressor, he had
retreated, leaving defendant’s apartment. Nonetheless, after defendant confirmed J.W.’s
location outside, he (defendant) retrieved his gun and pursued J.W., instead of locking the
apartment door and calling the police. Moreover, the reference to defendant’s prison
term was an isolated remark by one witness that was stricken from the record, and the
trial court admonished the jury not to consider it for any purpose. (People v. Avila (2006)
38 Cal.4th 491, 574 [no abuse of discretion in denying a mistrial motion after a witness
5 Defendant speculates on the amount of time the jury deliberated on its first day by noting the record shows that deliberations began at 2:25 p.m., but does not indicate the time they ended that day. On the next morning, deliberations began at 9:02 a.m., and 19 minutes later jurors indicated they had reached a verdict.
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mentioned the defendant recently getting out of prison because the court admonished the
jury not to consider it for any purpose]; People v. Valdez (2004) 32 Cal.4th 73, 124-125
[where witness volunteered that defendant had been at Chino prison, no error in denying
mistrial because reference was isolated and prejudice curable by instruction].)
Finally, defendant challenges the trial court’s reliance on Prysock. Prior to
sentencing, defense counsel requested the court reconsider its decision not to give
defendant a new trial. In response, the court noted that it had immediately sustained the
objection to the officer’s testimony and instructed the jury to disregard it. It added, “One
further observation I would make. There usually is no prejudice if . . . there is a timely
objection and proper admonition is given to the jury. And so I would cite [Prysock] for
that proposition.” In Prysock, the objectionable testimony was the prosecutor’s statement
in closing argument that the codefendant had a Fifth Amendment privilege not to testify,
but that if he “‘would have made any statement to the police admitting striking [the
victim], you[ would have] heard about it in court.’” (Prysock, supra, 127 Cal.App.3rd at
p. 997.) The court sustained the defense objection and directed the jury to disregard the
prosecutor’s argument referring to calling the codefendant to testify. (Id. at p. 998.) The
Court of Appeal held that “if the remark constituted misconduct, the prompt
admonishment cured any harm.” (Ibid.)
Defendant contends Prysock does not apply because “the inadmissible statement
there was the prosecution’s improper argument about the co-defendant,” and the stricken
argument “was not unduly prejudicial because it was 1) argument, and 2) it was not likely
[to] result in any emotional bias or something that would stick in the minds of the juror[s]
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such that the defendant’s chances of receiving a fair trial were irreparably damaged.”
Even if we assume the trial court’s reliance on Prysock was misplaced, we still conclude
the court did not abuse its discretion in denying defendant’s motion for mistrial because,
as we later explain, sufficient evidence supports the jury’s verdict. (People v. Dawkins
(2014) 230 Cal.App.4th 991, 1004 [“A ‘ruling or decision, itself correct in law, will not
be disturbed on appeal merely because given for a wrong reason. If right upon any
theory of the law applicable to the case, it must be sustained regardless of the
considerations which may have moved the trial court to its conclusion. [¶] . . . [¶] In
other words, it is judicial action, and not judicial reasoning or argument, which is the
subject of review; and, if the former be correct, we are not concerned with the faults of
the latter.’ [Citation.]”].)
B. The Trial Court Properly Denied Defendant’s Section 1118.1 Motion.
At the close of evidence, defendant moved under section 1118.1 for an entry of
judgment of acquittal on all counts, but in particular the attempted murder charge. The
trial court denied defendant’s motion in its entirety; defendant appeals the court’s ruling
as to the attempted murder charge only.
1. Further background information.
In support of the section 1118.1 motion, defense counsel argued three paths to a
conviction on a lesser charge. First, he claimed that, at most, defendant should be
convicted of attempted second degree murder because the evidence was insufficient to
establish willful premeditation since defendant did not bring a gun to the fight, it “was
already at the property.” Second, counsel asserted they had made a case for imperfect
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self-defense and provocation which lowers the conviction to attempted voluntary
manslaughter. And finally, counsel contended they had proved “self-defense, which is a
complete defense to all of the offenses except for the felon in possession.” In response,
the prosecutor pointed out that defendant had told the police “very clearly that his intent
was to, quote, kill him back” and there is no evidence he feared “imminent danger.” The
prosecutor argued the evidence establishes premeditation and deliberation because
defendant went outside, then back into his apartment for the specific purpose of obtaining
his gun, instead of using his phone to call for help. Defense counsel replied by referring
to the definition of “deliberated” and “premeditation,” and argued defendant’s action is
“really the definition of an irrational and impulsive act rather than one involving a careful
weighing of considerations for or against his choice.”
The trial court found sufficient and substantial evidence to sustain a conviction on
appeal. It noted that “premeditation and deliberation can be made all in a split second . . .
depend[ing] on the nature of the evidence . . . and the action and conduct of the defendant
at the time of the commission of the offense.”
2. Standard of review.
A judgment of acquittal of a charge is mandatory “if the evidence then before the
court is insufficient to sustain a conviction of such offense . . . on appeal.” (§ 1118.1.) A
section 1118.1 motion “‘weed[s] out as soon as possible those few instances in which the
prosecution fails to make even a prima facie case.’” (People v. Stevens (2007) 41 Cal.4th
182, 200.) Therefore, where “there is evidence from which an inference of guilt is
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justified a case will not be taken from the jury because an inference of innocence might
also be drawn therefrom.” (People v. Wescott (1950) 99 Cal.App.2d 711, 714.)
In deciding a section 1118.1 motion, the trial court inquires “whether from the
evidence . . . including reasonable inferences to be drawn therefrom, there is substantial
evidence of the existence of every element of the offense charged.” (People v. Coffman
and Marlow (2004) 34 Cal.4th 1, 89.) We review “the denial of a section 1118.1 motion
under the standard employed in reviewing the sufficiency of the evidence to support a
To negate malice, passion must obscure a defendant’s reason “‘“‘to such an extent
as would cause the ordinarily reasonable person of average disposition to act rashly and
without deliberation or reflection, and from such passion rather than from judgment.’”’”
(Millbrook, supra, 222 Cal.App.4th. at p. 1137.) Imperfect self-defense requires an
actual if unreasonable belief in a need “‘to defend oneself from imminent peril to life or
great bodily injury.’” (In re Christian S. (1994) 7 Cal.4th 768, 773.) If there is some
evidence that a defendant charged with attempted murder was subject to such a passion,
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or sincerely perceived a need to defend himself, the prosecution must prove beyond a
reasonable doubt that the defendant did not act in the heat of passion, and did not act with
an actual belief in the need to defend himself with deadly force. (People v. Rios (2000)
23 Cal.4th 450, 461-462; Millbrook, at pp. 1136-1137.) If the prosecution fails to bear
that burden, the defendant can be convicted only of attempted voluntary manslaughter.
4. Analysis.
Defendant argues the evidence does not support a finding that he acted with
premeditation and deliberation.
Contrary to his claims, we conclude substantial evidence supports the jury’s
finding of premeditation and deliberation. First, the evidence is sufficient to show
defendant engaged in a level of planning prior to the shooting. Although defendant and
J.W. provided different versions of J.W.’s assault on defendant, they both agreed that
J.W. was the initial aggressor. J.W. testified that he hit defendant on the head two times
with a pole; defendant acknowledged (to the investigating detective) that he had been hit
in the face with a pole, but claimed he thought he had been shot. After hitting defendant,
J.W. took one of defendant’s guns, and went to a neighbor’s house, asking the neighbor
to call the police. Despite believing he had been shot in the face, defendant walked out of
his apartment to track J.W. Upon confirming J.W.’s location, defendant went back inside
his apartment, grabbed his other gun, pursued J.W., and fired at him until the gun was
empty. This evidence shows defendant engaged in a level of planning prior to the
shooting. (See People v. Elliot (2005) 37 Cal.4th 453, 471 [“That defendant armed
himself prior to the attack ‘supports the inference that he planned a violent encounter.’”];
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see also People v. San Nicolas (2004) 34 Cal.4th 614, 658 [“The act of planning—
involving deliberation and premeditation—requires nothing more than a ‘successive
thought[] of the mind.’”].) A reasonable jury could have concluded defendant’s conduct,
coupled with his statement that he thought he was going to die and he “gotta try to kill
[J.W.] back or something” established that defendant planned the attack immediately
before shooting J.W.
Second, as to motive, defendant was angry that J.W. had attacked him and thought
he was going to die. A reasonable jury could have interpreted defendant’s “demeanor” as
suggesting he arrived at the neighbor’s apartment with the objective of extracting revenge
on J.W. (See People v. Lunafelix (1985) 34 Cal.4th 614, 102 [“[T]he law does not
require that a[n] [attempted] first degree murderer have a ‘rational’ motive for killing.
Anger at the way the victim talked to him [citation] or any motive, ‘shallow and distorted
but, to the perpetrator, genuine’ may be sufficient.”].)
Finally, as to the nature of the shooting, defendant did not fire one shot; rather, he
unloaded his gun at J.W. who suffered shots to his arm, chest, back and abdominal areas.
(People v. Harris (2008) 43 Cal.4th 1269, 1287 [holding substantial evidence of
premeditation and deliberation existed because the “defendant was armed with a knife
and stabbed [victim] without provocation directly in the heart with enough force to
penetrate part of a rib and pierce entirely through the heart.”].)
Notwithstanding the above, defendant contends the evidence shows that he acted
with “an actual belief that he needed to defend himself from imminent great bodily injury
or death, specifically that [J.W.] still had a gun and was going to shoot him again.”
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Alternatively, he asserts there is substantial evidence that he acted in the heat of passion
in response to provocation—J.W. hitting him (defendant) on the head with a pole. We
conclude there is no evidence to support any circumstance that would have permitted
defendant to use deadly force against J.W.
It is uncontroverted that J.W. was the initial aggressor; however, he retreated, left
defendant’s apartment, and went to the neighbor’s apartment. In response to J.W.’s
attack, defendant did not lock the door to his apartment and call the police. Rather, he
pursued J.W. outside of his (defendant’s) apartment. As we previously stated, after
confirming J.W.’s location, defendant went back inside his apartment, retrieved his other
gun, ran back outside, confronted J.W., and fired shots until the gun was empty because
he “gotta try to kill him back or something.” When asked why he did not shut and lock
his door and call the police, defendant replied, ““But I didn’t start this. I didn’t initiate it.”
He justified his act of chasing down J.W. by pointing out that “cops kill people for less.”
Based on this evidence, the jury reasonably could infer that defendant was no longer
acting under the fear of imminent death/bodily injury or under the heat of passion, but for
revenge or punishment. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1144 [passion for
revenge will not reduce murder to manslaughter].)
Since substantial evidence exists to support the crime of attempted murder, the
trial court properly denied defendant’s section 1118.1 motion for judgment of acquittal
and allowed the matter to go to the jury.
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III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J.
We concur:
MILLER J.
FIELDS J.
19
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's convictions, holding that the trial court did not abuse its discretion in denying a mistrial after a witness mentioned the defendant's prior prison term, and that sufficient evidence supported the jury's finding of willful, premeditated, and deliberate attempted murder.
Issues
Did the trial court abuse its discretion by denying a motion for mistrial after a witness testified about the defendant's prior prison term?
Was there sufficient evidence to support the jury's finding of willful, premeditated, and deliberate attempted murder under section 1118.1?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction.”