People v. Cooper CA1/4

Filed 10/15/20 P. v. Cooper CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A158253 v. DERRICK ANTOINE COOPER, (Contra Costa County Super. Ct. No. 51318666) Defendant and Appellant.

In 2017, this court affirmed Derrick Antoine Cooper’s conviction of first degree murder (Pen. Code,1 § 187) but remanded the case for the trial court to exercise its newly conferred discretion under Senate Bill No. 620 (SB 260) to consider whether to strike a firearm enhancement. The court declined to strike the enhancement, and Cooper appeals. We conclude that Cooper has neither rebutted the presumption that the trial court knew and applied the governing law nor shown that any misapprehension affected the court’s sound exercise of its discretion. We shall therefore affirm. Factual and Procedural History Cooper’s conviction was affirmed in People v. Cooper (Dec. 5, 2017, A143556 [nonpub. opn.]). The opinion describes how Cooper and codefendants James Green and Antwone Johnson, who belonged to a North Richmond gang,

1 All statutory references are to the Penal Code.

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killed Lincoln Plair, who they mistakenly assumed to be a member of a rival Central Richmond gang. Cooper and Johnson, each armed, walked toward Plair, who was washing a car on the sidewalk as children played nearby. Multiple shots were fired, killing Plair. Afterwards Cooper discovered that his gun had jammed. The two-count information charged each defendant with Plair’s murder (§ 187) and with participation in a criminal street gang (§ 182.5). As to each defendant, it alleged two enhancements relevant to this appeal: (1) that the murder was committed to benefit a criminal gang and with the specific intent to further criminal conduct by gang members (§ 186.22, subd. (b)(1)) and (2) that each defendant personally and intentionally fired a gun causing great bodily injury or death (§ 12022.53, subd. (d)). The latter allegation also cited subdivision (e)(1) of section 12022.53, under which each defendant could be vicariously subject to a firearm enhancement. Under subdivision (e)(1), an enhancement may be imposed on a defendant not found to have personally shot the victim if the jury found that the defendant was a principal in the offense, that he or she violated the criminal-gang statute (§ 186.22, subd. (b)), and that another principal in the offense fired a gun in violation of subdivision (d). (§ 12022.53, subd. (e)(1)). A jury found Cooper guilty on each count and found that the murder was committed to benefit a street gang (§ 186.22, subd. (b)(1)) and that a principal personally fired a gun, causing death (§ 12022.53, subds. (d) & (e)(1)). The jury found not true the allegation that Cooper himself personally fired a gun (Id., subd. (d)). The court sentenced Cooper to a term of 25 years to life on the murder count and to a consecutive term of 25 years to life on the vicarious firearm enhancement. (Id., subd. (e)(1)). On the gang enhancement,