People v. Cooley CA4/3

Filed 11/24/20 P. v. Cooley CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent, G059100

v. (Super. Ct. No. 99NF2493)

JERIMICHAEL COOLEY, OPINION

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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This is an appeal from a trial court’s denial of defendant Jerimichael Cooley’s petition to vacate his murder conviction and to be resentenced. (Pen. Code, 1 § 1170.95.) Cooley’s appointed counsel found no arguable issues. (See People v. Wende (1979) 25 Cal.3d 436 (Wende).) Cooley filed a supplemental brief. Because a jury found Cooley to be the actual killer and not an accomplice, we affirm the trial court’s order denying Cooley’s section 1170.95 petition.

I FACTS AND PROCEDURAL BACKGROUND In 2005, a jury found Cooley guilty of murder and found true an allegation he personally used a dangerous or deadly weapon (a knife) during the crime. The trial court imposed a 30-year prison sentence. This court affirmed the judgment on appeal. (People v. Cooley (Apr. 10, 2007, G035898) [nonpub. opn.].) In 2019, Cooley filed a section 1170.95 petition. Cooley stated that he “was convicted of second-degree murder pursuant to the ‘common-law second-degree- felony-murder’ rule.” Cooley attached as exhibits the jury instructions from his trial and the prosecutor’s closing argument. Cooley argued he “could not now be convicted of ‘second-degree murder’ under the common-law felony murder rule.” The trial court denied the petition: “A review of court records indicates that the defendant is not eligible under the statute. The defendant’s conviction for murder is not based on felony-murder or on a natural and probable consequences theory of vicariously liability for aiders and abettors. The defendant was convicted of committing the murder by his own hand. He was the actual killer.” Cooley filed an appeal. Appointed counsel stated: “No arguable issues have been identified.” Cooley filed a supplemental brief on his own behalf.