People v. Cooper CA1/4

Filed 3/16/21 P. v. Cooper CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A160515 v. DERRICK ANTOINE COOPER, (Contra Costa County Super. Ct. No. 05-131866-6) 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 limited purposes that included considering whether to strike an enhancement. (People v. Cooper (Dec. 5, 2017, A143556 [nonpub. opn.]) (Cooper I).) On remand, the trial court declined to strike the enhancement. Cooper appealed from that order in July 2019. In October 2020, this court issued an opinion affirming that order (People v. Cooper (Oct. 15, 2020, A158253 [nonpub. opn.]) (Cooper II)). While the Cooper II appeal was pending, Cooper filed a petition in the trial court pursuant to newly enacted section 1170.95, which authorizes resentencing of persons convicted of felony murder or murder on a theory of natural and probable consequences under circumstances that do not support a conviction under sections 188 and 189 as modified by Senate Bill No. 1437,

1 All statutory references are to the Penal Code.

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effective January 1, 2019. In June 2020, while Cooper II was still pending, the trial court issued an order denying the section 1170.95 petition. Cooper appeals, contending the order is void because the pendency of the Cooper II appeal deprived the trial court of jurisdiction to resolve his section 1170.95 petition. The Attorney General urges this court to affirm the order but despite practical advantages of reviewing the merits of the order at this point, the trial court lacked jurisdiction to issue it, so that we must remand with directions to vacate the order. Factual and Procedural History This court’s 2017 opinion affirming Cooper’s conviction (Cooper I) describes how Cooper and codefendants James Green and Antwone Johnson, who belonged to a street gang, killed Lincoln Plair, who they mistakenly assumed to be a member of a rival gang. Cooper and Johnson, each armed, walked toward Plair, who was washing a car on the sidewalk. Multiple shots were fired, killing Plair. Cooper later discovered that his gun had jammed. The information charged each defendant with murder (§ 187) and alleged as an enhancement that each personally and intentionally fired a gun causing great bodily injury or death, and was vicariously responsible for another defendant having done so (§ 12022.53, subds. (d)–(e)). The jury found Cooper guilty of murder, found not true the allegation that he personally fired a gun (§ 12022.53, subd. (d)), but found true the allegations that the murder was committed to benefit a street gang (§ 186.22, subd. (b)(1)) and that a principal fatally fired a gun (§ 12022.53, subd. (d)). Those findings subjected Cooper to a vicarious firearm-use enhancement. (§ 12022.53, subd. (e)(1).) The court sentenced him to 25 years to life on the murder count and a consecutive term of 25 years to life on the enhancement.