People v. Cooc CA3

Filed 3/2/22 P. v. Cooc CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C092833

Plaintiff and Respondent, (Super. Ct. No. 04F00144)

v.

JIMMY CHI COOC,

Defendant and Appellant.

In 2005, a jury found defendant Jimmy Chi Cooc guilty of first degree murder and found true he was a principal in the crime and one of the principals in the crime was armed with a firearm. Defendant appeals the denial of his petition for resentencing pursuant to Penal Code section 1170.95, arguing the trial court improperly conducted a factual analysis at the prima facie stage.1 The Attorney General concedes the error. We reverse and direct the trial court to issue an order to show cause under section 1170.95, subdivision (c).

1 Unspecified statutory references are to the Penal Code.

1

I. BACKGROUND A. Statement of Facts The facts of this crime are complex. In light of the current procedural stage and the Attorney General’s concession, however, we provide only an abbreviated version of the facts from our prior unpublished opinion. (People v. Ly et al. (Sept. 23, 2008, C052280) [nonpub. opn.] (Ly).) “On a December night just before Christmas, Matthew Seivert was lured to Tahoe Park in Sacramento by his ex-girlfriend, Nicole Carroll. As the couple talked on a park bench, a group of 12 youths in three separate cars waited stealthily to attack him. When Seivert got into his car and attempted to leave, the youths blocked his exit and one of them shot him to death. [¶] Carroll and four members of the group were charged with the murder. . . . [At trial,] the jury heard evidence of a conspiracy to ‘jump’ Seivert because he had made racial slurs about Asians.” (Ly, supra, C052280.) The evidence demonstrated defendant and the man who actually shot Seivert both got out of their respective cars with guns drawn during the altercation. (Ibid.) The jury found defendant guilty of first degree murder. (§ 187.) It also found defendant was a principal in the murder and one or more principals were armed with a firearm. (§ 12022, subd. (a)(1).) The jury convicted the other three accomplices of first degree murder. (Ly, supra, C052280.) Further, the jury found the man who shot Seivert guilty of first degree murder and found true the special circumstances allegation he committed the murder by lying in wait. (Ibid.) We affirmed the conviction on direct appeal. (Ly, supra, C052280.) In our ruling, we noted despite the fact the jury was instructed on felony murder under CALJIC No. 8.51, the verdict of first degree murder against the four accomplices (including defendant) and the lying in wait special circumstances found against the actual killer, “render[ed] it virtually certain that the jury did not arrive at a murder verdict by using the felony-murder rule.” (Ly, supra, C052280.) We rejected defendant’s argument the jury