People v. Cooper CA4/1

Filed 2/2/23 P. v. Cooper CA4/1 Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078345

Plaintiff and Respondent,

v. (Super. Ct. No. CR127408)

CALVIN COOPER,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, David M. Gill, Judge. Reversed and remanded with directions. Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Lynne E. McGinnis and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.

Calvin Cooper appealed an order summarily denying his petition to

vacate his first degree murder conviction under Penal Code1 section 1172.6

(formerly section 1170.95).2 The trial court found he was not entitled to relief, as a matter of law, because the jury returned a true finding on a robbery-murder special circumstance with the murder conviction. The jury’s finding on the special circumstance was made before the California Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which clarified the meaning of the terms “major participant” and “reckless indifference to human life” necessary to support such felony-murder special-circumstance findings. (Banks, at pp. 797-798, 803; Clark, at pp. 608-624.) Cooper argued that a felony-murder special-circumstance finding made before Banks and Clark did not preclude him from making a prima facie showing of eligibility for relief under section 1172.6. In an unpublished opinion, we agreed with Cooper and remanded the matter for reconsideration. The People submitted a petition for review to the California Supreme Court, which granted the request. After reaching its decisions in People v. Strong (2022) 13 Cal.5th 698 (Strong), our high court transferred the matter back to us with directions to vacate our previous opinion and reconsider the cause. We have complied with the California Supreme Court’s instructions and considered Cooper’s claims, taking into account Strong. In their supplemental briefs (see Cal. Rules of Court, rule 8.200(b)(1)), the parties