People v. Cooper CA1/4

Filed 3/29/24 P. v. Cooper CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A168877

v. (Contra Costa County DERRICK ANTOINE COOPER, Super. Ct. No. 05-131866-6) Defendant and Appellant.

This is the fifth appeal arising from defendant Derrick Antoine Cooper’s 2014 conviction of first degree murder (Pen. Code,1 § 187), which this court affirmed in 2017. (People v. Cooper (Dec. 5, 2017, A143556) [nonpub. opn.] (Cooper I).) Cooper now appeals an order denying his petition for resentencing under section 1172.6.2 Appointed appellate counsel

1 All statutory references are to the Penal Code.

2 At the time of the proceedings below, the provision was

codified as section 1170.95. The Legislature renumbered the provision in 2022 without substantive change as section 1172.6. (Stats. 2022, ch. 58, § 10.) All references in this opinion are to the current section number.

filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216. Cooper filed a supplemental brief. We affirm. FACTUAL AND PROCEDURAL HISTORY Cooper I set forth the pertinent facts regarding the murder of Lincoln Plair, who was killed by Cooper and his codefendants Antwone Johnson and James Green. (Cooper I, supra, A143556.) Cooper and his codefendants, who belonged to a street gang, killed Plair based on their mistaken assumption that he belonged to a rival gang. (Cooper I, supra, A143556.) The two-count information charged each defendant with murder (§ 187) and participation in a criminal street gang (§ 182.5). It also alleged two enhancements as to each defendant: (1) that he committed murder to benefit a gang (§ 186.22, subd. (b)(1)); and (2) that he, as a principal, personally used and intentionally and personally fired a gun in a way that caused death (§ 12022.53, subds. (b)–(d), (e)(1)3). A jury found Cooper guilty of both counts, and found true the allegations that the murder was committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)) and that a principal in the murder personally discharged a firearm, causing great bodily injury and death to Plair (§ 12022.53, subd. (e)(1)). (Cooper I, supra,