Filed 11/8/21 P. v. Cooper CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

COYETTA LYNN COOPER,

Defendant and Appellant.

F081497

(Super. Ct. No. BF103655A)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Kern County. Colette M. 

Humphrey, Judge.

Steven A. Torres, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Eric Christoffersen, Lewis A. 

Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and 

Respondent.

-ooOoo-

*Before Levy, Acting P. J., Peña, J. and Snauffer, J.
2.

INTRODUCTION

In 2004, defendant Coyetta Lynn Cooper pleaded no contest to second degree 

murder (§ 187, count 1). After the passage of Senate Bill No. 1437 (2017–2018 Reg. 

Sess.) (Senate Bill 1437), defendant filed a Penal Code section 1170.95 petition for 

resentencing. (Undesignated statutory references are to the Penal Code.) The court 

denied the petition without issuing an order to show cause. Defendant now challenges 

the denial of her petition, asserting the record did not establish she was categorically 

ineligible for relief, and the court erred in using the facts presented in the probation report 

as a basis for denying her petition.

We reverse the court’s order and remand for further proceedings consistent with 

this opinion.

FACTUAL ANDPROCEDURALBACKGROUND

Charge and Plea

In 2003, defendant was charged with first degree murder (§ 187, count 1); assault 

of a child under the age of eight by means of force likely to cause great bodily injury 

which results in death (§ 273ab, count 2), and felony child endangerment (§ 273a, subd. 

(a), count 3). In 2004, defendant pleaded no contest to second degree murder (§ 187, 

count 1) and the remaining charges were dismissed.1 At the plea hearing, the parties 

stipulated there was a factual basis for the plea without referencing any particular facts or 

documents.

Presentence Probation Report

The presentence probation report submitted to the court included a summary of the 

circumstances of the offense taken from a report completed by the Kern County Sheriff’s 

Department, which stated in part:

“On August 4, 2003, at approximately 6:40 a.m., the victim ... age 

1, was taken to Kern Medical Center for medical treatment by his caretaker, 

1Defendant subsequently moved to withdraw her plea. The request was denied.
3.

the defendant, Coyetta Cooper. [The victim] was possibly dead upon 

arrival at the hospital and medical staff noted there was apparent trauma to 

his abdomen and rectum. At that time homicide proceedings were initiated.

“Upon their arrival at the hospital, detectives first made contact with 

Coroner Investigator Madelaine Kaiser. Kaiser informed the detectives [the 

victim] had several visible injuries on his body and his anus appeared to 

have trauma and human tissue was visible in his diaper.”

According to the probation report, defendant reported to police she was the 

victim’s caretaker; she also cared for his four other siblings. She informed officers she 

had bathed the victim the night before his death and he did not act like he was hurt. 

Defendant “was insistent she never saw any injuries on the victim and she never saw any 

blood.” She stated the morning of the victim’s death, she told him to get up. He replied 

“‘Okay Momma’” and then he laid down and stopped breathing all of a sudden. 

Defendant reported she began screaming and her neighbor Adell Barazas ran over to 

defendant’s apartment. Defendant and Barazas got in the car to take the victim to the 

hospital; but they first went looking for defendant’s husband, Keithen Cooper. They 

located Keithen, and he drove them to the hospital.

Defendant denied she or Keithen hurt the victim. She stated she did not know how 

this could have happened, and denied ever seeing Keithen molest any of the children in 

her care. She reported her apartment was secure and no one could have gotten into her 

residence and harmed the victim. “[S]he informed officers she understood [the victim]’s 

death occurred during her watch, but she did not cause his injuries intentionally or 

accidentally and she was not covering up for anyone either. She informed the officers 

she never crossed the line of child abuse while disciplining any of the children and she 

would cry often afterwards if she did have to discipline the children.”

The probation report also stated the officer contacted Adell Barazas and Keithen 

Cooper. Barazas denied ever seeing defendant or Keithen abuse the children. Keithen 

informed the police he was not currently living in the home. He denied defendant would 
4.

hurt the victim. He also denied that any of the other children would have hurt the victim; 

Keithen stated, “I don’t know what happened. Just strange.”

2

The probation report further noted, “[d]uring the course of the investigation 

regarding the death of [the victim], the defendant and her husband, Keithen Cooper, were 

also being investigated regarding possible molest of several children who resided in their 

home beginning in 1993 to the present day.” Keithen was subsequently arrested and 

booked into the Kern County jail. The defendant was also arrested for molesting children 

and failing to prevent the abuse of a child at the hands of her husband.

Petition for Resentencing

In 2019, defendant submitted a petition for resentencing pursuant to section 

1170.95 using a preprinted form. She checked boxes stating she pleaded guilty or no 

contest to first or second degree murder in lieu of going to trial because she believed she 

could have been convicted of first or second degree murder pursuant to the felony-murder 

rule or the natural and probable consequences doctrine and she was not the actual killer. 

She also checked a box stating, “I request that this court appoint counsel for me during 

this re-sentencing process.”

In the People’s opposition to the petition, they derived their statement of facts 

“primarily from the pre-sentence [probation] report.” They argued those facts established 

defendant was the actual killer and, accordingly, she had failed to meet her burden of 

making a prima facie showing of eligibility for relief. They also argued defendant could 

not have been prosecuted under the felony-murder rule because felony child 

endangerment (§ 273a, subd. (a)) or an assault crime such as that charged pursuant to 

section 273ab could not form the basis for a prosecution for felony murder.

2According to the probation report, “officers arranged to conduct computer voice stress 

analysisinterviews with Keithen and [defendant]. Throughout the interview, Keithen and 

[defendant] denied any involvement in causing the blunt force trauma which had killed [the 

victim]. The voice stress analysis indicated deception on the answers to the relevant questions 

by both Keithen and [defendant].”
5.

The court appointed defendant counsel who filed a reply to the People’s 

opposition brief. Defendant’s reply brief also included a statement of facts containing

many of the facts included in the factual summary in the probation report. Defendant 

acknowledged she “was the only person charged with the murder of [the victim].” 

However, she argued “the theory relied upon for her murder conviction is not necessarily 

clear as [she] did not proceed to preliminary hearing and the facts ascertained within the 

police reports and probation report do not clearly establish that [she] directly caused the 

injuries to [the victim].” And, given defendant’s husband’s history of molestation—

including forced anal penetration—it could be argued he injured the victim during an act 

of molestation that resulted in the victim’s death. Accordingly, defendant could have 

been prosecuted as the actual killer or as an aider and abettor of her husband under the 

natural and probable consequences theory.

After the parties submitted briefing, the court denied the petition. In so holding, 

the court explained:

“I’m going to make a specific finding that [defendant]’s failed to make a 

prima facie showing that she’s eligible for this relief, and find that there’s 

no circumstances under which this is a conviction that was under an aiding 

and abetting theory, or probable consequence theory, that she was actually 

the person responsible for the death of the child. So she doesn’t qualify for 

the relief under this statute, so I’m going to deny the request.”

DISCUSSION

Defendant challenges the denial of her petition for resentencing. For the reasons 

that follow, we agree the court erred in denying defendant’s petition without issuing an 

order to show cause or holding an evidentiary hearing.

1. Senate Bill 1437 and Section 1170.95

On September 30, 2018, the Governor signed Senate Bill 1437, which became 

effective on January 1, 2019. Senate Bill 1437 “amend[ed] the felony murder rule and 

the natural and probable consequences doctrine, as it relates to murder, to ensure that 

murder liability is not imposed on a person who is not the actual killer, did not act with 
6.

the intent to kill, or was not a major participant in the underlying felony who acted with 

reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) It amended 

section 188, which defines malice, and section 189, which defines the degrees of murder 

to address felony-murder liability, and it added section 1170.95, which provides a 

procedure by which those convicted of murder can seek retroactive relief if the changes 

in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, 

§§ 2–4.)

Accordingly, section 188 now provides that, “[e]xcept as stated in subdivision (e) 

of Section 189, in order to be convicted of murder, a principal in a crime shall act with 

malice aforethought. Malice shall not be imputed to a person based solely on his or her 

participation in a crime.” (§ 188, subd. (a)(3), italics added.) The change reflects the 

Legislature’s intent that “[a] person’s culpability for murder must be premised upon that 

person’s own actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).)

Additionally, section 189 previously stated, “All murder ... which is committed in 

the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, 

mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 

288a, or 289, or any murder which is perpetrated by means of discharging a firearm from 

a motor vehicle, intentionally at another person outside of the vehicle with the intent to 

inflict death, is murder of the first degree.” Senate Bill 1437 amended section 189, in 

part, by adding subdivision (e), which provides:

“A participant in the perpetration or attempted perpetration of a felony 

listed in subdivision (a) in which a death occurs is liable for murder only if 

one of the following is proven: [¶] (1) The person was the actual killer. 

[¶] (2) The person was not the actual killer, but, with the intent to kill, 

aided, abetted, counseled, commanded, induced, solicited, requested, or 

assisted the actual killer in the commission of murder in the first degree. 

[¶] (3) The person was a major participant in the underlying felony and 

acted with reckless indifference to human life, as described in subdivision 

(d) of Section 190.2.”
7.

Section 1170.95 permits those “convicted of felony murder or murder under a 

natural and probable consequences theory [to] file a petition with the court that sentenced 

the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on 

any remaining counts ....”

3

 (Id., subd. (a).) An offender may file a petition under 

section 1170.95 where all three of the following conditions are met:

“(1) A complaint, information, or indictment was filed against the petitioner 

that allowed the prosecution to proceed under a theory of felony murder or 

murder under the natural and probable consequences doctrine[;] [¶] (2) The 

petitioner was convicted of first degree or second degree murder following 

a trial or accepted a plea offer in lieu of a trial at which the petitioner could 

be convicted for first degree or second degree murder[;] [¶] [and] (3) The 

petitioner could not be convicted of first or second degree murder because 

of changes to Section 188 or 189 made effective January 1, 2019.” 

(§ 1170.95, subd. (a)(1)–(3).)

A trial court receiving a petition under section 1170.95 “shall review the petition and 

determine if the petitioner has made a prima facie showing that the petitioner falls within 

the provisions of this section.” (§ 1170.95, subd. (c).) In making this determination, 

“‘“the court takes petitioner’s factual allegations as true and makes a preliminary 

assessment regarding whether the petitioner would be entitled to relief if his or her factual 

allegations were proved. If so, the court must issue an order to show cause.”’” (People 

v. Lewis (2021) 11 Cal.5th 952, 971.)

“[T]he parties can, and should, use the record of conviction to aid the trial court in 

reliably assessing whether a petitioner has made a prima facie case for relief under 

subdivision (c).” (People v. Lewis, supra, 11 Cal.5th at p. 972.) However, “the prima 

facie inquiry under subdivision (c) is limited.” (Id. at p. 971.) “In reviewing any part of 

the record of conviction at this preliminary juncture, a trial court should not engage in 

‘factfinding involving the weighing of evidence or the exercise of discretion’” or “‘reject 

3The Legislature recently passed, and the Governor signed, a bill amending section 

1170.95. (Sen. Bill No. 775 (2021–2022 Reg. Sess.).) The amendments are not yet effective

(Cal. Const., art. IV, § 8, subd. (c)(1)) and, in any event, would not alter our analysis. We quote 

from the version of section 1170.95 presently in effect.
8.

the petitioner’s factual allegations on credibility grounds without first conducting an 

evidentiary hearing.’” (Id. at pp. 972, 971.) “‘However, if the record, including the 

court’s own documents, “contain[s] facts refuting the allegations made in the petition,”

then “the court is justified in making a credibility determination adverse to the 

petitioner.”’” (Id. at p. 971.)

If the petitioner has made a prima facie showing, the trial court “must issue an 

order to show cause.” (People v. Lewis, supra, 11 Cal.5th at p. 971.) The trial court must 

then hold a hearing “to determine whether to vacate the murder conviction and to recall 

the sentence and resentence the petitioner on any remaining counts in the same manner as 

if the petitioner had not been previously been [sic] sentenced, provided that the new 

sentence, if any, is not greater than the initial sentence.” (§ 1170.95, subd. (d)(1).) If a 

hearing is held, “[t]he prosecutor and the petitioner may rely on the record of conviction 

or offer new or additional evidence to meet their respective burdens.” (§ 1170.95, subd.

(d)(3).) “[T]he burden of proof shall be on the prosecution to prove, beyond a reasonable 

doubt, that the petitioner is ineligible for resentencing.” (Ibid.) “If the prosecution fails 

to sustain its burden of proof, the prior conviction, and any allegations and enhancements 

attached to the conviction, shall be vacated and the petitioner shall be resentenced on the 

remaining charges.” (Ibid.)

2. The Trial Court Erred in Failing to Issue an Order to Show Cause

Defendant argues the court erred in denying her petition without issuing an order 

to show cause. She asserts she filed a facially sufficient petition pleading facts which, if 

true, would entitle her to relief. She further contends she entered a plea pursuant to 

People v. West (1970) 3 Cal.3d 595 and, thus, she “never admitted she was the killer nor 

that she was actually guilty of the crime.” Additionally, the court accepted the plea 

without a factual basis. She argues the court should not have reviewed the probation 

report or used it to form the basis of the denial of her petition. She further contends she 

could have been prosecuted under the natural and probable consequences theory. The 
9.

People do not dispute defendant filed a facially sufficient petition. Instead, they respond 

the court properly considered the probation report as part of the record of conviction and 

used it to conclude defendant was ineligible for relief because she was convicted as the 

actual killer. They argue defendant’s challenge to the court’s consideration of the 

probation report on appeal is forfeited because she did not object below and she relied on 

the report in her reply to the People’s opposition to the petition.

It is true both parties discussed facts included in the probation report in their 

section 1170.95 petition briefing below. And defendant did not object to the People’s 

reference to or the court’s consideration of such facts in rendering its decision on 

defendant’s petition for resentencing. However, defendant never stipulated the facts 

contained in the probation report established the factual basis for her no contest plea to 

second degree murder. (See People v. Cooper (2020) 54 Cal.App.5th 106, 111–112,

123–126, rev. granted Nov. 10, 2020, S264684 [facts implied from preliminary hearing

transcript were insufficient to defeat § 1170.95 petition at prima facie stage where 

defendant did not stipulate they formed factual basis of plea and defendant did not have 

opportunity to challenge testimony].) Moreover, in the current proceeding, defendant 

disputes the facts in the probation report establish she was prosecuted as the actual killer.

Irrespective, we need not decide whether the court was entitled to consider such 

evidence at the prima facie stage because, even considering the facts in the probation 

report, the record before us does not establish defendant was categorically ineligible for 

relief as a matter of law. That is, neither the record of conviction nor the probation report 

conclusively establishes the theory on which defendant was convicted or contains facts 

refuting the allegations made in defendant’s petition. (See People v. Rivera (2021) 62 

Cal.App.5th 217, 233, 237, rev. granted June 9, 2021, S268405 [noting record of

conviction related to plea to murder generally lacks assurance of basis of conviction as

can be ascertained from jury trial].)
10.

Rather, the record reflects defendant was generically charged with murder, without 

specifying the theory on which the prosecution intended to proceed. (See People v.

Rivera, supra, 62 Cal.App.5th at p. 233, rev. granted [holding generic manner in which 

murder was charged did not limit People to prosecuting defendant on any particular 

theories; “neither felony murder nor murder under the natural and probable consequences 

doctrine need be separately pleaded”].) And, while defendant pleaded no contest to 

second degree murder and the probation report reflects she admitted the victim’s “death

occurred during her watch,” the report also states defendant repeatedly denied causing the 

victim’s injuries. Thus, whether defendant was the “actual killer” was a disputed fact. 

(See Rivera, at p. 234 [defendant not ineligible for relief as a matter of law where he

“made no admissions related to the murder other than pleading no contest to the count as

charged”].) And, in order to conclude defendant was prosecuted solely on the theory she 

was the actual killer, the court necessarily had to conduct a substantive evaluation of the 

evidence presented in the probation report, which was not permissible at the prima facie 

stage. (See People v. Cooper, supra, 54 Cal.App.5th at p. 124 [court necessarily engaged 

in factfinding at prima facie stage to conclude defendant could still be convicted of 

murder after Senate Bill 1437 given lack of clarity regarding defendant’s role in killing]; 

accord, People v. Lewis, supra, 11 Cal.5th at p. 972 [“trial court should not engage in 

‘factfinding involving the weighing of evidence or the exercise of discretion’” at prima 

facie stage].)

Put differently, this is not a situation where undisputed facts or admissions by 

defendant in the record conclusively establish she was only prosecuted as the actual killer 

or on some other ground rendering her categorically ineligible for relief. Rather, the 

probation report reflects there was a fact issue regarding defendant’s exact role in the 

victim’s death. And no other documents in the record of conviction rebut defendant’s 

contention in her petition that she pled guilty or no contest to first or second degree 

murder in lieu of going to trial because she believed she could have been convicted of 
11.

first or second degree murder at trial pursuant to the felony-murder rule or the natural and 

probable consequences doctrine. Thus, the trial court should have accepted the

defendant’s factual assertions in her petition as true, issued an order to show cause, and

proceeded to an evidentiary hearing. (See People v. Lewis, supra, 11 Cal. 5th at p. 971 

[“‘[A] court should not reject the petitioner’s factual allegations on credibility grounds 

without first conducting an evidentiary hearing’”]; People v. Duchine (2021) 60 

Cal.App.5th 798, 815 [“absent a record of conviction that conclusively establishes that 

the petitioner engaged in the requisite acts and had the requisite intent, the trial court 

should not question [the petitioner’s] evidence”]; cf. People v. Nguyen (2020) 53 

Cal.App.5th 1154, 1166–1168 [concluding preliminary hearing transcript, which parties 

stipulated provided factual basis for guilty plea, established defendant was direct aider 

and abettor].)

Accordingly, we reverse the court’s order denying the petition and remand for the 

court to issue an order to show cause and hold an evidentiary hearing to determine 

whether to vacate defendant’s murder conviction.

DISPOSITION

The order denying the section 1170.95 petition is reversed. On remand, the 

sentencing court is directed to issue an order to show cause and to conduct further 

proceedings as required under section 1170.95, subdivision (d), in light of the principles 

set forth herein.