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Filed 10/15/20 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ord ered published for purposes of rule 8.1115.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,

v. DERRICK ANTOINE COOPER, Defendant and Appellant. A15 8253
( Contra Costa County Super. Ct. No. 51318666 )

In 2017, this court affirmed Derrick Antoine Cooper’s conviction of first degree murder (Pen

. Code , 1 § 187) but remanded the case for the trial court to
exercise its newly conferred discretion under Senate Bill No. 620 ( SB 260 ) to consider whether to strike a firearm enhancement

. T he court declin ed to strike the enhancement , and Cooper appeals

. We conclude that C ooper has neither rebutt ed the presumption that the trial court knew and applied the governing law nor shown that any mis apprehension affected the court’s
sound exercise of its discretion

. W e shall therefore affirm.

Factual and Procedural History Cooper’s conviction was affirmed in People v. Cooper ( Dec

. 5 , 201 7 , A 143556 [nonpub. opn.] )

. The opinion describes how Cooper and codefendants James Green and Antwone Johnson , who belonged to a North Richmond gang,

1 All statutory references are to the Penal Code.2

killed Lincoln Plair, who they mistakenly assumed to be a member of a rival Central Richmond gang

. Cooper and Johnson, each armed , walked toward Plair, who was washing a car on the sidewalk as children played nearby.
M ultiple shots were fired , killing Plair . Afterwards Cooper discovered that his gun had jammed

. The two

- count information charged each defendant with Plair’s murder (§ 187) and with participation in a criminal street gang (§ 182.5). As to each defendant , it alleged two enhancements relevant to this appeal : (1) that the
murder was committed to benefit a criminal gang and with the specific intent to further criminal conduct by gang members (§ 186.22, subd. (b)(1)) and (2 ) that each defendant personally and intentionally fired a gun ca using great bodily injury or death (§ 12022.53, subd. (d))

. The latter allegation also cited subdivision (e)(1) of section 12022.53 , u nder which each defendant could be vicariously subject to a firearm enhancement . Under subdi vi sion (e)(1) , an enhancement may be imposed on a defendant not found to have personally shot the victim if the jury found that the defendant was a principal in the offense , that he or she violated the criminal

- gang statute (§ 186.22, subd. (b)),
and that an other principal in the offense fired a gun in viola tion of
subdivision (d). (§ 12022.53 , subd. (e)(1)). A jury found Cooper guilty on each count and found that the murder was committed to benefit a street gang (§ 186.22, subd. (b)(1)) and that a principal personally fired a gun , causing death (§ 12022.53, subd s

. (d) & (e)(1)). The jury found not true the allegation that Cooper himself personally fired a gun ( Id. , subd. (d)). The court sentenced Cooper to a term of 25 years to life on the murder count and to a consecutive term of 25 years to life on the vicarious firearm enhancement

. ( Id. , subd. (e)(1)). On the gang enhancement,3

the court imposed a 10

- year term but stayed that term pursuant to section 654. 2
T his court affirmed the conviction but remanded the case to the trial

court for “ limited purposes ” that included , as relevant here, “ determining whether it should in the interest of justice strike the firearm enhancement imposed pursuant to section 12022.53

. ” On remand, Cooper filed a brief asking the court to exercise its discretion to strike the firearm enhancement imposed pursuant to section
12022.53 , subdivision (e) (1)

. A lternative ly he request ed the court to strike the enhancement and replace it with a lesser included enhancement pursuant to section 12022 , subdivision (a)(1). In support of that request, Cooper cited People v. Morrison (2019) 34 Cal.App.5th 217, 222 ( Morrison ) for the proposition that a court has authority to strike or dismiss an enhancement found true and impose a lesser

- included enhancement , whether or not alleged and found true.
The prosecutor did not file an opposition. At the hearing, she opposed
the request to strik e the enhancement but did not mention Morrison o r the alternative request to substitute a lesser

- included enhancement. N either defense counsel nor the court mentioned Morrison or raised that issue at the hearing

. T he court declined to strike the enhancement , explaining : “I would note in regard to accepting responsibility that Mr. Cooper did testify under oath at the trial that he was not involved in this incident. And certainly that

. . . militates against my striking the gun enhancement. [¶] I watched Mr. Cooper during t he trial. I do think at that time he could be classified as a youngster.

2 On count two (participation in a criminal street gang) , the court imposed a sentence of 25 years to life , which it also stayed under section 654.4

I think he did not appreciate the gravity of what had occurred. He did not appreciate the gravity with which the criminal justice system operated under such an occurrence, because I t hink it’s fair to say that he was young and naïve. Unfortunately, he’s learned a lot since then. My empathy for Mr. Cooper being so young at that time is really addressed by the Youthful Offender laws that have come into effect. [¶] I have to say that what occurred was horrendous. Getting out of the car with Mr. Johnson, walking down the street in Central where there were children and a 19

- year
- old washing cars, and just firing at him is unconscionable. It’s so obviously horrendous.
Mr. Plair was indeed a hero by pushing those children out of harm’s way, because certainly Mr. Cooper and Mr. Johnson were not concerned about those children. It’s only an act of fate that Mr. Cooper’s bullet didn’t kill
Mr. Plair because the gun jammed, and there were certai nly casings from the

gun. [¶] So the facts of the case itself, the fact that Mr. Cooper chose to lie under oath and not accept responsibility, and the fact that I stayed the gang enhancement because of the gun enhancement, all point towards my not striking the gun enhancement at this time. He’s gonna get the benefit of the Youthful [ O ] ffender laws. And I think it’s appropriate given the fact that he went to trial and was convicted that I leave the sentence as it is.”
The court reimposed the original senten ce , and Cooper filed a timely notice of appeal.
Discussion SB 620, which added subdivision (h) to section 12022.53, “ gave the trial court discretion ‘in the interest of justice pursuant to Section 1385 and at the time of sentencing, [to] strike or dismiss an enhancement otherwise required to be imposed by this section.’ (§ 12022.53, subd. (h).) [¶] ‘ “A court ’ s discretionary decision to dismiss or to strike a sentencing allegation under5

section 1385 is ” reviewable for abuse of discretion. ’ ” ( People v. Pearson (2019) 38 Cal.App.5th 112, 116.) Cooper does not contend that the trial court’s
decision is “ ‘so irrational or arbitrary that no reasonable person could agree with it.’ ” ( Ibid. ) H e contends that the trial court misunderstood either the scope of its discretion or a material aspect of the record

. (See People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 [ d efendants “ are entitled to sentencing made in the exercise of the ‘ informed discretion ’ of the sentencing

court ” ]

. ) Cooper contends the court exercised its discretion without realiz ing that the scope of that discretion includ ed the ability to replace the vicarious firearm enhancement that was imposed with a lesser

- included enhancement

. He acknowledges the “basic presumption indulged in by reviewing courts that the trial court .

. . kn[ew] and applied the correct statutory and case law in the exercise of its official duties” ( People v. Mack (1986) 178 Cal.App.3d 1026,
103 2 ) , but attempts to overcome th e presumption by point ing out that
Morrison held the presumption did not apply in that case

. S h ortly before the

enact ment of SB 260 , Morrison was convicted of murder and given a sentence that includ ed a firearm enhancement of 25 years to life under subdivision (d) of section 12022.53

. ( Morrison , supra , 34 Cal.App.5th at p. 220.) After SB 260 was enacted , Morrison moved the trial court to recall his sentence

. Th e court did so , but declined to exercise its newly conferred discretion to strike the
enhancement . ( Ibid. ) On appeal, Morrison argu ed that the court had not understood that a trial court’s discretion under SB 260 include s the authority

to strike an enhancement found true by the jury and to impose instead a lesser included enhancement that had not been alleged or found true

. ( Id. at pp. 221

– 222.) Division Five of this court agreed and remanded Morrison’s

case because , a t the time of Morrison’s resentenc ing, SB 260 had just been6

enacted, “ no published case had held [that] an uncharged lesser firearm enhancement could be imposed in lieu of an enhancement under section 12022.53, subdivision (d) ,” and “ it does not appear the court considered the issue. ” ( Id. at p. 224.) While acknowledg ing “ ‘ the rule that a trial court ordinarily is presumed to have correctly applied the law , ’ ” Morrison holds that
th e presumption does not apply i f , at the time of sentencing, the scope of a court’s discretion under a new law was unclear or disputed. ( Ibid. ) But “ after the publication of our decision today, ” the court added, " the usual presumption that a sentencing court correctly applied the law will apply [in cases raising the same issue] an d will ordinarily prevent remand where the record is silent as to the scope of a court’s discretion. ” ( Id. at p. 225

. ) In this case, C ooper was resentenced “after the publication of [ Morrison ]” and after Cooper brought that decision to the court’s attention

. T he record is otherwise “ silent as to the scope of the court’s discretion ” ( Morrison , supra , 34 Cal.App.5th at p. 22 5 ) , as t he prosecutor did not dispute
that a trial court ’s discretion under SB 260 encompasses the a bil ity to substitute a lesser

- included enhancement , 3 and the court did not sa y anything to suggest that it was unaware that it had that authority

. Morrison itself thus dictates that “the usual presumption that a sentencing court correctly applied the law will apply.” ( Ibid .) Cooper also relie s on the circumstance that , while the defendant in
Morrison was the actual killer, he was not

. Cooper argues it was unsettled at

3 The Attorney General now urges this court to reject th e rule of Morrison and to follow decisions that have since disagreed with it. ( People v. Tirado (2019) 38 Cal.App.5th 637, review granted Nov. 13, 2019, S257658; People v. Garcia (2020) 46 Cal.App.5th 786, review granted June 10, 2020, S261772.) We need not attempt to resolve that conflict because the correctness of Morrison ’s rule is immaterial to the outcome of this appeal.7

the time of his resentencing whether the authority identified in Morrison

e xtends to substituting a lesser included vicarious firearm enhancement for a
vicarious enhancement found true by the jury

. But he articulates no reason why the trial court might have believe d that the power identified in Morrison applies only to firearm enhancement s imposed on actual killer s

. Nor does he cite any part of the record suggest ing that the trial court h a d such a belief

. W e thus apply “the usual presumption that a sentencing court correctly applied the law” ( Morrison , supra , 34 Cal.App.5th at p. 225 ). Cooper’s second claim is that the court ’s exercise of discretion rested in part on misinformation about a material aspect of the record. (See People v.
Belmontes , supra , 34 Cal.3d at p. 348, fn. 8

. ) As indicated above, the third reason the court gave for refusing to strike the gun enhancement was “ the fact that I stayed the gang enhancement because of the gun enhancement .”
This com ment , Cooper contends, shows that the court misunderstood the record : t he court did not stay the gang enhancement “because of the gun
enhancement

. ” B ecause Cooper was convicted of first degree murder, the

statute itself (§ 186.22) barred the court from imposing a gang enhancement

. Cooper cites People v. Lopez (2005) 34 Cal.4th 1002 , which h o ld s that “ first degree murder is a violent felony that is punishable by imprisonment in the state prison for life and therefore is not subject t o a 10

- year [gang] enhancement under section 186.22(b)(1)(C). ” ( Id. at p. 1004.) I f a defendant convicted of first degree murder satisfies the pre requi site s for a gang enhancement, subdivision (b)(5) of section 186.22 “applies and imposes a
minimum term of 15 years before the defendant may be considered for parole.” ( Ibid. )
A ssuming that Cooper is correct that Lopez barred the court from imposing a gang enhancement here, and that the court held a mistaken belief8

that the gun enhancement had led it to stay the gang enhancement , a ny such belief wa s immaterial. T he gang enhancement was only one of three reasons
the court gave for not striking the gun enhancement , and the court’s statement of reasons makes clear that it based its refusal primari ly on th e other two unchallenged factors. The court began its discussion by noting Cooper’s decision to deny responsibility by lying under oath , explain ed why its “empathy for Mr. Cooper being so young at th at t ime is really addressed by the Youthful Offender laws that have come into effect , ” and then
recounted the “ obviously horrendous” facts of the case

. T hen the court gave a final summary in which it mentioned in passing, for the fi r st and only time , “the fact that I stayed the gang enhancement because of the gun enhancement.” There is no reason to believe that any misapprehension about whether the court could have imposed a gang enhancement had a material effect on its exercise of discretion not to s trike the gun enhancement. Disposition The judgment is affirmed

.

POLLAK, P. J.

WE CONCUR:
STREETER, J. TUCHER, J.