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Filed 6/23/21 P. v. Cooper 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

JUSTIN MICHAEL COOPER,

Defendant and Appellant.

C088522

(Super. Ct. No. 18FE012454)

This case is an example of how the maxim that an appellate court reviews the 

result rather than the reasoning of the trial court’s actions can lead to a simple solution to 

a potentially more complex problem. 

Following a jury trial, defendant Justin Michael Cooper was convicted of 

unlawfully driving or taking a vehicle worth over $950 with a prior violation of this 
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section. (Veh. Code, § 10851, subd. (a); Pen. Code, § 666.5, subd. (a).)

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 The jury 

sustained strike and prior prison term allegations in a bifurcated proceeding. (§§ 

1170.12, 667.5, subd. (b).) The trial court sentenced defendant to a 10-year state prison 

term. 

On appeal, defendant contends the trial court’s finding that his prior conviction 

qualified as a strike must be reversed because the court engaged in impermissible 

factfinding in violation of his right to a jury trial and there is insufficient evidence to 

support the finding. He also contends that various fines and assessments must be stayed 

pending a determination of his ability to pay pursuant to People v. Dueñas (2019) 30 

Cal.App.5th 1157 (Dueñas), and the prison priors must be stricken in light of Senate Bill 

No. 136. 

It is unnecessary to determine whether the trial court improperly relied on the facts 

of the prior crime adduced at the preliminary hearing for his prior conviction to determine 

whether the prior was a strike because, when pleading no contest in the prior case, 

defendant was informed the conviction would be considered a strike, acknowledged this 

consequence, and proceeded with the plea. Disagreeing with Dueñas, we shall remand 

for resentencing with directions to strike the prison priors. 

FACTUAL AND PROCEDURAL BACKGROUND

We dispense with the facts of defendant’s crime as they are unnecessary to resolve 

this appeal.

The information alleged defendant’s 2016 conviction for battery with serious 

bodily injury (§ 243, subd. (d)) was a serious felony and therefore a strike and this 

conviction and a 2007 conviction for vehicle theft supported prior prison term 

1 Undesignated statutory references are to the Penal Code.
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enhancements. The trial court granted defendant’s motion to bifurcate the trial on the 

priors. 

Defendant subsequently moved to exclude from proceedings on the priors the 

preliminary hearing transcript from the 2016 conviction or any hearsay contained therein. 

Citing People v. Gallardo (2017) 4 Cal.5th 120, defendant claimed the preliminary 

hearing transcript was irrelevant to determine whether he personally inflicted great bodily 

injury in committing the 2016 offense, and the trial court’s examination of the 

preliminary hearing transcript for this purpose violated his Sixth Amendment jury trial 

rights.

The trial court ruled that defendant stipulated to the preliminary hearing as the 

factual basis of his plea, which distinguished People v. Gallardo, supra, 4 Cal.5th 120. 

Based on the testimony from the preliminary hearing transcript, the trial court found the 

2016 conviction qualified as a strike. 

The preliminary hearing transcript contained the testimony of a single witness, a 

deputy at the South Placer Correctional Facility, who testified that an inmate told him 

someone hit him while he was in a restricted area. The deputy also interviewed the 

physician’s assistant who treated the inmate, who related the inmate’s injuries as a result 

of the attack—a lacerated forehead, minor swelling to his face, pain in the right sinus, an 

abrasion to the face, and fractures in the right sinus area. The deputy’s review of 

surveillance video showed the inmate was attacked by defendant and another inmate. 

The video showed defendant kicking and punching the victim. When the deputy told 

defendant he had seen the video, defendant said the video spoke for itself. 

At the change of plea hearing for the 2016 conviction, the prosecutor stated the 

terms of the plea as follows: “So the 243 (D), it would be stipulated that’s a strike, and 

he would be receiving the upper term of four years in the California Department of 

Corrections. He would have an additional subordinate year for the 10851, with prior 

under 667.5 which he was previously sentenced on, and then two additional prior prison 
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terms for an additional two years to get to the total of seven years in CDC.” The defense 

did not object to the prosecutor’s characterization of the plea. 

While explaining the plea’s terms to defendant, the trial court asked him: “Okay. 

You do understand though that the plea that is being contemplated would constitute a 

strike in that you personally inflicted great bodily injury? Do you understand that strike 

would enhance your sentence should you be convicted of a felony in the future? Do you 

understand that?” Defendant affirmed that he understood. The strike nature of the 

section 243 offense was not mentioned again during the plea colloquy. The parties 

stipulated to the preliminary hearing as the factual basis for the plea. 

DISCUSSION

I

The Strike Finding

A conviction for battery with serious bodily injury does not qualify as a serious

felony unless the defendant personally inflicted great bodily injury on a person other than 

an accomplice. (§ 1192.7, subd. (c)(8); People v. Bueno (2006) 143 Cal.App.4th 1503, 

1508 [the prosecution is required to prove that the victim was not an accomplice and that 

the defendant personally inflicted the injury rather than that he aided and abetted 

another].) Defendant contends the trial court erred in finding the 2016 prior was a serious 

felony and strike because there is insufficient evidence to support a finding he personally 

inflicted serious bodily injury on a nonaccomplice and the trial court’s use of the 

preliminary hearing transcript testimony to make this finding violated his Sixth 

Amendment right to a jury trial. 

As explained in Descamps v. United States (2013) 570 U.S. 254 [186 L.Ed.2d 

438], judicial factfinding beyond facts implied by the elements of the prior offense 

violates the Sixth Amendment right to a jury trial. (See, e.g., People v. Navarette (2016) 

4 Cal.App.5th 829, 844; People v. Marin (2015) 240 Cal.App.4th 1344, 1363.) As such, 

a defendant is entitled to a jury trial on the issue of whether he personally inflicted 
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serious bodily injury on a nonaccomplice, unless he waives a jury or either admits the 

necessary facts or assents to the trial court’s finding of them without a jury. (Marin, at 

pp. 1363-1364.)

We need not determine whether the trial court violated the Sixth Amendment in 

relying on the preliminary hearing transcript or whether the facts therein are substantial 

evidence of the elements necessary to support the serious felony finding. 

“Under section 969f, subdivision (a), when the People believe that the defendant’s 

offense is a serious felony, ‘the facts that make the crime constitute a serious felony may 

be charged in the accusatory pleading’ and ‘[i]f the defendant pleads guilty of the offense 

charged, the question whether or not the defendant committed a serious felony as alleged 

shall be separately admitted or denied by the defendant.’ (Italics added.) The section 

was enacted in order to ‘prequalify a crime as a serious felony’ for purposes of the three 

strikes law. [Citation.] The section allows ‘ “the fact that a crime is a serious felony to 

be proven at the time the first crime is tried so that it may become a matter of record.” ’ 

[Citations.] Where the prosecution includes a serious felony allegation and the defendant 

pleads guilty or no contest, section 969f, subdivision (a), requires the defendant to admit 

or deny the allegation.” (People v. Bueno, supra, 143 Cal.App.4th at p. 1509.) “By this 

means as well, the serious felony nature of the offense will become an explicit part of the 

record of conviction, leaving no room for confusion if and when the issue becomes 

relevant to the sentence for a subsequent felony.” (People v. Delgado (2008) 43 Cal.4th 

1059, 1072.)

While defendant did not use the term “admit” or a similar word, there can be no 

doubt classifying the section 243 offense as a serious felony was a term of the plea 

agreement, defendant was advised this was a consequence of his plea, he admitted 

understanding this advisement, and proceeded with the plea in the presence of counsel. A 

waiver or admission does not require the use of specific terms or words so long as the 

defendant is aware of what he or she is doing. (People v. Harty (1985) 173 Cal.App.3d 
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493, 502; see People v. Mosely (2004) 33 Cal.4th 353, 356 [whether admission of prior 

conviction was voluntary determined by examining the totality of the circumstances].) 

Here, there is no doubt defendant effectively admitted the section 243 offense was a 

serious felony and strike when he entered his plea. 

We review whether the trial court reached the right result, and will affirm even if 

that result is reached for the wrong reasons. (Finnie v. District No. 1 - Pacific Coast Dist. 

etc. Assn. (1992) 9 Cal.App.4th 1311, 1316 [noting that, on appeal, we review the result 

rather than the reasoning employed by the trial court].) Defendant’s acknowledgement 

that the battery with serious bodily injury charge he was pleading to was a strike renders 

that conviction a serious felony and strike as matter of law. Whether the trial court erred 

in making the strike finding based on the preliminary hearing transcript is irrelevant.

II

Dueñas

Citing Dueñas, defendant contends the court operations assessment (§ 1465.8) and 

conviction assessment (Gov. Code, § 70373) must be stricken as there was no hearing on 

his ability to pay them.2 

We join the courts concluding Dueñas was wrongly decided and hold that 

defendant was not entitled to an ability to pay hearing for these assessments. (People v. 

Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 

322, review granted November 26, 2019, S258946; People v. Aviles (2019) 39 

Cal.App.5th 1055, 1060; People v. Caceres (2019) 39 Cal.App.5th 917, 920.) We 

therefore reject the contention.

2 Defendant does not include the $3,000 restitution fine (CT 168) in his Dueñas

claim. 
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III

Senate Bill No. 136

Defendant contends, and the Attorney General agrees, that recently enacted Senate 

Bill No. 136, which limits the prior offenses that qualify for a prior prison term 

enhancement, applies retroactively to his case. We agree.

On October 8, 2019, the Governor signed Senate Bill No. 136, which amended 

section 667.5, effective January 1, 2020. (Stats. 2019, ch. 590, § 1.) Senate Bill No. 136 

narrowed eligibility for the one-year prior prison term enhancement to those who have 

served a prior prison sentence for a sexually violent offense.

Defendant’s prior prison terms at issue were not for sexually violent offenses. 

(See Welf. & Inst. Code, § 6600, subd. (b) [defining sexually violent offense].)

Defendant is therefore entitled to the ameliorative benefit of the statute if Senate Bill No. 

136 is applied retroactively. We agree with the parties that the amendment to Senate Bill 

No. 136 should be applied retroactively in this case.

Generally speaking, new criminal legislation is presumed to apply prospectively 

unless the statute expressly declares a contrary intent. (§ 3.) However, where the 

Legislature has reduced punishment for criminal conduct, an inference arises under In re 

Estrada (1965) 63 Cal.2d 740, “ ‘that, in the absence of contrary indications, a legislative 

body ordinarily intends for ameliorative changes to the criminal law to extend as broadly 

as possible, distinguishing only as necessary between sentences that are final and 

sentences that are not.’ [Citations.]” (People v. Superior Court (Lara) (2018) 4 Cal.5th 

299, 308.) “A new law mitigates or lessens punishment when it either mandates 

reduction of a sentence or grants a trial court the discretion to do so. [Citation.]” (People 

v. Hurlic (2018) 25 Cal.App.5th 50, 56.)

Senate Bill No. 136 narrowed who was eligible for a section 667.5, subdivision (b) 

prior prison term enhancement. There is nothing in the bill or its associated legislative 

history that indicates an intent that the court not apply this amendment to all individuals 
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whose sentences are not yet final. Under these circumstances, we find that In re 

Estrada’s inference of retroactive application applies. (Accord, People v. Lopez (2019) 

42 Cal.App.5th 337, 340-342 [Sen. Bill No. 136 applies retroactively to cases not yet 

final on appeal]; People v. Jennings (2019) 42 Cal.App.5th 664, 680-682 [same].) The 

standard relief granted by appellate courts in this situation is to direct the trial court to 

strike defendant’s prior prison term enhancements and “remand the matter for 

resentencing to allow the court to exercise its discretion in light of the changed 

circumstances.” (Jennings, at p. 682.) We shall do so here.

DISPOSITION

The matter is remanded with directions to the trial court to strike both prior prison 

term enhancements and for resentencing consistent with this opinion. In all other 

respects, the judgment is affirmed.

 /s/

BLEASE, J.

I concur:

 /s/

RAYE, P. J.
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MAURO, J., Concurring and Dissenting.

I fully concur in the majority opinion except for part II of the Discussion, 

pertaining to defendant’s challenge to the $40 court operations assessment and the $30 

court facility assessment, as to which I dissent.

In People v. Dueñas (2019) 30 Cal.App.5th 1157, the court held it is improper 

to impose certain fines or assessments without determining defendant’s ability to pay. 

(Id. at pp. 1168, 1172.) Although some courts have subsequently criticized Dueñas’s 

legal analysis (see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted 

Nov. 26, 2019, S258946), Dueñas remains citable precedent. Until the California 

Supreme Court has had an opportunity to resolve the current split in authority, on remand 

I would direct the trial court to consider defendant’s ability to pay the assessments.

 /s/

MAURO, J.