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Criminal Defense Attorneys

SB 1437 Denial Reversed When No Appointed Counsel on Case

In the context of a Petition for Resentencing under Penal Code § 1170.95, as provided for under Senate Bill 1437 implementing changes to California’s felony murder law, many prisoners are unclear as to their rights to appointed counsel in the process.

The following summary of the First Appellate District Court of Appeal ruling in People v. Richard Cooper (2020 DJDAR 9627) should clarify this issue.

Richard Cooper was charged with two counts of murder for participating with another man in a horrific killing of a pregnant woman in Oakland in 1994.  At the time, Cooper was 18 years old.  He raped a pregnant woman while another man kicked the woman in her face.  Later, both men took turns throwing a cinder block on her head and then, possibly after the woman was already dead, Cooper cut her throat “so she wouldn’t snitch on him.” 

In April 1998, Cooper pleaded no contest to one count of second-degree murder and the remaining count and all enhancements were dismissed.  At the plea hearing, during the discussion of promises made to Cooper in exchange for the plea, his trial counsel stated, “The district attorney indicated that he would write in his letter to the Board of Prison terms that that the evidence supports the theory that the defendant was not a direct actor here but an aider and abettor.” 

Before taking the plea, the trial court asked if there was a stipulated factual basis for the plea,” and Cooper’s trial counsel stated, “So stipulated.”  However, the record did not indicate what that stipulated factual basis was.

Cooper was then sentenced to fifteen years to life in prison in November 1999.

On February 10, 2019, shortly after Senate Bill 1437 took effect, Cooper filed a petition for relief under Penal Code § 1170.95.  Using a form from Re:StoreJustice, he checked blocks stating that a charging document had been filed against him allowing the prosecution to proceed under a felony murder theory or the natural and probable consequences doctrine; he entered into a plea to first or second degree murder in lieu of going to trial because he believed he could have been convicted or murder under a felony murder or the natural and probable consequences doctrine; and he could not now be convicted of murder in light of Senate Bill 1437’s changes to the law.

In addition, he checked a block indicating he was convicted of second degree murder under the natural and probable consequences doctrine or under the second degree felony murder doctrine and a box stating “I request that this court appoint counsel for me during this re-sentencing process.” 

A different judge than the one who sentenced him summarily denied the petition.  The trial court did not appoint counsel to represent him.  
In its written order, the judge stated that the order’s “procedural and factual history [was] based on the Court’s records in this matter[,] including the preliminary hearing transcript and the change of plea transcript.” 

Cooper then appealed this ruling to the First Appellate District Court in San Francisco.  The appellate court first pointed out that the change of plea hearing did not specify what the factual basis for his plea was, so therefore, the only basis for the summary denial was the preliminary hearing transcript, which Cooper did not stipulate to as providing a factual basis for his plea.

The First Appellate court pointed out that the judge impermissibly accepted the truth of the testimony from the preliminary hearing without realizing that the legal standard for a preliminary hearing does not require defendant to impeach witnesses at the preliminary hearing, so this was, we think, a rather startling legal error.

Second, the appellate court found fault with the trial court not appointing counsel in this case.  It pointed out that “[w]hile the denial of counsel may be harmless in some situations, such as when the petitioner is not entitled to relief as a matter of law, [here] it was not harmless error. 
Cooper’s conviction was based on a plea who particular factual basis was never established.”  Cooper needed the assistance of counsel to challenge the preliminary hearing transcript in this case.

The case was therefore remanded to the trial court with instructions to appoint counsel for Cooper.

We present this summary because we suspect this type of error is not uncommon and to protect the rights of perhaps even the most brutal murderers in an SB 1437, if for no other reason to preserve the integrity of the process, this type of legal error must be prevented.

For more information about appointed counsel on an SB 1437 petition for resentencing, please click on the following articles:

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