Filed 8/18/20 P. v. Cooper CA2/2
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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has not been certified for publication or ordered published for purposes of rule 8.1115.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

                         SECOND APPELLATE DISTRICT

                                        DIVISION TWO


THE PEOPLE,                                                    B300934

         Plaintiff and Respondent,                             (Los Angeles County
                                                               Super. Ct. No.
         v.                                                    GA066001)

TRAVIS COOPER,

         Defendant and Appellant.


THE COURT:

       In 2006, Draper Manning died after being wounded during
a drive-by shooting. (People v. Cooper (June 21, 2010, B213116)
[nonpub. opn.], at p. 3, as modified (July 20, 2010) (Cooper I).)
Evidence of defendant and appellant Travis Cooper’s involvement
in the planning and aftermath of the shooting was adduced at his
trial in 2008. (Id. at pp. 3–11, 14–15.)
       A jury found defendant guilty of first degree murder (Pen.
Code, § 187, subd. (a)),1 possession of a firearm by a felon
(§ 12021, subd. (a)(1)), and conspiracy to commit murder (§§ 182,
subd. (a)(1), 187, subd. (a)). The jury also found that a principal
intentionally discharged a firearm, proximately causing death
(§ 12022.53, subds. (d) & (e)(1)) and that defendant committed
the offenses for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)). The trial court found that defendant had one prior
serious felony conviction within the meaning of the “Three
Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and
that he served a prior prison term (§ 667.5, subd. (b)). Defendant
was sentenced to an aggregate prison term of 75 years to life.
(Cooper I, supra, B213116, at p. 2.)
       In defendant’s first appeal, we reversed his conviction for
possession of a firearm by a felon, due to insufficient evidence,
and stayed, pursuant to section 654, his sentence for conspiracy
to commit murder. We otherwise affirmed the judgment.
(Cooper I, supra, B213116, at pp. 15–16, 22, 27.)
       On June 28, 2019, defendant filed a petition for writ of
habeas corpus seeking resentencing pursuant to section 1170.95,
as added by Senate Bill No. 1437 (2018 Reg. Sess.) (SB 1437), and
for the trial court to strike the firearm and gang enhancements,
in part based on Senate Bill No. 620 (2017-2018 Reg. Sess.)
(SB 620). As an exhibit to the habeas petition, defendant
attached a completed petition for resentencing pursuant to
section 1170.95.




1     All further statutory references are to the Penal Code
unless otherwise indicated.




                                2
       The trial court deemed defendant’s habeas petition to be a
section 1170.95 resentencing petition, which it denied without
prejudice on July 9, 2019. Having reviewed the record, the court
concluded that defendant was not eligible for relief under
section 1170.95 because the jury had not been instructed on
either felony murder or the natural and probable consequences
theory. The court also rejected defendant’s remaining claims
regarding the firearm and gang enhancements on the grounds
that SB 620 only applies to sentences—unlike defendant’s—that
are not yet final and that the other arguments had been
previously raised and rejected on direct appeal. Defendant
timely appealed from the court’s order.
       Counsel was appointed to represent defendant in
connection with this appeal. After reviewing the record, counsel
filed an opening brief pursuant to People v. Wende (1979) 25
Cal.3d 436 (Wende), in which no arguable issues were raised. On
February 4, 2020, we advised defendant that he had 30 days
within which to personally submit any grounds of appeal,
contentions, or argument for us to consider. Defendant filed a
supplemental brief on March 2, 2020.
       Having reviewed the entire record and considered the
contentions in defendant’s supplemental brief, we find no
arguable basis for reversal.2

2     Because this appeal is from an order denying
postconviction relief rather than defendant’s first appeal of right
from a criminal conviction, defendant is not entitled to Wende
review. (People v. Cole (Aug. 3, 2020, B304329) ___ Cal.App.5th
___ [2020 Cal.App.Lexis 717, at p. *23] (Cole); see also People v.
Serrano (2012) 211 Cal.App.4th 496, 501.) Nevertheless, because
defendant has filed a supplemental brief, he is entitled to have us
review the arguments he presents in that brief. (Cole, at p. *23.)




                                 3
      Defendant argues that he was convicted of murder based on
a natural and probable consequences theory of liability, pointing
to two jury instructions given at his trial—CALJIC Nos. 8.11 and
17.19.5. We disagree. Although CALJIC No. 8.11, “the standard
instruction defining malice” (People v. Jones (2013) 57 Cal.4th
899, 966), includes the term “natural consequences” and CALJIC
No. 17.19.5, the standard instruction regarding the firearm
enhancement under section 12022.53, subdivision (d) (People v.
Palmer (2005) 133 Cal.App.4th 1141, 1155), uses the term
“natural and probable consequence[,]” neither of these
instructions conveys the natural and probable consequences
doctrine within the meaning of section 1170.95.3 (See People v.
Soto (2020) 51 Cal.App.5th 1043, 1056 (Soto) [“Although the
instructions related to implied malice and the natural and
probable consequences doctrine of aiding and abetting include
similar language regarding a ‘natural consequence,’ they are
distinctly different concepts.”])
      We have also reviewed all other jury instructions given at
defendant’s trial and find that the jury was not instructed on
either the natural and probable consequences doctrine or felony
murder. Accordingly, the jury could not have convicted defendant


We also grant defendant’s request for judicial notice of the
docket, the record, and our prior opinion in Cooper I, supra,
B213116, which we have considered in conjunction with our
review.
3     The natural and probable consequences doctrine provides
that “an aider and abettor is guilty not only of the intended
crime, but also ‘for any other offense that was a “natural and
probable consequence” of the crime aided and abetted.’
[Citation.]” (People v. McCoy (2001) 25 Cal.4th 1111, 1117.)




                                 4
on those bases. (Soto, supra, 51 Cal.App.5th at p. 1055.) Rather,
the jury was instructed on the direct aiding and abetting theory
of liability: “A person aids and abets the commission or
attempted commission of a crime when he or she: [¶] (1) With
knowledge of the unlawful purpose of the perpetrator, and [¶]
(2) With the intent or purpose of committing or encouraging or
facilitating the commission of the crime, and [¶] (3) By act or
advice aids, promotes, encourages or instigates the commission of
the crime.” (CALJIC No. 3.01.) This remains a valid theory of
first degree murder following SB 1437. (People v. Lewis (2020) 43
Cal.App.5th 1128, 1137, review granted Mar. 18, 2020, S260598.)
       Furthermore, in addition to murder, defendant was
“charged with conspiracy to murder, not conspiracy to commit a
lesser crime that resulted in murder. There is thus no possibility
[he] w[as] found guilty of murder on a natural and probable
consequences theory.” (People v. Beck and Cruz (2019) 8 Cal.5th
548, 645.)
       Because section 1170.95 “applies only to qualifying
defendants convicted of felony murder or murder under a natural
and probable consequences theory” (People v. Flores (2020) 44
Cal.App.5th 985, 997), defendant is ineligible for resentencing
under section 1170.95 as a matter of law. (Soto, supra, 51
Cal.App.5th at p. 1059; see also People v. Edwards (2020) 48
Cal.App.5th 666, 673–674, review granted July 8, 2020, S262481
[trial court may properly rely on record of conviction, which




                                5
includes jury instructions, in determining whether a prima facie
showing of section 1170.95 eligibility has been made].)4
      The order is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




____________________________________________________________
ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.




4     Although defendant’s petition was labeled as one for writ of
habeas corpus, it sought resentencing under section 1170.95, and
we find no error in the trial court’s application of section 1170.95
procedures. We note that a split of authority exists whether a
challenge based on People v. Banks (2015) 61 Cal.4th 788 and
People v. Clark (2016) 63 Cal.4th 522 to a felony-murder special
circumstance must be brought through a petition for habeas
corpus or may instead be raised in a section 1170.95 petition.
(Compare People v. Galvan (Aug. 4, 2020, B300323)
___ Cal.App.5th ___ [2020 Cal.App.Lexis 730, at p. *2] with
People v. Torres (2020) 46 Cal.App.5th 1168, 1179–1180, review
granted June 24, 2020, S262011.) Because defendant does not
challenge a felony-murder special circumstance finding, we have
no occasion to address this dispute.




                                 6
