Filed 9/11/14 P. v. Cooper CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065534

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD139243)

DEANGELO COOPER,

         Defendant and Appellant.

         APPEAL from a judgment of the Superior Court of San Diego County, David J.

Danielsen, Judge. Affirmed.

         Anna M. Jauregui-Law, under appointment by the State of California, for

Defendant and Appellant.

         No appearance by Respondent.

         In 1999, Deangelo Cooper was convicted in a court trial of possession of a firearm

by a felon. (Pen. Code, § 12021, subd. (a)(1).)1 The court also found true three

serious/violent felony convictions within the meaning of section 667, subdivisions (b)



1        All statutory references are to the Penal Code.
through (i) and one prison prior within the meaning of section 667.5, subdivision (b).

Initially, the court struck two of the three strikes and sentenced Cooper to a seven-year

prison term. As detailed below, in 2001 the court reinstated both strikes as ordered by

this court and imposed an indeterminate sentence of 25 years to life plus one year for the

prison prior.

       This appeal arises from the trial court's denial of appellant's petition to modify his

sentence pursuant to section 1170.126. We find no error and affirm.

                     FACTS AND PROCEDURAL BACKGROUND

       The facts concerning appellant's conviction for possession of a firearm by a felon

and the sentencing hearings attendant to that conviction are outlined in detail in three

unpublished opinions issued by this court. (People v. Cooper (Dec. 22, 1999, D033007);

People v. Cooper (Jan. 12, 2001, D035524); People v. Cooper (Oct. 10, 2002, D038322.)

We take judicial notice of those opinions and rely on them to set forth the factual and

procedural backgrounds underlying the current appeal as the record before us is limited to

documents relevant to the petition referenced above. Those prior opinions reveal the

following.

       In August 1998, appellant was stopped by police at about 10:30 p.m. because the

light was out over his license plate. He was on parole at the time. The contact ultimately

revealed a nine-millimeter pistol in his waistband. The pistol was fully loaded and

contained 15 rounds of hollow-point ammunition.



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       Appellant's criminal history revealed he had suffered three prior strike convictions.

Two were juvenile adjudications, one for attempted robbery with the personal use of a

deadly weapon (a baseball bat), and one for robbery with personal use of a firearm. The

third was for attempted murder of a police officer with the personal use of a firearm.

       At appellant's first sentencing hearing in 1999, the trial court (Judge John

Thompson) struck the two prior juvenile adjudications and sentenced Cooper to a

determinate term of seven years, consisting of the upper term of three years for

possession of the firearm, doubled pursuant to section 667, subdivision (e)(1), plus one

year for the prison prior. The People appealed and we reversed the trial court's decision

striking the prior convictions. We determined the trial court had failed to set forth in the

minutes its reasons for dismissing two of appellant's three strikes as required by section

1385. (See People v. Cooper, supra (D033007).) We also questioned whether the trial

court's verbal statement of reasons provided a sufficient basis for such dismissal.

       On remand for resentencing, Judge Thompson again dismissed two of Cooper's

three strikes and imposed the same seven-year sentence. The People again appealed and

we reversed, concluding the court abused its discretion in striking the strikes as there was

no basis in the record to support the court's decision. We directed the trial court to

reinstate the serious/violent felony prior convictions and to sentence appellant in

accordance with the three strikes sentencing provisions. (See People v. Cooper, supra

(D035524).) In May 2001, the trial court did so, and imposed an indeterminate sentence

of 25 years to life for the possession of the firearm plus one year for the prison prior.

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Appellant appealed, challenging the new sentence on claims of cruel and unusual

punishment and denial of due process. We rejected both contentions and affirmed the

judgment and sentence. (See People v. Cooper, supra (D038322).)

       In November 2012, appellant filed a petition for modification of his sentence

under section 1170.126, commonly referred to as The Three Strikes Reform Act of 2012.

At the hearing on January 14, 2014, Judge David Danielson denied the petition in 2014

on the ground that appellant was statutorily ineligible due to the attempted murder prior

conviction.

                                       DISCUSSION

       Appointed appellate counsel has filed a brief setting forth evidence in the superior

court. Counsel presents no argument for reversal, but asks that this court review the

record for error as mandated by People v. Wende (1979) 25 Cal. 3d 436. Pursuant to

Anders v. California (1967) 386 U.S. 738, counsel refers to a possible, but not arguable,

issue of whether the trial court erred in denying appellant's petition for modification of

sentence under section 1170.126.

       We granted Cooper permission to file a brief on his own behalf. He responded

with a letter arguing the court erred when it increased his sentence from "7 years to 26 to

life." He maintains his sentence was "called back for re-sentencing" and that under such

circumstances, the court does not have the authority to impose a sentence greater than his

original sentence. As outlined above, the People challenged Cooper's original sentence

of seven years, claiming it was not a lawful sentence. This court concluded Judge

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Thompson's seven-year sentence was unauthorized. We vacated that sentence and

directed the court to reinstate his prior strike convictions. The court did so and then

properly imposed a greater sentence; we affirmed that sentence on appeal. If appellant is

now attempting to challenge that sentence in this appeal, the challenge is untimely and

therefore fails.

       If, instead, appellant is attempting to challenge the denial of his petition for

sentence modification, this argument also fails. Following passage of the Three Strikes

Reform Act, a request for sentence modification was filed on appellant's behalf. The

court appointed counsel to represent appellant and to evaluate his eligibility for sentence

modification pursuant to the Three Strikes Reform Act. At the January 14, 2014 hearing,

the court (Judge Danielsen) denied the petition, finding appellant was not eligible for

sentence modification because of his prior conviction for attempted murder. The court's

conclusion was a correct one.

       A review of the record pursuant to People v. Wende, supra, 25 Cal. 3d 436 and

Anders v. California, supra, 386 U.S. 738, including the possible issue referred to by

appellate counsel, has disclosed no reasonably arguable appellate issue. Competent

counsel has represented Cooper on this appeal.




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                                  DISPOSITION

      The judgment is affirmed.




                                                HALLER, J.

WE CONCUR:



BENKE, Acting P. J.



O'ROURKE, J.




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