THE PEOPLE v. TREVEN JEROME COOPER (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUMMARY

A jury convicted Treven Jerome Cooper of attempted voluntary manslaughter and found allegations that he personally used a deadly and dangerous weapon and personally inflicted great bodily injury to be true.   Cooper was sentenced to prison for five and one-half years.   On appeal, Cooper's counsel filed a brief requesting this court's independent review of the record under People v. Wende (1979) 25 Cal.3d 436.   Our review of the record shows no arguable issues.   We affirm the judgment and order the correction of clerical errors in the abstract of judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Cooper was charged in an information filed December 23, 2008, with two felonies:  attempted murder (Pen.Code, §§ 187, subd. (a), 664) (count 1),¹ and assault with a deadly weapon (§ 245, subd. (a)(1) (count 2).   The information also alleged, as to count 1, that Cooper personally used a deadly or dangerous weapon (a knife) (§ 12022, subd. (b)(1)), and as to both counts that he personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a).)  The information alleged a prior conviction in July 2006 for felony vandalism (§ 594), and alleged a prison term was served and Cooper did not remain free of prison custody for, and committed an offense resulting in a felony conviction during, the five years subsequent to the prison term. (§ 667.5, subd. (b).)

Cooper pled not guilty, and the following evidence was adduced at trial.²  Cooper and his girlfriend, Ashley Trimble, had recently moved into an apartment building where Timothy Leonard (the victim) lived and acted as the manager.   A few days before the incident in question, Trimble had told Cooper to move out, and Cooper put his belongings out on the grass, in or near the driveway.   Leonard told him to move his things to the side of the building and assisted Cooper in doing so.   Leonard observed a printer among Cooper's belongings and asked to use it.   Cooper allowed him to take the printer into his apartment and gave him a program disk for the printer.

A few days later, on July 13, 2008 (the date of the incident), Cooper asked Leonard if he wanted to buy the printer for $10, and Leonard agreed to do so.   (By this time, Cooper had moved back into the apartment with Trimble.)   Later that day, Trimble told Leonard she wanted more money for the printer ($15);  Leonard agreed, and Trimble said Leonard could pay the next day.   Still later, one of the neighbors (called Nabu) came to Leonard's apartment and told him that Trimble wanted the printer back.   Leonard was “pretty upset about having to give the printer back,” but his wife told him to give it back, so he gave it to Nabu.

Later that evening, after dark, Leonard was standing in the parking lot at the back of the building after having emptied the trash, talking to two other men, one of whom lived in the building.   Cooper and Trimble drove past them into the lot and parked.   Cooper got out of the front passenger seat, and Leonard “asked can I holler at him right quick.”   Cooper, who was taking his baby out of the car, said, “I don't want to talk to you right now.   I'm with my family.”   Cooper walked to his and Trimble's apartment, carrying his baby in the baby's car seat, passing about five feet from Leonard.

Cooper and Trimble walked into their apartment (which was on the first floor).   According to Leonard, a couple of minutes later, Cooper came out and asked Leonard what he wanted to talk about.   Leonard walked up to Cooper and told him “that's pretty messed up what he [Cooper] did” (referring to reneging on the sale of the printer).   They argued and “got kind of loud.”   Leonard said he “got too close in [Cooper's] space,” and Cooper pushed him off;  Leonard pushed Cooper back.   Then, Cooper stabbed Leonard three times, twice in his abdomen and once in his leg.  (Leonard did not see the weapon and did not realize he had been stabbed until someone said, “You're bleeding,” and he backed up and saw all the blood.)   Leonard had no weapon.

The argument and the pushing occurred a “few inches from [Cooper's] door.”   Leonard said the two men with whom he had been talking took no part in the altercation.   Leonard's girlfriend came downstairs and helped Leonard back to their apartment.   Paramedics came and transported Leonard to the hospital, where surgery was performed;  Leonard remained in the hospital for seven days.   According to Trimble, who called 9-1-1 (as did Leonard's girlfriend, Sarah Anderson), Cooper left the scene after the altercation, even though Trimble told him not to leave.

Cooper was arrested on September 12, 2008, and charged as previously described.

At trial, the defense theory was that Cooper acted in self-defense and that all three of the men (Leonard and the two men with whom he was talking) “jumped in on” Cooper and were punching him.   Trimble testified that, after Cooper told Leonard that he was with his family and did not want to talk, Trimble walked into their apartment followed by Cooper, “and as [Cooper] put the car seat down, [Leonard] socked him.”   When asked if Leonard actually walked into the Cooper/Trimble apartment, Trimble said that Leonard “kind of grabbed for [Cooper] to pull him out of the house.  [Cooper] was trying to close the door to the house as he put the car seat down.   As he tried to close the doors is when the tussling started.”   Trimble also said that both Leonard and the other two men were “throwing punches,” and Cooper was being hit in the head and the face (although Trimble told the 9-1-1 operator when asked that Cooper wasn't hurt at all).  (Trimble also testified that when Nabu went to get the printer, Leonard threw the printer down the stairs (which were concrete), but the printer worked when Trimble hooked it up and appeared to have no damage.)   Trimble further testified about an altercation a week earlier between Leonard and a female who sold crack cocaine, and claimed that a few hours before the stabbing incident, Leonard had come looking for Cooper with a chain wrapped around his fist.   Trimble's accounts of the incident to the police, to the defense investigator, in her 9-1-1 call, and at trial contained various inconsistencies.   When the police arrived on the scene after the stabbing, Trimble did not give her correct name, because there was an outstanding warrant for her arrest in relation to a prostitution charge.   The officer who responded to the scene and interviewed Trimble testified in rebuttal to a number of inconsistencies between that interview and Trimble's trial testimony, including that Trimble told him that Cooper walked with Leonard into the Cooper/Trimble apartment, and when Trimble got there she saw Cooper and Leonard “wrestling on the ground in the apartment,” with the other two men standing in the doorway.³

The police found the Cooper/Trimble apartment to be in order;  it did not appear that any altercation took place there, but a couple of drops of blood were found outside the apartment, about 15 inches from the front door.   The printer was in the apartment, and it was in working order.

Evidence of Leonard's criminal history and medical condition was presented at trial.   Leonard had been convicted of numerous drug and theft felonies (possession of a controlled substance, transportation for sale of a controlled substance (cocaine), grand theft auto, petty theft, and burglaries) from 1986 through 2006.   Leonard's “choice of drug in July of 2008 was crack cocaine,” but he said he did not have any crack cocaine on the day of the stabbing, and he was not drunk.   As to his medical condition, the evidence showed that Leonard suffered from depression, for which two medications were prescribed (Lexapro and Invega), but Leonard had stopped taking the medications a week or two before the incident (and before that, he took the medications “[j]ust off and on”).

While Leonard was in the hospital after the stabbing, Dr. Concepcion Mangasep, a psychiatrist, was asked to do a psychiatric evaluation of Leonard.   Leonard gave her his psychiatric history and medications, answering her questions appropriately and admitting that he was “not compliant with” his medications.   Mangasep found Leonard alert, oriented with his surroundings, able to understand her questions, and cooperative;  he exhibited no symptoms of being violent and no paranoid delusions during her consultation, and his impulse control was “fair and acceptable.”   Leonard was “able to cope” and said he had no desire to get back at his attacker.   Mangasep's diagnosis was that Leonard suffered from “major[ ] depression recurrent with psychotic features.”   Mangasep testified that it is possible that a person who has stopped taking the medications Leonard was taking, and who was faced with a demand for return of a printer he had bought for his children, could react violently.   If the person were also drinking alcohol, that “can and it may” exacerbate the depression and psychosis.   When asked if constant crack cocaine use would add fuel to the fire, Mangasep replied, “Yes. It may.”

The parties stipulated that Dr. Tchaka Shepherd, an expert in trauma surgery, treated Leonard for wounds to his upper left abdomen, lower left abdomen, and left leg, and the wounds were consistent with knife wounds;  that Leonard suffered a lacerated pancreas that resulted in internal bleeding;  and that Leonard admitted to having consumed alcohol on July 13, 2008.

After more than three days of deliberations, the jury found Cooper not guilty of attempted murder, but guilty of the lesser included offense of attempted voluntary manslaughter.   The allegations of personal use of a deadly weapon (where the use is not an element of the crime) was found true, as was the allegation of personal infliction of great bodily injury.   The jury deadlocked on count 2 (assault with a deadly weapon), and the court declared a mistrial on that count.   Cooper waived his right to a jury trial and admitted the truth of his prior conviction.   The court then dismissed count 2 pursuant to section 1385.

The sentencing hearing was held on April 8, 2009.   After confirming the range of possible prison terms on attempted voluntary manslaughter (see §§ 193, subd. (a), 664, subd. (a)), the court stated that the term for the great bodily injury enhancement was three years “and the knife is one.”   Defense counsel argued that, while he did not have any case law on the subject, “manslaughter” was a term of art that included attempted manslaughter, and that the three-year great bodily injury enhancement did not apply.  (Section 12022.7, subdivision (g) provides that “[t]his section [12022.7, requiring a three-year enhancement for infliction of great bodily injury “in the commission of a felony or attempted felony”] shall not apply to murder or manslaughter․”)  The prosecutor responded that, had the Legislature intended to include “attempts” in subdivision (g), it would have done so, just as it did in section 12022.7, subdivision (a).   The trial court agreed with the prosecutor, observing that the two clauses in the statute “are very specific and [subdivision (g) ] is an exception to the entire sentencing structure of the 12022.7[,] specifically murder or manslaughter, not the attempts.”

The prosecutor asked the court to “at least impose mid term [3 years] with the GBI [great bodily injury] [3 years] and the personal use enhancement [one year] for a total of seven years.”   The defense asked for the “low term [one year six months,] three years consec[utive], one year use, and stay the prior prison term ․,” for a total of five and one-half years.   The court thereupon sentenced Cooper to five years and six months in state prison, stating:

“All right.   The court will select the lesser included offense of attempted voluntary manslaughter as the principal term.   That's the ․ only felony he was found guilty of, and the court will impose the low term of one and a half years, three years consecutive on the GBI, and then one year consecutive for the [section] 667.5[, subdivision] (b) prior that he admitted for a total of five and a half years in state prison.”

While the transcript reflects the court sentenced Cooper to one year consecutive for the prison prior, the court's April 8, 2009 minute order shows that the court imposed three-year and one-year consecutive terms for the great bodily injury and personal use enhancements ⁴ (and omitted mention of the prison prior).   Cooper filed an application for correction of the minute order and abstract of judgment, and on January 7, 2010, the trial court ordered the correction, nunc pro tunc, to reflect that the court struck the prison prior, pursuant to section 1385, “on the grounds that there was extensive mitigation.”   The court continued:  “Defendant appeared to be attempting to defend himself in his own home from a group of individuals[,] including the victim[,] who appeared as though they were about to attack him in his home.”) ⁵  Cooper was given custody credits totaling 313 days (209 days actual custody and 104 days good time/work time).   In addition, Cooper was required to pay a court security fee of $20 (§ 1465.8, subd. (a)(1));  a restitution fine of $200 (§ 1202.4, subd. (b));  and a parole revocation restitution fine of $200, stayed (§ 1202.45).

Cooper filed an appeal, and we appointed counsel to represent him.   Cooper's appointed counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436, setting forth the facts of the case but raising no specific issues.   In response to notice from his counsel of his right to file a supplemental brief, Cooper ⁶ submitted a two-page letter with four attachments.⁷

DISCUSSION

We have reviewed the entire record and Cooper's written contentions, and have found no arguable issue.   In his supplemental brief, Cooper asks us to review four potential issues.

First, Cooper contends the prosecution failed to prove every essential element of the crime beyond a reasonable doubt.   However, he points to no element of the crime that was not so proved.

In reviewing a claim of insufficient evidence, we determine whether, viewing the whole record in the light most favorable to the prosecution, the record discloses substantial evidence-evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  (People v. Osband (1996) 13 Cal.4th 622, 690.)   In this case, the record discloses substantial evidence supporting Cooper's conviction of attempted voluntary manslaughter.   As the court instructed, Cooper would be guilty of attempted murder if he took at least one direct but ineffective step toward killing another person and he intended to kill that person.   Further, “[a]n attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill a person because he acted in imperfect self-defense.”   The jury was instructed that Cooper acted in imperfect self-defense if he “took at least one direct but ineffective step toward killing a person,” if he intended to kill when he acted, if he believed he was in imminent danger of being killed or suffering great bodily injury, and if he believed the immediate use of deadly force was necessary to defend against the danger, but his beliefs were unreasonable.  (See People v. Blakeley (2000) 23 Cal.4th 82, 87-88 [a defendant lacks malice and is guilty of voluntary manslaughter when he kills “in ‘unreasonable self-defense’-the unreasonable but good faith belief in having to act in self-defense”].)

There was substantial evidence of attempted murder:  Cooper stabbed an unarmed man three times, twice in the abdomen, and fled from the scene;  from this it is reasonable to infer an intent to kill.   There was likewise substantial evidence from which the jury could conclude that Cooper acted in imperfect self-defense, thus reducing the crime to attempted voluntary manslaughter.   While the jury apparently concluded Cooper believed that he was in imminent danger of great bodily injury and that deadly force was necessary to defend against the danger, it also concluded that Cooper's belief was unreasonable (thus precluding the conclusion that he acted in self-defense).   The jury could reasonably find that Cooper's belief was unreasonable based on Leonard's testimony that no one else participated in the altercation and that he himself was unarmed.   We discern no basis upon which we may interfere with the jury's determination.

Second, Cooper states that his trial counsel refused to call Tchaka Shepherd, Cooper's attending physician, as a witness.   According to Cooper, Shepherd “could have provided crucial testimony that the location [,] angle and circumstances of the injury were less consistent with the intent to cause death rather than to repel an attack․”  But Shepherd was an expert in trauma surgery, and the parties stipulated he would testify the wounds were consistent with knife wounds;  neither he nor anyone else could properly testify to the perpetrator's intent.

Third, Cooper repeats his counsel's claim at sentencing that the great bodily injury enhancement does not apply to attempted voluntary manslaughter.   Like the trial court, we see no support in the statute or elsewhere for reaching that conclusion.   Section 12022.7, subdivision (a) specifically provides that the enhancement applies to “the commission of a felony or attempted felony,” and subdivision (g) of that section excepts “murder or manslaughter.”   Subdivision (g) also excepts violations of sections 451 and 452, which specify the punishment for arson causing great bodily injury and for unlawfully causing a fire that causes great bodily injury.   In addition, subdivision (g) provides that the great bodily injury enhancement does not apply if infliction of great bodily injury is an element of the offense. (§ 12022.7, subd. (g).)  In short, the exceptions to application of the enhancement-including murder and manslaughter-consist of crimes in which the infliction of great bodily injury is necessarily encompassed in the crime.   But great bodily injury is not a necessary element of attempted murder or manslaughter.   There is, accordingly, no basis for supposing that, contrary to the language of the statute, the Legislature had any intention of excluding these attempted crimes from enhanced punishment where great bodily injury is inflicted.

Finally, Cooper points out that the trial court, in connection with its order striking Cooper's prison prior and stating that there was “extensive mitigation,” explained that Cooper “appeared to be attempting to defend himself in his own home from a group of individuals[,] including the victim[,] who appeared as though they were about to attack him in his home.”   To this we can only say that it was for the jury to decide whether Cooper was “attempting to defend himself in his own home,” and there was substantial evidence supporting its contrary conclusion.   Accordingly, there is no legal basis upon which an appellate court may interfere with the jury's verdict.

DISPOSITION

The judgment is affirmed.   The clerk of the superior court is ordered to correct the abstract of judgment to reflect that (1) Cooper was convicted by jury (rather than by plea) and (2) the time imposed for the section 12022.7, subdivision (a) enhancement was three years (rather than one year) and the time imposed for the section 12022, subdivision (b)(1) enhancement was one year (rather than three years), and to forward the corrected abstract to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

FN2. About five weeks before the trial began, Cooper expressed dissatisfaction with his lawyer.   A Marsden hearing was held (People v. Marsden (1970) 2 Cal.3d 118), and the trial court denied Cooper's request for appointment of a substitute attorney.   Cooper then asked to represent himself, but shortly thereafter withdrew the request..  FN2. About five weeks before the trial began, Cooper expressed dissatisfaction with his lawyer.   A Marsden hearing was held (People v. Marsden (1970) 2 Cal.3d 118), and the trial court denied Cooper's request for appointment of a substitute attorney.   Cooper then asked to represent himself, but shortly thereafter withdrew the request.

FN3. The jury was instructed with CALCRIM No. 3477, which relates to the presumption that a defendant reasonably feared imminent death or great bodily injury to himself under specified circumstances involving an intruder inside the home..  FN3. The jury was instructed with CALCRIM No. 3477, which relates to the presumption that a defendant reasonably feared imminent death or great bodily injury to himself under specified circumstances involving an intruder inside the home.

FN4. The minute order erroneously reverses the statutory citations for these enhancements, stating that “[t]he defendant is to serve an additional 3 years consecutive pursuant to ․ section 12022(b)(1), and 1 year pursuant to ․ section 12022.7(a).”   This error also appears in the abstract of judgment (which in addition erroneously states that Cooper was convicted by plea rather than by jury).   We order the correction of these errors in the abstract of judgment..  FN4. The minute order erroneously reverses the statutory citations for these enhancements, stating that “[t]he defendant is to serve an additional 3 years consecutive pursuant to ․ section 12022(b)(1), and 1 year pursuant to ․ section 12022.7(a).”   This error also appears in the abstract of judgment (which in addition erroneously states that Cooper was convicted by plea rather than by jury).   We order the correction of these errors in the abstract of judgment.

FN5. At the sentencing hearing, the court observed:  “It appears as though that this fight probably never would have started except for the victim's actions.   And it was escalated.   The court was particularly struck by the testimony of one of the investigating officers that responded to the scene when the People ․ impeach[ed] the defendant's wife․  [¶] ․ [¶] ․ The impeachment testimony was to the effect that she saw them fighting inside the home not outside.”.  FN5. At the sentencing hearing, the court observed:  “It appears as though that this fight probably never would have started except for the victim's actions.   And it was escalated.   The court was particularly struck by the testimony of one of the investigating officers that responded to the scene when the People ․ impeach[ed] the defendant's wife․  [¶] ․ [¶] ․ The impeachment testimony was to the effect that she saw them fighting inside the home not outside.”

FN6. The information, verdict form, and abstract of judgment identify the defendant as Treven Jerome Cooper.   In his supplemental brief, Cooper identifies himself as Trevan Jerome Cooper..  FN6. The information, verdict form, and abstract of judgment identify the defendant as Treven Jerome Cooper.   In his supplemental brief, Cooper identifies himself as Trevan Jerome Cooper.

FN7. The attachments were Cooper's proposed witness list, highlighted copies of section 198.5 (relating to the presumption in favor of one who uses deadly force against an intruder) and of CALCRIM No. 3477, and the court's January 7, 2010 minute order..  FN7. The attachments were Cooper's proposed witness list, highlighted copies of section 198.5 (relating to the presumption in favor of one who uses deadly force against an intruder) and of CALCRIM No. 3477, and the court's January 7, 2010 minute order.

BIGELOW, P. J. RUBIN, J.