Filed 6/25/26 P. v. Cosper 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
THE PEOPLE, C103604
Plaintiff and Respondent,
(Super. Ct. No. 24CF02007)
v.
LEXY ANNE COSPER,
Defendant and Appellant.
Defendant Lexy Anne Cosper pled guilty to driving under the influence causing
injury and received a sentence of four years four months. She appeals, arguing the trial
court denied her request for probation based on the erroneous assumption that she was
presumptively ineligible for probation under Penal Code1 section 1203, subdivision
(e)(3). The People concede error but contend remand is not required. We vacate
Cosper’s sentence and remand for resentencing.
BACKGROUND
In April 2024, Cosper was driving about 30 miles an hour when she hit an adult
male who was riding an electric unicycle at a crosswalk. The victim’s six-year-old son
was also at the crosswalk on a bicycle but narrowly avoided being hit. Surveillance
footage showed Cosper driving through the stop sign and colliding with the victim,
1 Undesignated statutory references are to the Penal Code.
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ejecting him from the unicycle and throwing his body 10 to 15 feet. The victim suffered
numerous facial injuries as a result, requiring extensive reconstructive surgery. Cosper
refused to submit to a breath alcohol test, but her blood alcohol concentration was later
measured at between 0.380 and 0.384 percent.
A complaint deemed an information charged Cosper with driving under the
influence of alcohol causing injury (Veh. Code, § 23153, subd. (a); count 1) and driving
with a blood-alcohol content of 0.08 percent or higher (Veh. Code, § 23153, subd. (b);
count 2). On both counts the information alleged enhancement allegations that Cosper
had a blood-alcohol content of 0.15 percent or higher (Veh. Code, § 23578) and
personally inflicted great bodily injury (§ 12022.7, subd. (a)).
Cosper pled no contest to driving under the influence of alcohol causing injury
(count 1), admitted the enhancements, and agreed that the court could find any
aggravating factors, in exchange for a maximum sentence of six years.
The probation department filed a report stating Cosper was presumptively
ineligible for probation under section 1203, subdivision (e)(3) because she admitted an
enhancement for inflicting great bodily injury. It recommended the middle term of two
years, plus three years on the great bodily injury enhancement, for a total of five years in
state prison. The probation department discussed the criteria affecting probation under
California Rules of Court,2 rule 4.414(a), finding, among other things, that: (1) the
instant offense was more serious than other instances of the same crime; (2) Cosper
inflicted physical injury; (3) the victim sustained an estimated $15,804 in losses, plus
dental expenses; and (4) Cosper was an active participant.
The probation department also discussed the criteria affecting probation under rule
4.414(b), finding: (1) Cosper’s prior criminal record consisted of one misdemeanor
2 Further rule references are to California Rules of Court.
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offense; (2) she had never been on supervised release; (3) she expressed a willingness to
comply with probation; (4) she had the ability to comply with probation;
(5) imprisonment would have a substantial effect as Cosper had recently given birth;
(6) she would suffer collateral consequences since this was her first felony; (7) she had
expressed remorse; and (8) she was a danger to others if not imprisoned. However, the
department reported that if Cosper was not subject to section 1203, subdivision (e)(3), it
would have recommended probation.
Defense counsel filed a statement in mitigation requesting probation. Counsel
noted the probation department’s determination that she was presumptively ineligible for
probation but argued that her case presented factors supporting an unusual case finding
under rule 4.413, and the totality of circumstances justified probation. Counsel also
noted, among other things, Cosper’s history of substance abuse, young age, lack of
significant criminal history, and purported low risk of reoffending if in treatment.
Defense counsel also attached a psychologist’s report detailing Cosper’s history of
abuse and trauma, medical issues, alcohol abuse, prior mental health treatment, and
efforts at sobriety. The psychologist diagnosed her with severe alcohol use disorder,
posttraumatic stress disorder, generalized anxiety disorder, major depressive disorder,
and a neurocognitive disorder due to a traumatic brain injury. The psychologist
recommended against incarceration because of Cosper’s remorse, progress towards
sobriety, role as a primary caregiver, and low risk of recidivism or danger to society.
At sentencing, defense counsel recounted Cosper’s background and once again
argued for probation while acknowledging, “this case as the Court is well aware is a
prison presumptive case.” After defense counsel argued for probation, the victim
testified regarding his injuries and the ongoing impact of the accident and argued that
treatment, not prison, was appropriate to protect the public. The People then argued a
prison sentence was necessary for the safety of the public.
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The trial court stated it had read and considered the probation report, the
psychologist’s report, and Cosper’s statement in mitigation. The trial court found Cosper
was presumptively ineligible for probation under section 1203, subdivision (e)(3), and
found that she did not meet any of the unusual circumstances and therefore denied
probation. The court then stated that “even if the defendant were not presumptively
ineligible for probation, probation would be denied due to the nature, seriousness and
circumstances of this case.”
The court noted that Cosper had stipulated to the court finding aggravating factors
at sentencing, and it acknowledged Cosper’s history of trauma, including abuse, neglect,
exploitation, or sexual violence. Because of that trauma, the court considered whether to
impose the lower term under section 1170, subdivision (b)(6), and found that the
circumstances in mitigation did not outweigh the circumstances in aggravation under
rules 4.421 and 4.423. The court found in aggravation that (1) the crime involved great
violence, great bodily harm, threat of great bodily harm or other act disclosing a high
degree of cruelty, viciousness, or callousness, (2) the victim was particularly vulnerable,
and (3) the crime involved damaging or taking of great monetary value. The court found
in mitigation that Cosper had a minimal or insignificant prior criminal record with one
prior misdemeanor and no felony convictions.
The court sentenced Cosper to prison for the low term of 16 months on count 1
plus three years for the great bodily injury enhancement under section 12022.7,
subdivision (a), for an aggregate sentence of four years four months. Cosper timely
appealed and did not request a certificate of probable cause.
After Cosper appealed, she moved to recall and reconsider her sentence under
section 1172.1, arguing, among other things, that the court had erroneously determined
she was presumptively ineligible for a grant of probation under section 1203,
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subdivision (e)(3), and the court and the parties had relied on this erroneous assessment at
sentencing.3 The trial court summarily denied the request.
DISCUSSION
Cosper contends remand is required for resentencing because the trial court denied
probation based on the erroneous determination that she was presumptively ineligible for
probation. The People concede error but argue remand is not required because Cosper
forfeited this challenge and the record clearly indicates the trial court would have denied
probation regardless. Despite Cosper’s failure to preserve the issue below, we review her
contention on the merits to forestall an ineffective assistance of counsel claim. (People v.
Crittenden (1994) 9 Cal.4th 83, 146.)
All defendants are eligible for probation, in the discretion of the sentencing court,
unless a statute provides otherwise. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.)
Some statutes bar probation absolutely, while others provide that a defendant is ineligible
except in unusual cases where the interests of justice would be served. (Ibid.) Here, the
trial court apparently relied on the probation report and defense counsel to conclude
section 1203, subdivision (e)(3) rendered Cosper ineligible for probation.
Section 1203, subdivision (e), provides in relevant part, that “[e]xcept in unusual
cases in which the interests of justice would best be served if the person is granted
probation, probation shall not be granted to … [¶] … [a]ny person who willfully inflicted
great bodily injury or torture in the perpetration of the crime of which that person has
been convicted.” (§ 1203, subd. (e)(3).) By its terms, section 1203, subdivision (e)(3)
renders a defendant conditionally ineligible for probation only when there has been a
finding the injury was willful, i.e., intentional. (§ 1203, subd. (e)(3); People v. Lewis
(2004) 120 Cal.App.4th 837, 854.) Here, there was no such finding, and the People
3 We grant Cosper’s unopposed request for judicial notice filed February 2, 2026. (Evid.
Code, §§ 452, subds. (c), (d).)
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concede that Cosper’s no contest plea does not establish that she admitted to willfully
inflicting great bodily injury on the victim. Thus, absent any additional findings by the
trial court, section 1203, subdivision (e) did not render Cosper presumptively ineligible
for probation, and the trial court erred in applying that presumption.
We next consider whether the trial court’s application of an erroneous standard of
probation eligibility entitles Cosper to a new sentencing hearing. Where “the sentencing
court bases its determination to deny probation in significant part upon an erroneous
impression of the defendant’s legal status, fundamental fairness requires that the
defendant be afforded a new hearing and ‘an informed, intelligent and just decision’ on
the basis of the facts.” (People v. Ruiz (1975) 14 Cal.3d 163, 168, italics omitted; see
also People v. Manriquez (1991) 235 Cal.App.3d 1614, 1620.)
The People concede the trial court’s error, but argue remand is not required
because the trial court determined that it would deny probation even if Cosper was not
presumptively ineligible given the factors in aggravation and mitigation under rule 4.414.
We do not think the record is so clear. While the trial court did enumerate a number of
the criteria set forth in rule 4.414, and focused on the prevalence of aggravating factors,
the court also expressly invoked the presumptive ineligibility standard of section 1203,
subdivision (e)(3), and stated its decision was based on the absence of unusual
circumstances that would warrant granting probation. The probation department also
specifically stated that it would have recommended probation if not for the presumption
against probation, and the victim argued against a prison sentence. On this record, we
cannot say the trial court’s error was not a significant factor in the decision to deny
probation.
Here, the record demonstrates the trial court misunderstood the scope of its
discretion and may have relied upon the error to deny probation. (See People v. Ruiz,
supra, 14 Cal.3d at p. 168; People v. Manriquez, supra, 235 Cal.App.3d at p. 1620
[remand for resentencing required due to mistaken application of § 1203, subd. (e)(1)].)
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A new sentencing hearing is therefore necessary for the trial court to consider Cosper’s
probation request under the appropriate legal standard. (People v. Downey (2000) 82
Cal.App.4th 899, 912 [“[w]here, as here, a sentence choice is based on an erroneous
understanding of the law, the matter must be remanded for an informed determination”].)
DISPOSITION
The sentence is vacated and the case is remanded to the trial court for resentencing
in a manner consistent with this opinion. The judgment is otherwise affirmed.
/s/
BOULWARE EURIE, J.
We concur:
/s/
KRAUSE, Acting P. J.
/s/
MESIWALA, J.
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