In re Cobbs

California Court of Appeal Nov 8, 2019 No. C088160APublished

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Holding. The court held that a defendant convicted of first degree murder under the natural and probable consequences doctrine is entitled to have that conviction vacated under People v. Chiu, but must pursue relief under Senate Bill No. 1437's specific resentencing provisions rather than through habeas corpus.

Issues

Whether a first degree murder conviction based on the natural and probable consequences doctrine is invalid under People v. Chiu.
Whether Senate Bill No. 1437 applies retroactively to a habeas corpus proceeding to vacate a murder conviction.
Whether section 1170.95 provides the exclusive mechanism for relief under Senate Bill No. 1437 for defendants convicted prior to its enactment.

Disposition. reversed

Quotations verified verbatim against the opinion

“The Supreme Court held in Chiu, supra, 59 Cal.4th 155, an aider and abettor of a target offense may not be convicted of first degree murder under the natural and probable consequences doctrine.”

“Since this habeas action is not a resentencing petition under section 1170.95, SB 1437 is inapplicable and Chiu, supra, 59 Cal.4th 155 governs.”

“Petitioner Ricky Lee Cobbs’s conviction for first degree murder is reversed and the San Joaquin County Superior Court is directed to conduct additional proceedings consistent with this opinion.”

Filed 11/8/19; Opinion following rehearing CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ----

In re RICKY LEE COBBS C088160

on Habeas Corpus. (Super. Ct. Nos. STKCRFE19980005981, SC063184A)

OPINION ON TRANSFER AFTER REHEARING

ORIGINAL PROCEEDINGS. Writ of habeas corpus.

Ricky Lee Cobbs, in propria persona, and Diane Nichols, under appointment by the Court of Appeal, for Petitioner.

Xavier Becerra, Attorney General, Lance Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Darren K. Indermill, Supervising Deputy Attorney General, Eric L. Christoffersen, Supervising Deputy Attorney General, Catherine Tennant Nieto, Deputy Attorney General, for Respondent.

Petitioner Ricky Lee Cobbs was convicted of, among other crimes, first degree murder (Pen. Code, § 187)1 in a prosecution relying on two theories of guilt: felony

1 Undesignated statutory references are to the Penal Code.

murder based on attempted robbery, and murder as the natural and probable consequence of assault and battery. Petitioner contends the second theory is now invalid under People v. Chiu (2014) 59 Cal.4th 155 (Chiu) and In re Martinez (2017) 3 Cal.5th 1216 (Martinez), and both theories are invalid following changes enacted under Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 2 (SB 1437).) He contends we should vacate his conviction and direct the trial court to conduct further proceedings consistent with sections 188 and 189. The Attorney General agrees the first degree murder conviction is invalid under Chiu, supra, 59 Cal.4th 155 and Martinez, supra, 3 Cal.5th 1216, and asserts the remedy should be that provided for in Chiu and Martinez: reverse the first degree murder conviction, and give the People the option of retrying the first degree murder count or reducing the conviction to second degree murder. We agree with the Attorney General, as SB 1437 applies retroactively only through its resentencing provision, which does not apply in this habeas proceeding. Accordingly, we shall vacate the first degree murder conviction and remand for further proceedings. BACKGROUND We briefly summarize the relevant facts and procedures occurring prior to the petition from our nonpublished opinion affirming petitioner’s conviction. “Defendant Ricky Lee Cobbs was one of several young men who confronted [Kenny W.] at the home of his fiancée [] after defendant discovered his gun was missing. While defendant and others were kicking and beating [Kenny W.], one of the men pulled out a gun, and shot [Kenny W.] through the heart. At trial with codefendant Undrey Darnel Turner, the prosecution argued defendant was guilty of first degree murder on either of two theories: felony murder based on attempted robbery, and murder as the natural and probable consequence of assault and battery.

In re Cobbs

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OPINION ON TRANSFER AFTER REHEARING

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