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In re Cobbs

California Court of Appeals, Third District, San Joaquin

September 17, 2019

In re RICKY LEE COBBS on Habeas Corpus.

          ORIGINAL PROCEEDINGS. Writ of habeas corpus. Granted.

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

          Xavier Becerra, Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Eric L. Christoffersen, Supervising Deputy Attorney General, Catherine Tennant Nieto, Deputy Attorney General, for Plaintiff and Respondent.

          OPINION ON TRANSFER

          HOCH, J.

         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 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 and Martinez, but does not address SB 1437. The Attorney General thus 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 parties that the first degree murder conviction cannot stand in light of Chiu, supra, 59 Cal.4th 155and Martinez, supra, 3 Cal.5th 1216, but disagree on the remedy. While SB 1437 changes the law underlying both theories of guilt, it provides a procedure for those who seek retroactive application, section 1170.95. That procedure is the sole means by which a person may obtain relief for a conviction that becomes final before the effective date of SB 1437. Accordingly, we shall vacate the first degree murder conviction and order additional proceedings in the trial court.

         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.

         “The jury convicted defendant of first degree murder in count one (... § 187), without indicating the theory on which it based its verdict. It also found true allegations the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and defendant was armed with a firearm (§ 12022, subd. (a)(1)). The jury found defendant guilty of street terrorism in count two (§ 186.22, subd. (a)). The court sentenced defendant to an aggregate term of 53 years to life in prison.” (People v. Cobbs (April 18, 2001, C031265) [nonpub. opn.] (fn. omitted).) We affirmed the judgment on appeal. (People v. Cobbs, supra, C031265.)

         Petitioner filed a petition for habeas corpus in this court that we denied on November 2, 2018. After petitioner filed a petition for review in the California Supreme Court on January 2, 2019, the Supreme Court transferred the matter to us, with directions to vacate the denial and issue an order to show cause returnable to this court as to why petitioner is not entitled to relief.

         DISCUSSION

         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. Instead, “punishment for second degree murder is commensurate with a defendant's culpability for aiding and abetting a target crime that would naturally, probably, and foreseeably result in a murder under the natural and probable consequences doctrine.” (Id. at p. 166.) In Martinez, supra, 3 Cal.5th 1216, the Supreme Court held that Chiu applies retroactively. (Martinez, at p. 1222.) Chiu therefore applies to defendant's first degree murder conviction.

         The defendant in Chiu was convicted of first degree murder “on the theory that either he directly aided and abetted the murder or he aided and abetted the ‘target offense' of assault or of disturbing the peace, the natural and probable consequence of which was murder.” (Chiu, supra, 59 Cal.4th at p. 158.) Since the high court held a defendant cannot be convicted of first degree murder under the natural and probable consequences doctrine, it was error for the trial court to instruct the jury with that theory. (Id. at pp. 158-159.) The error was prejudicial because “[w]hen a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground, ” and such a finding could not be made in Chiu. (Id. at p. 167.) The remedy was to reverse the first ...


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