California Court of Appeals, Third District, San Joaquin
ORIGINAL PROCEEDINGS. Writ of habeas corpus. Super. Ct. Nos.
Lee Cobbs, in propria persona, and Diane Nichols, under
appointment by the Court of Appeal, for Petitioner.
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.
OPINION ON TRANSFER AFTER REHEARING
Ricky Lee Cobbs was convicted of, among other crimes, first
degree murder (Pen. Code, § 187) 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.
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.
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.
briefly summarize the relevant facts and procedures occurring
prior to the petition from our nonpublished opinion affirming
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
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.)
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.
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 ...