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In re Cobbs

California Court of Appeals, Third District

November 8, 2019

IN RE Ricky Lee COBBS on Habeas Corpus.

Page 1074

[Copyrighted Material Omitted]

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         [255 Cal.Rptr.3d 14] ORIGINAL PROCEEDINGS. Writ of habeas corpus.

         COUNSEL

         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.

          OPINION ON TRANSFER AFTER REHEARING

         HOCH, J.

         Petitioner Ricky Lee Cobbs was convicted of, among other crimes, first degree [255 Cal.Rptr.3d 15] 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, 172 Cal.Rptr.3d 438, 325 P.3d 972 (Chiu ) and

Page 1076

In re Martinez (2017) 3 Cal.5th 1216, 226 Cal.Rptr.3d 315, 407 P.3d 1 (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, 172 Cal.Rptr.3d 438, 325 P.3d 972 and Martinez, supra, 3 Cal.5th 1216, 226 Cal.Rptr.3d 315, 407 P.3d 1, 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 ...


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