[Copyrighted Material Omitted]
Cal.Rptr.3d 14] ORIGINAL PROCEEDINGS. Writ of habeas corpus.
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 [255 Cal.Rptr.3d 15] 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,
172 Cal.Rptr.3d 438, 325 P.3d 972 (Chiu ) and
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.
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.
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 ...