Filed 9/17/19
                             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.                        OPINION ON TRANSFER


        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.



        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




1       Undesignated statutory references are to the Penal Code.

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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 155 and 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.

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       “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

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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 degree murder conviction while “allowing the People to
accept a reduction of the conviction to second degree murder or to retry the greater
offense” pursuant to the “direct aiding and abetting theory.” (Id. at p. 168.)
       The Attorney General admits Chiu, supra, 59 Cal.4th 155 is applicable and
provides the appropriate remedy. We agree the first degree murder conviction is invalid
under Chiu as there is no basis to find that the jury did not rely on aiding and abetting
under the natural and probable consequence theory.
       What the Attorney General does not address but petitioner does, is the substantial
change to the law governing felony murder and the natural and probable consequences
theory enacted since Chiu.
       After Chiu, supra, 59 Cal.4th 155 was decided, SB 1437 was signed into law.
SB 1437 was enacted to “amend the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with the intent to kill, or was
not a major participant in the underlying felony who acted with reckless indifference to
human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) SB 1437 accomplishes this by
amending section 188, which defines malice, and section 189, which defines the degrees
of murder and addresses liability for murder.
       SB 1437 made two major additions to sections 188 and 189. Subdivision (a)(3)
was added to section 188 and reads as follows: “Except as stated in subdivision (e) of
Section 189, in order to be convicted of murder, a principal in a crime shall act with



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malice aforethought. Malice shall not be imputed to a person based solely on his or her
participation in a crime.” (Stats. 2018, ch. 1015, § 2.)
       SB 1437 also added subdivision (e) to section 189, which states: “(e) A
participant in the perpetration or attempted perpetration of a felony listed in
subdivision (a) in which a death occurs is liable for murder only if one of the following is
proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual
killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in the commission of murder in the first
degree. [¶] (3) The person was a major participant in the underlying felony and acted
with reckless indifference to human life, as described in subdivision (d) of Section
190.2.” (Stats. 2018, ch. 1015, § 3.)
       Petitioner asserts both2 theories of guilt are now invalid under the changes to
sections 188 and 189, as the natural and probable consequences theory is now abolished




2      The Attorney General asserts there was a third theory of guilt for first degree
murder at petitioner’s trial, as an aider and abettor to first degree premeditated
murder. The only citation in support of this claim is two pages of the reporter’s
transcript from petitioner’s trial, asserted without appending the relevant pages to the
return or seeking judicial notice of or incorporation by reference of the record of
petitioner’s direct appeal of his conviction. In addition to contravening our own
characterization of the theories of guilt in our prior opinion, the Attorney General’s
claim is not supported by the record.
        As petitioner points out with citation to relevant materials appended to the
supplemental traverse, the prosecutor argued in closing that there were but two
theories of guilt for first degree murder, stating: “The issue before you plain and
simple was whether or not this was murder during a robbery, which makes defendant
liable, or whether or not this is murder which is a natural or probable and foreseeable
type of a crime that the defendant instigated and was aiding and abetting. Because
if you find it to be felony murder, the defendant is guilty of murder. If you find it
to be aiding and abetting a foreseeable crime it is again murder and murder in the first
degree.” We reject the Attorney General’s unfounded assertion that there was a third
theory of guilt.

                                              5
and liability under a felony murder theory requires proof and a jury finding that petitioner
was the killer, aided and abetted the killer with the intent to kill, or was a major
participant in the underlying felony (robbery) with reckless indifference to human life.
According to petitioner, the changes in the law of murder relieve this court of its duty to
follow the Supreme Court opinion in Chiu, supra, 59 Cal.4th 155 as it relates to remedy.
His proposed remedy is to vacate the first degree murder conviction and remand to the
trial court for further proceedings consistent with sections 188 and 189.
       We are bound to follow Chiu, supra, 59 Cal.4th 155 until it is disapproved. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) However, the interplay
between the theories of guilt in petitioner’s case and the changes enacted by SB 1437
have the potential to distinguish Chiu, if SB 1437 applies retroactively to petitioner’s
conviction. Petitioner’s argument overlooks a key element of SB 1437 governing
retroactivity.
       As with other enactments that have reduced penalties for crimes (see §§ 1170.18
[resentencing under Proposition 47], 1170.126 [resentencing under Proposition 36]),
SB 1437 contains a provision for addressing claims of defendants who were convicted
of murder prior to its effective date. SB 1437 also enacted section 1170.95 that
permits defendants “convicted of felony murder or murder under a natural and
probable consequences theory [to] file a petition with the court that sentenced the
petitioner to have the petitioner’s murder conviction vacated and to be resentenced
on any remaining counts . . . .” (§ 1170.95, subd. (a).) Like the resentencing provisions
of Propositions 36 and 47, section 1170.95 provides a detailed mechanism for obtaining
relief by petition.
       A person may file a section 1170.95 petition if: “(1) A complaint, information, or
indictment was filed against the petitioner that allowed the prosecution to proceed under
a theory of felony murder or murder under the natural and probable consequences
doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder

                                              6
following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be
convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could
not be convicted of first or second degree murder because of changes to Section 188 or
189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(1)-(3).)
       “The petition shall be filed with the court that sentenced the petitioner and served
by the petitioner on the district attorney, or on the agency that prosecuted the petitioner,
and on the attorney who represented the petitioner in the trial court or on the public
defender of the county where the petitioner was convicted. If the judge that originally
sentenced the petitioner is not available to resentence the petitioner, the presiding judge
shall designate another judge to rule on the petition.” (§ 1170.95, subd. (b)(1).)
       The court then reviews the petition for a prima facie case, and will appoint counsel
for petitioner if requested. (§ 1170.95, subd. (c).) The prosecuting agency has 60 days to
file an answer to the petition, and petitioner has 30 days to file a reply, with time
extensions permitted for good cause. (Ibid.) If the court finds the petition establishes a
prima facie case, then it shall issue an order to show cause. (Ibid.) It then has 60 days to
hold a hearing on the petition, at which the prosecution must prove beyond a reasonable
doubt that petitioner is ineligible for resentencing, unless there was a prior finding that
the petitioner did not act with reckless indifference to human life or was not a major
participant in the felony, in which case the murder conviction and any enhancements are
vacated. (§ 1170.95, subd. (d)(1)-(3).) If the petitioner is entitled to relief, the murder
conviction and any enhancements will be vacated, and, if “murder was charged
generically, and the target offense was not charged, the petitioner’s conviction shall be
redesignated as the target offense or underlying felony for resentencing purposes.”
(§ 1170.95, subd. (e).)
       In People v. Martinez (2019) 31 Cal.App.5th 719 (Martinez II), Division Five of
the Second District Court of Appeal found a defendant must file a section 1170.95
petition in the trial court to obtain relief under SB 1437. (Martinez II, at pp. 729-730.)

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Relying on California Supreme Court decisions finding the resentencing provisions of
Propositions 36 and 47 were the sole avenues for relief under those provisions (see
People v. Conley (2016) 63 Cal.4th 646 (Conley) [Proposition 36]; People v DeHoyos
(2018) 4 Cal.5th 594 (DeHoyos) [Proposition 47]), the Court of Appeal found
section 1170.95 similarly limited relief under SB 1437. (Martinez II, at pp. 725-728.)
We agree with Martinez II.
       In Conley, the Supreme Court held the resentencing provision for Proposition 36,
section 1170.126, was the sole means by which a person sentenced before Proposition 36
took effect could obtain relief. (Conley, supra, 63 Cal.4th at pp. 661-662.) The Supreme
Court noted Proposition 36 addressed the question of retroactivity through
section 1170.126 that did not distinguish between those serving final sentences and those
whose sentences were not yet final. (Conley, at p. 657.) Resentencing was not automatic
under section 1170.126 but could be denied if certain disqualifying factors were present
or if the resentencing posed an unreasonable risk of danger to public safety. (Conley, at
pp. 658, 659.) Whether such exclusions applied required findings that typically would
not be made at trial that led to the defendant’s conviction. (Id. at pp. 659-660.) “In short,
application of the Reform Act’s revised sentencing scheme would not be so simple as
mechanically substituting a second strike sentence for a previously imposed
indeterminate life term.” (Id. at p. 660.) From this, the Supreme Court concluded the
voters intended for section 1170.126 to be the sole means of relief for defendants
sentenced before Proposition 36 took effect. (Conley, at p. 661.)
       The same result applied to the resentencing provision of Proposition 47,
section 1170.18, in DeHoyos, supra, 4 Cal.5th 594. “Similar considerations lead us to a
similar conclusion in this case. Like the Reform Act, Proposition 47 is an ameliorative
criminal law measure that is ‘not silent on the question of retroactivity,’ but instead
contains a detailed set of provisions designed to extend the statute’s benefits
retroactively. [Citation.] Those provisions include, as relevant here, a recall and

                                              8
resentencing mechanism for individuals who were ‘serving a sentence’ for a covered
offense as of Proposition 47’s effective date. [Citation.] Like the parallel resentencing
provision of the Reform Act, section 1170.18 draws no express distinction between
persons serving final sentences and those serving nonfinal sentences, instead entitling
both categories of prisoners to petition courts for recall of sentence. [Citation.] And like
the resentencing provision of the Reform Act, section 1170.18 expressly makes
resentencing dependent on a court’s assessment of the likelihood that a defendant’s early
release will pose a risk to public safety, undermining the idea that voters ‘categorically
determined that “imposition of a lesser punishment” will in all cases “sufficiently serve
the public interest.” ’ [Citations.]” (DeHoyos, supra, 4 Cal.5th at p. 603.) Following
DeHoyos, “section 1170.18 supplies the exclusive path to relief on a current offense
under Proposition 47 for defendants who were serving felony sentences as of the
measure’s effective date, including those whose judgments were on appeal and thus not
yet final.” (People v. Lara (2019) 6 Cal.5th 1128, 1131.)
       The same applies to the changes enacted under SB 1437. For those, like
petitioner, whose convictions are final and are serving sentences for crimes that may
come under the ambit of SB 1437, section 1170.95 is the exclusive means of obtaining
relief. While we cannot grant petitioner the relief he seeks in habeas, he is entitled to
seek relief under section 1170.95. What relief petitioner is entitled to is contingent on the
outcome of his section 1170.95 petition. Chiu, supra, 59 Cal.4th governs until SB 1437
applies retroactively through the grant of a section 1170.95 petition. Thus, defendant
currently stands convicted of second degree murder. The People’s option to retry
defendant for first degree murder under Chiu cannot be exercised until the
section 1170.95 petition is resolved. If the section 1170.95 petition is granted, then the
(now) second degree murder conviction will be vacated and he will be resentenced in
accordance with section 1170.95. If the petition is denied, then the People have the
option of retrying petitioner for first degree murder under a robbery felony murder

                                              9
theory, as that crime is defined following SB 1437, or accept the second degree murder
conviction.
       The narrower definition of felony murder following SB 1437 does not prevent
retrial. In People v. Jackson (2018) 26 Cal.App.5th 371, the defendant stole a vehicle
after Proposition 47 took effect, but she was tried before the Supreme Court determined
that Proposition 47 applied to vehicle thefts under Vehicle Code section 10851.
(Jackson, at pp. 377-378.) As a result of the Supreme Court’s decision, a new element
was added for felony vehicle thefts, that the stolen vehicle be worth more than $950. (Id.
at p. 377; People v. Page (2017) 3 Cal.5th 1175, 1183.) The trial court in Jackson
committed instructional error by failing to include this element in the instruction on
Vehicle Code section 10851. (Jackson, at p. 378.) While the jury was instructed on both
valid and invalid legal theories, reversal was required because the Attorney General could
not overcome the presumption of prejudice. (Id. at pp. 380-381.) On remand, the People
could either accept a misdemeanor conviction under Vehicle Code section 10851 or retry
the felony under the narrower definition of felony vehicle theft that included the element
of the vehicle’s value exceeding $950. (Id. at p. 381.)
       The same applies here. While petitioner was tried under a definition of felony
murder that is no longer valid, if he fails to obtain relief under section 1170.95, then the
People have the option of accepting a second degree murder conviction or retrying
petitioner for first degree murder under a robbery felony murder theory, under the current
definition of that crime. Since the natural and probable consequences theory of liability
was abolished by SB 1437, petitioner cannot be retried under that theory. If petitioner is
no longer convicted of first degree murder after additional proceedings conclude, then
resentencing is necessary.




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                                     DISPOSITION
      Let a writ of habeas corpus issue, vacating petitioner’s first degree murder
conviction and remanding the matter to the San Joaquin County Superior Court for
additional proceedings consistent with this opinion.




                                                             /s/
                                                 HOCH, J.



We concur:



        /s/
HULL, Acting P. J.



           /s/
BUTZ, J.




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