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California Court of Appeal Explains Procedures to Determine Appropriate Relief When Conviction Is Vacated Based on People v. Chiu and Senate Bill 1437

by Douglas Ankney

The Court of Appeal of California, Third Appellate District, explained the procedures to be followed in determining the appropriate relief when a conviction has been vacated based upon Senate Bill 1437 (“SB 1437”) and People v. Chiu, 325 P.3d 972 (Cal. 2014). 

In 2000, Ricky Lee Cobbs was one of several young men who confronted Kenny W. after Cobbs discovered his gun was missing. While the men were beating Kenny W., one of the other men shot him through the heart. The prosecution argued Cobbs was guilty of first-degree murder based on either of two theories: felony murder based on attempted robbery and/or murder as the natural and probable consequence of assault and battery.

The jury convicted Cobbs of first-degree murder but failed to indicate the theory on which it based its verdict. Then in 2014, the California Supreme Court decided Chiu, which held that 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.” 

The California Supreme Court made Chiu retroactive In re Martinez, 407 P.3d 1 (Cal. 2017). In 2018, SB 1437 became effective. It amended “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 intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” 

Cobbs filed a petition for habeas corpus, arguing his conviction be vacated because both of the prosecution’s theories are now invalid. The Court of Appeal dismissed his petition, but upon Cobbs’ petition for review, the California Supreme Court directed the Court of Appeal to vacate the denial and issue an order to show cause as to why Cobbs was not entitled to relief.

The Court of Appeal determined that Chiu, via Martinez, applies to Cobbs’ case. However, the interplay between theories of guilt in his case and the changes enacted by SB 1437 had the potential to distinguish Chiu if SB 1437 applies retroactively to his case. SB 1437 enacted, inter alia, Cal. Penal Code § 1170.95, which 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 petitioner’s murder conviction vacated and to be resentenced on any remaining counts....” The court then reviews the petition for a prima facie case and appoints counsel if requested. § 1170.95(c). The prosecution has 60 days to file an answer, and the petitioner then has 30 days to file a reply. Id.

If the court determines a prima facie case is established, it shall issue an order to show cause, and within 60 days, a hearing must be held wherein the prosecution must prove beyond a reasonable doubt that the petitioner is ineligible for resentencing. Id. If the prosecution fails to meet its burden, 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 as the target offense or underlying felony for resentencing purposes.” § 1170.95(e). In People v. Martinez, 31 Cal.App.5th 719 (2019), Division Five of the Second District Court of Appeal ruled that a defendant must file a § 1170.95 petition in the trial court to obtain relief under SB 1437. 

In the instant case, the Court concluded Cobbs was entitled to relief. But what that relief would be was contingent on the outcome of his § 1170.95 petition. Because Chiu applies until a decision on that petition is made, Cobbs currently stands convicted of second-degree murder.

If the § 1170.95 petition is granted, then Cobb will be resentenced under that section. If the petition is denied, then the People will have the option of retrying Cobbs for first-degree murder under a robbery felony murder theory as that crime is now defined by SB 1437 or let the second-degree murder conviction stand. 

Accordingly, the Court ordered the writ of habeas corpus be issued, vacating Cobbs’ first-degree murder conviction, and remanded the matter to the San Joaquin County Superior Court for additional proceedings consistent with the Court’s opinion. See: In re Cobbs, 2019 Cal. App. LEXIS 880 (2019). 

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Related legal case

In re Cobbs



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