In re Lopez

IN THE SUPREME COURT OF
CALIFORNIA
In re RICO RICARDO LOPEZ
on Habeas Corpus.
S258912
First Appellate District, Division One
A152748
Sonoma County Superior Court
SCR32760
April 3, 2023
Chief Justice Guerrero authored the opinion of the Court, in
which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and
Evans concurred.
In re LOPEZ
S258912
Opinion of the Court by Guerrero, C. J.
In 2005, Rico Ricardo Lopez was tried along with several
codefendants for the murder of Ignacio Gomez. A jury convicted
Lopez and three of his codefendants (Peter Amante, Rogelio
Cardenas, and Patrick Higuera, Jr.) of Gomez’s first degree
premeditated murder (Pen. Code, §§ 187, subd. (a), 189)1 and
found true the gang-murder special circumstance (§ 190.2,
subd. (a)(22)) and the criminal street gang sentencing
enhancement (§ 186.22, subd. (b)(1)). The remaining
codefendant (Mario Ochoa-Gonzales) was acquitted of murder
but convicted of being an accessory after the fact (§ 32) with a
gang enhancement (§ 186.22, subd. (b)(1)). The trial court
sentenced Lopez to life imprisonment without the possibility of
parole. In an unpublished opinion, the Court of Appeal
affirmed. (People v. Amante (Sept. 3, 2009, A113655) [nonpub.
opn.].)
Later, following our opinion in People v. Chiu (2014)
59 Cal.4th 155 (Chiu), Lopez filed a petition for writ of habeas
corpus challenging his conviction. Lopez alleged his jury had
been instructed on the natural and probable consequences
theory of aiding and abetting first degree murder, which we
found invalid in Chiu, and this error was not harmless beyond a
reasonable doubt. The trial court agreed with Lopez and
1
Subsequent statutory references are to the Penal Code.
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granted relief. The prosecution appealed, and the Court of
Appeal reversed. (In re Lopez (Sept. 25, 2019, A152748)
[nonpub. opn.].)
The Court of Appeal relied on our then-recent opinion in
People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat). Aledamat
discussed the standard of prejudice when a jury is instructed
with two theories of an offense, one of which is legally valid and
one of which is legally invalid, otherwise known as “alternative-
theory” error. (Id. at p. 9.) We held that “no higher standard of
review applies to alternative-theory error than applies to other
misdescriptions of the elements. The same beyond a reasonable
doubt standard applies to all such misdescriptions . . . .” (Ibid.)
“The reviewing court must reverse the conviction unless, after
examining the entire cause, including the evidence, and
considering all relevant circumstances, it determines the error
was harmless beyond a reasonable doubt.” (Id. at p. 13.)
The Court of Appeal held that the Chiu error here was
harmless beyond a reasonable doubt based on the gang-murder
special circumstance, which required the jury to find that an
aider and abettor acted with intent to kill, and the
“overwhelming” evidence against Lopez more generally. The
Court of Appeal discounted the prosecutor’s discussion of the
natural and probable consequences theory of first degree
murder in his closing argument, and it found a jury note
referencing that theory inconsequential under the
circumstances.
We granted review to discuss the import of Aledamat on
this record, including the jury’s true finding on the gang-murder
special circumstance and the potentially “overwhelming” nature
of the evidence against Lopez. We conclude the gang-murder
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special circumstance here does not necessarily render the Chiu
error harmless beyond a reasonable doubt. However, a
reviewing court may hold the error harmless where it would be
impossible, based on the evidence, for a jury to make the
findings reflected in its verdict without also making the findings
that would support a valid theory of liability. (Aledamat, supra,8 Cal.5th at p. 15.) Indications in the record that the jury may
have actually relied on an invalid theory, such as a prosecutor’s
closing argument or a jury note, do not preclude a finding of
harmlessness if this standard is satisfied.
These principles reflect our holding in Aledamat that “no
higher standard of review applies to alternative-theory error
than applies to other misdescriptions of the elements.”
(Aledamat, supra, 8 Cal.5th at p. 9.) Misdescriptions (or
omissions) of the elements will invariably involve indications
that the jury actually relied on an invalid theory, since the
invalid theory was the only theory provided to it. Nonetheless,
such errors may be found harmless if it would be impossible,
based on the evidence, for a jury to make the findings reflected
in its verdict without also finding the missing fact as well.
(People v. Merritt (2017) 2 Cal.5th 819, 832 (Merritt).)
The Court of Appeal was therefore incorrect to hold that
the gang-murder special circumstance, standing alone, showed
that the Chiu error was harmless beyond a reasonable doubt.
And, while “overwhelming” evidence may demonstrate
harmlessness, a court’s analysis of whether the evidence is
“overwhelming” in this context is not as subjective or free-
ranging as that term might imply. Instead, the analysis
requires a court to rigorously review the evidence to determine
whether any rational juror who found the defendant guilty
based on an invalid theory, and made the factual findings
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reflected in the jury’s verdict, would necessarily have found the
defendant guilty based on a valid theory as well. (Aledamat,
supra, 8 Cal.5th at p. 15.) Based on its short discussion, the
Court of Appeal does not appear to have fully appreciated the
proper standard for harmlessness in this context. We therefore
reverse the judgment of the Court of Appeal and remand for
reconsideration in light of the standards we describe in this
opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Trial Evidence
Sometime before midnight on June 26, 2002, Miguel and
Rebecca S. stopped their car on a bridge in Santa Rosa,
California because Miguel saw his father walking on the side of
the road. Miguel got out to speak with him, while Rebecca
remained in the car with their young children. A creek and
bicycle path ran underneath the bridge. Miguel saw the victim,
Gomez, riding his bicycle. Miguel knew Gomez was his father’s
friend, but he did not recognize Gomez at the time. Gomez said
hello to Miguel and his father, and they whistled back and forth.
Gomez turned, rode underneath the bridge, and continued along
the bicycle path. Gomez was wearing blue clothing indicative of
the Sureño criminal street gang. He was engaged to a Sureño
associate and knew their distinctive whistle.
Miguel and Rebecca noticed a group of young men jumping
over a fence that separated the creek from an apartment
complex. Four men, two of whom Rebecca identified as Higuera
and Ochoa-Gonzales, walked past. One of the unknown men
said “Norte” or asked if Miguel “bang[ed] Norte.” The man
showed Miguel what appeared to be a knife handle in his pants
pocket. Miguel responded, “I don’t bang nothing,” and the men
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kept walking. Miguel and Rebecca had been associated with the
Norteño criminal street gang in the past, but no longer.
Three of the men went down the path after Gomez, while
Ochoa-Gonzales hung back. A fifth man, apparently Amante,
came by afterward. He was with two young women. Miguel saw
Amante drop a knife, pick it up, and run toward Gomez. From
a distance, Miguel saw three men attacking Gomez. One man,
wearing a white shirt, had a knife and was making stabbing
motions. Miguel later identified that man as Amante.
After the attack, the group walked back past Miguel and
Rebecca. Miguel saw blood on two of the men. Both were
wearing white shirts, and one was Amante. Miguel later
clarified that Amante was wearing a red San Francisco 49ers
football jersey with a white tank top underneath; the blood was
on the tank top but not the jersey. Miguel and Rebecca drove
away and called police to report the attack.
Police officers responded, but they did not find anything at
the time. Gomez’s body was discovered the next morning, along
the bicycle path. His pants were pulled down, and there was
blood nearby. Police also found four pieces of a broken knife
blade at the scene.
An autopsy revealed that Gomez had suffered
approximately 40 to 44 sharp-force injuries, including 38 to
40 stab wounds. The majority of the stab wounds,
approximately 25 to 28, were inflicted on Gomez’s left flank.
These wounds perforated Gomez’s left lung, his diaphragm, and
his left kidney. One stab was so forceful that it broke one of
Gomez’s ribs. Gomez also had three stab wounds and four
incised wounds to his head, including a stab wound behind his
left ear, a slash across his left jaw, and a large incised wound to
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his scalp. Finally, Gomez had three stab wounds to his chest,
one of which pierced his heart and caused his death.
The two women in the group, Kacee Dragoman and
Lindsay Ortiz, testified at trial. Both were granted immunity,
and their accounts of the night’s events were largely consistent.
Dragoman had been in a relationship with Amante for several
years, and they had a child together. They lived in the
apartment complex near the creek. The backyard of their
apartment faced the creek itself. Ortiz lived in the same
apartment complex as Dragoman and Amante. Ortiz described
Dragoman as her best friend, and she loved Amante like a
brother. Ortiz had known Lopez for a couple years and did not
care for him. Dragoman had met Lopez only a few nights before
the attack.
On the night of the attack, the defendants here — Lopez,
Amante, Higuera, Cardenas, and Ochoa-Gonzales — were
drinking and socializing with Dragoman, Ortiz, and others in
the apartment shared by Amante and Dragoman. Lopez,
Amante, Higuera, Cardenas, and Ochoa-Gonzales were all
active participants in the Norteño criminal street gang.
Dragoman associated with the Norteño gang, and Ortiz was
friends with many Norteños. As described further below, the
Norteños were in a deadly rivalry with the Sureños. Amante
himself had been stabbed and severely wounded by Sureños
during a Cinco de Mayo celebration a couple months earlier.
During the party, Dragoman was outside on her patio with
several other people. They heard some whistling, and
Dragoman recognized it as a Sureño gang whistle. It was a “bad
sign,” according to Dragoman, because “[u]sually if they
whistled, more were coming. They’re hollering for more people
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to come out. They’re signaling.” Someone at the party said,
“ ‘It’s a Scrap whistle,’ ” and Ochoa-Gonzales yelled some
remarks over the fence. (“Scrap” is a derogatory term for
Sureño.) Dragoman recalled everyone getting “antsy” and
“mak[ing] each other excited.” The defendants ran into the
kitchen. Dragoman and Ortiz heard sounds like drawers
opening and closing.
The defendants ran outside. Dragoman and Ortiz
followed. The women came upon Amante, who had tried to climb
over the fence but got stuck. Amante appeared to be intoxicated.
Dragoman and Ortiz thought the situation was somewhat
humorous and helped him down. Amante kept walking toward
the creek, while Dragoman and Ortiz took a longer way around.
Dragoman and Ortiz saw Amante again on the bridge. He
was approaching several people who had stopped there,
presumably Miguel, Rebecca, and Miguel’s father. Ortiz said
Amante had a knife in his hand like he was going to stab
someone. Dragoman recalled that Amante dropped a large
butcher’s knife at that point, picked it up, and said something
rude to Miguel and his father. Dragoman recognized the
butcher’s knife as one from her kitchen. Ortiz thought that
Amante either dropped the knife or Dragoman took it from him.
Regardless, Amante continued along the path toward the creek.
Ortiz testified that Amante disappeared from view for
about five minutes. She initially saw Lopez, Cardenas, and
Ochoa-Gonzales coming back from the creek, without Amante
and Higuera. Lopez was wearing a white Raiders football jersey
with black lettering, and Ortiz noticed blood on the front of his
shirt. Amante and Higuera emerged afterward. Higuera had a
cut on his arm and appeared to be in pain.
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Dragoman recalled seeing Amante meet up with the other
defendants, then walk farther down the path with Higuera.
They were gone for about 15 or 30 seconds. She confirmed Lopez
was wearing a white Raiders jersey and Amante was wearing a
red 49ers jersey with a white shirt underneath. When
Dragoman saw Lopez, he was wearing a dark blue beanie that
he did not have before the attack.
The defendants, Dragoman, and Ortiz all walked back
over the bridge to the apartment complex. Lopez had a black
knife handle in his hand, which Dragoman recognized from a
knife set in her kitchen. After the group arrived back at the
apartment, Dragoman remembered that Lopez was “[v]ery
bouncy” and “[h]appy.” He had the blue beanie on his head and
“was kind of like bragging[,] like walking around with a little
strut, stuff like that.” Ortiz saw Lopez wearing the blue beanie
as well, which she remembered as having the word “Sur” on it.
Ortiz thought Lopez was “excited” and “pretty happy.” He said
“something about that guy dying” and told Amante that “this
was for Cinco de Mayo.” Amante responded, “ ‘What the fuck
are you talking about?’ ” Lopez said something in response, and
everyone got quiet.
Dragoman watched Ochoa-Gonzales flush a knife handle
(apparently the one Lopez was carrying) down the toilet.
Dragoman put the knife Amante was carrying back in a kitchen
drawer. Dragoman did not see anyone else with a knife that
night.
Dragoman asked Lopez and Ochoa-Gonzales to take their
clothes off so she could wash them. Ortiz helped. Dragoman
saw blood on Lopez’s shoes. Ortiz saw Ochoa-Gonzales pacing
back and forth. He looked scared. He kept saying there were
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“ ‘cops in the creek.’ ” At one point, Ochoa-Gonzales said, “ ‘I
don’t think that guy was a Scrap.’ ” Eventually, all of the
defendants except Amante left the apartment.
The next morning, Dragoman found the blue beanie in her
kitchen. She put it in a brown paper sack and threw it away in
a stranger’s garbage across town. Dragoman also noticed that
her knife set was no longer complete; several knives were
missing. All of the knives had markings and serial numbers
that would identify them as part of a set, so Dragoman and
Amante decided to get rid of the remaining knives. They drove
into the countryside and threw them away, along with the knife
block. Police were able to recover several of those knives, and
Dragoman identified them as part of her set. Dragoman
identified the broken knife blade found near Gomez’s body as
part of her set as well.
Dragoman and Ortiz initially lied to police about what
happened that night. A few months later, Dragoman started
speaking with the police again and disclosed additional details.
Ortiz eventually did as well, apparently at Amante’s request.
Dragoman, Ortiz, and Amante discussed what they remembered
about that night before Ortiz came forward. Ortiz also received
police reports (or summaries) from Dragoman about the case.
By the time of trial, neither Dragoman nor Ortiz had a
relationship with Amante.
According to a pathologist, it was difficult to tell with any
degree of certainty how many stabbing instruments were
involved in the attack. The knives police recovered from
Dragoman’s knife set (apparently steak knives) could have made
any of the wounds on Gomez’s body. Other knives of a similar
size could have made the wounds as well. The knife whose blade
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was found broken at the scene could have inflicted some of the
stab wounds, including two of the wounds to Gomez’s chest. In
the pathologist’s opinion, a single person could have inflicted all
of the wounds in less than a minute.
A criminalist tested the broken knife blade for traces of
blood. He obtained a presumptive positive result, but further
testing could not confirm the presence of blood. The criminalist
also examined the knife’s serrated edges. Based on his
experience, the criminalist would have expected to see more
blood, tissue, or other material in the serrated areas of the knife
if it had been used to stab a person.
A police gang expert also testified. He was familiar with
both Norteños and Sureños. In his opinion, the Norteños were
a criminal street gang under California law. (§ 186.22,
subd. (f).) They were a group of three or more people. They had
common signs or symbols, such as the number 14 and the color
red. They had as their primary activities various crimes such
as assault with a deadly weapon, robbery, attempted murder,
and murder. The Sureños were a criminal street gang as well.
They adopted the number 13 and the color blue. They often used
the term “Sur” for Sureño.
The Norteños claimed all of Northern California, and they
came into conflict with Sureños who moved into the region. The
expert described several murders and attempted murders
committed by Norteño gang members against Sureño gang
members in Sonoma County.
Sureños claimed various areas in Santa Rosa, and the
creek where Gomez was killed was disputed territory. The
expert explained, “At the time this crime occurred . . . Sureños
had pretty much claimed that area just north of there as theirs.
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Quite a few Norteño gang members were living just south of that
area, also living east and west of there and using that path to go
to and from places.” Both gangs had painted graffiti in the creek
and crossed out graffiti painted by their rival. These “crossouts”
are a sign of serious disrespect to a rival gang.
A common Norteño graffiti mark is “SK” or “ ‘Scrap killa.’ ”
Sureño graffiti includes, “ ‘We Chap killas,’ ” with “ ‘Chap’ ”
being a derogatory term for Norteños. Along the same road that
spanned the creek here, Sureño graffiti mourned the death of a
Sureño gang member killed by a Norteño. Nearby, someone had
written, “ ‘Fuck Whacky Die Slow.’ ” “ ‘Whacky’ ” was Amante’s
gang moniker. The expert explained, “This is very significant to
me in that it shows that Sureño gang members know
Mr. Amante as a rival gang member, that they’re well aware he
was assaulted and seriously injured, and that they want him to
die slowly. He is an enemy, and they want him to suffer.”
The expert explained each defendant’s relationship to the
Norteños. He opined that each defendant was an active
participant in the Norteño criminal street gang. For Lopez, the
expert showed photos with Lopez together with other Norteño
gang members displaying gang symbols and writing. Lopez had
a facial tattoo of one dot and four dots, for the number 14, which
showed his affiliation with the Norteño gang. Lopez had
Norteño tattoos on his hands as well, though he may have
removed one. Lopez admitted to police officers that he was a
Norteño gang member and wore clothing associated with the
Norteño gang.
The prosecutor presented the expert with a hypothetical
mirroring the facts of the prosecution’s case and asked whether
such a murder would have been committed for the benefit of or
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in association with a criminal street gang. The expert responded
that it would, based on the clothing worn by the victim, which
was consistent with clothing worn by Sureño gang members or
affiliates; the act of defendants arming themselves together; the
confrontation with Miguel where he was asked if he “bang[ed]
Norte”; and the brutal nature of the stabbing. Such a murder
would benefit the gang because it shows the gang’s power, which
it can use to recruit new members, compete with its rivals, and
intimidate the public. The participation of gang members in
such a violent attack would also enhance their individual
standing in the gang. Indeed, according to the expert, “the gang
members are expected to participate [in such an assault] if they
are in the area of that assault. To not participate could in fact
cause retribution to be brought upon them.”
In testimony to be considered against Lopez only, a jail
inmate named Richard Smith recounted an argument with
Lopez while they were both incarcerated. During the
confrontation, Lopez turned to Smith and said, “ ‘I’ll kill you just
like I killed the guy in the creek.’ ” Smith had several previous
felony convictions. He was a longtime heroin addict and was
taking methadone. On cross-examination, Lopez’s counsel
introduced various letters Smith had written to the prosecutor
requesting favors. Smith said he hoped his testimony would
help him at sentencing in a pending criminal case, although the
prosecution had not promised anything.
B. Closing Arguments
In his closing argument, the prosecutor did not expressly
name the person or persons who stabbed Gomez. He explained,
“In this case, there is no burden on the People to establish who
the actual stabber was . . . . Simply that there was a stabber
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and that the defendants here on trial were either that stabber
or an aider and abettor in the crime of that stabber.” The
prosecutor discounted the possibility that either the broken
knife found at the scene or the large butcher knife Amante
carried were the murder weapon. Both knives were too large
and, as to the broken knife, it did not have the expected amount
of blood on its blade. The prosecutor suggested that the wounds
were entirely consistent with the smaller steak knives from
Dragoman’s knife set. He argued that at least one other
defendant must have had a knife and used it against Gomez.
Given this uncertainty, the prosecutor focused on two theories
of aiding and abetting, either directly or under the doctrine of
natural and probable consequences. He explained each theory
to the jury.
Regarding Lopez specifically, the prosecutor noted that he
was wearing a white Raiders jersey, so he could have been the
stabber Miguel identified. He also had blood on his shirt,
according to Ortiz, and on his shoes, according to Dragoman.
The prosecutor argued that Lopez personally wielded the knife
that was found broken, “because there’s no other evidence of
another broken knife out at the scene or anywhere else.” It must
have broken against a rock or the asphalt path, and “[t]hat tells
you that [Lopez] was there and he was actively participating in
the attack on [Gomez]. Whether or not that knife pierced
[Gomez’s] body makes no difference.” The prosecutor argued
that Lopez had an added incentive to kill someone he believed
to be a Sureño, since he was from an out-of-town subset of the
Norteños. It was an enormous success for him to kill a Sureño,
and his attitude afterward reflected that.
The prosecutor said it was possible Lopez personally
stabbed Gomez, but it was not probable given the size of the
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broken knife and the absence of any substantial amount of
blood. So, according to the prosecutor, Lopez was a direct aider
and abettor to murder: “He knew of the unlawful purpose of the
person right there with him. Maybe it was the person who
pantsed [Gomez]. Maybe it was the person who stabbed [Gomez]
in the head splitting his skin to his skull or driving the knife
into his chest. But he was there. He was right there. And he
shattered his knife during the attack. Absolutely had
knowledge. Intended to commit or encourage or facilitate the
crime? Beyond any question. By act or advice did he aid,
promote, encourage or instigate its commission? Of course he
did. Whether or not he’s the actual stabber.”
The prosecutor also touched on the natural and probable
consequences doctrine: “And finally, nonhomicide target crimes.
Even if you think that he was down there just trying to stab a
Scrap, maybe. Maybe, despite all the evidence, he just wanted
to really seriously wound the guy. It doesn’t matter. He aided
and abetted in that serious attack someone that was right there
with him. Murdered [Gomez]. And of course under these
circumstances, that was inevitable. [¶] So whether he is an
actual stabber or not, whether he aided and abetted with the
intent to kill or not, he’s guilty of murder as a natural and
probable consequence of his act.” But the prosecutor did not
believe the jury needed to reach that theory: “I would submit to
you that he is either an actual stabber, which is possible, or he’s
an aider and abettor to murder, period. You don’t even need to
get to this theory as to Rico Lopez.”
Lopez’s counsel criticized the prosecutor’s reliance on
three alternate theories. He repeatedly attacked the credibility
of Smith, the inmate who testified to Lopez’s admission. He
noted that the prosecutor seemed almost to concede that the
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knife Lopez was carrying was not used to stab anyone, so Lopez’s
alleged admission to Smith was inconsistent with the evidence.
Lopez’s counsel attacked the prosecution’s arguments as
speculative, and he argued the prosecution’s witnesses lacked
credibility. He contended that Ortiz and Dragoman were
accomplices to murder, and their testimony was insufficiently
corroborated. He criticized Miguel for testifying to an attack
that was far away, at night, without any lighting.
Lopez’s counsel emphasized that the defendants were all
drinking, and Amante was drunk, so no one could have formed
the specific intent necessary to commit first degree murder or
otherwise intend to kill. He argued there was no evidence of
premeditation and deliberation since the defendants did not
know who they would encounter down by the creek. While the
evidence of multiple stab wounds could indicate premeditation
and deliberation, it could also be “a berserk rage” with no
“thought process going through except blinding rage, for one
reason or another, which might be alcohol induced.”
In his rebuttal argument, the prosecutor denied that
Dragoman and Ortiz were accomplices and posited that even if
they were, their testimony was amply corroborated by other
evidence. He asserted that the prosecution’s witnesses were
credible, persuasive, and largely consistent. He disagreed that
any of the defendants were so intoxicated that they could not
intend to kill or premeditate and deliberate a killing, especially
in light of the circumstances of the attack and the number of
wounds inflicted on the victim. The prosecutor also noted that,
under the natural and probable consequences doctrine, a
defendant did not have to have the intent to kill to be found
guilty of murder. He denied that the two theories of aiding and
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abetting were somehow fallback positions. They were, instead,
“the law of the State of California.”
C. Jury Instructions
The trial court instructed the jury that a principal in a
crime includes both a person “who directly and actively
commit[s] the act constituting the crime” and a person “who
aid[s] and abet[s] the commission of the crime.” (See CALJIC
No. 3.00.) The court described direct aiding and abetting as
follows: “A person aids and abets the commission of a crime
when he or she: [¶] . . . [w]ith knowledge of the unlawful
purpose of the perpetrator, and [¶] . . . [w]ith the intent or
purpose of committing or encouraging or facilitating the
commission of the crime, and [¶] . . . [b]y act or advice aids,
promotes, encourages or instigates the commission of the crime.”
(See CALJIC No. 3.01.) The court went on to explain the
doctrine of natural and probable consequences, as it was
understood at the time: “One who aids and abets another in the
commission of a crime or crimes is not only guilty of those
crimes, but is also guilty of any other crime committed by a
principal which is a natural and probable consequence of the
crimes originally aided and abetted.” (See CALJIC No. 3.02.)
The elements were (1) the commission of a target crime, here
breach of the peace, an assault, a battery, an assault with a
deadly weapon, or an assault by force likely to produce great
bodily injury; (2) “[t]he defendant aided and abetted one of those
crimes”; (3) “[a] co-principal in that crime committed the crime
of murder”; and (4) “[t]he crime of murder was a natural and
probable consequence of the commission” of the target crime.
(Ibid.) The court instructed the jury on the elements of the
target crimes, as well as first degree murder, second degree
murder, and manslaughter.
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For the gang-murder special circumstance, the court
instructed the jury in relevant part as follows: “The People have
the burden of proving the truth of a special circumstance. If you
have a reasonable doubt as to whether a special circumstance is
true, you must find it to be not true. [¶] If you find that a
defendant was not the actual killer of a human being, or if you
are unable to decide whether the defendant was the actual killer
or an aider and abettor, you cannot find the special circumstance
to be true as to that defendant unless you are satisfied beyond a
reasonable doubt that such defendant with the intent to kill
aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted any actor in the commission of the murder
in the first degree. [¶] You must decide separately as to each of
the defendants the existence or nonexistence of each special
circumstance alleged in this case.” (See CALJIC No. 8.80.1.)
The court continued, “To find that the special circumstance
‘intentional killing by an active street gang member’ is true, it
must be proved: [¶] 1. The defendant intentionally killed the
victim; [¶] 2. At the time of the killing, the defendant was an
active participant in a criminal street gang; [¶] 3. The members
of that gang engaged in or have engaged in a pattern of criminal
gang activity; [¶] 4. The defendant knew that the gang members
engaged in or have engaged in a pattern of criminal gang
activity; and [¶] 5. The murder was carried out to further the
activities of the criminal street gang.” (See CALJIC
No. 8.81.22.)
D. Jury Deliberations and Verdict
The jury deliberated for approximately four and a half
days before reaching a verdict. During deliberations, the jury
requested that Miguel’s testimony be read back. It also asked
two legal questions. First, the jury requested instructions for
17
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Opinion of the Court by Guerrero, C. J.
the criminal street gang sentencing enhancement. The court
directed the jury to the appropriate instruction, which it had
already provided. Second, the jury asked for clarification on
premeditation and deliberation in the context of the natural and
probable consequences doctrine. Its note stated, “We are having
difficulties with the sentence[,] ‘To constitute a deliberate and
premeditated killing, the slayer must weigh and consider the
question of killing and the reasons for and against such a choice
and, having in mind the consequences, he decides to and does
kill,’ versus deliberated and premeditated breach of peace or
assault that results in a killing. [¶] We need more clarification
of premeditation and deliberation [CALJIC No. 8.20] and how to
relate it to [CALJIC No. 3.02, regarding natural and probable
consequences].” After a lengthy discussion with counsel, the
court provided the following response: “The term ‘deliberate and
premeditate[d]’ refers only to First Degree Murder. First
Degree Murder is defined by jury instruction 8.20. [¶] The term
‘deliberate and premeditate[d]’ is not an element of any of the
following: Breach of the Peace, Assault, Battery, Assault by
Means of Force [L]ikely to Produce Great Bodily Injury, or
Assault with a Deadly Weapon. Those crimes are defined
elsewhere in the Court’s instructions[.] [¶] . . . [¶] Jury
instruction 3.02 may refer to First Degree Murder, Second
Degree Murder or Voluntary Manslaughter, depending upon
what you determine the facts to be. Those crimes are defined
elsewhere in the court’s instructions.”
The jury returned verdicts against each defendant, as
described above. The court sentenced Lopez to life
imprisonment without the possibility of parole, and the
judgment was affirmed on direct appeal.
18
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Opinion of the Court by Guerrero, C. J.
E. Writ Proceedings
As noted, following our opinion in Chiu, Lopez filed a
petition for writ of habeas corpus alleging that the jury was
improperly instructed on the natural and probable consequences
theory of aiding and abetting first degree murder. In her return,
the district attorney argued that any error was harmless
because the jury did not rely on the doctrine of natural and
probable consequences in reaching its verdict. The district
attorney pointed to the prosecution’s closing argument as to
Lopez, which did not emphasize the natural and probable
consequences doctrine, and the jury’s gang-murder special-
circumstance finding, which showed the jury believed Lopez
intended to kill.
After hearing argument, the trial court granted relief. It
believed that the Chiu error was not harmless beyond a
reasonable doubt. The court found persuasive the jury’s note
regarding the natural and probable consequences instruction.
In the court’s view, it showed the natural and probable
consequences doctrine “was on the jury’s mind shortly before it
rendered its verdict, and . . . the jury was potentially grappling
with its applicability as to all defendants.” The court believed
that the evidence at trial was consistent with liability under the
natural and probable consequences doctrine. It therefore
vacated Lopez’s first degree murder conviction.
The prosecution appealed. While the appeal was pending,
we decided Aledamat, supra, 8 Cal.5th 1, which addressed the
harmlessness standard for alternative-theory error, where the
jury was instructed with valid and invalid theories of liability.
Relying on Aledamat, the Court of Appeal concluded that the
error here was harmless beyond a reasonable doubt. The Court
19
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Opinion of the Court by Guerrero, C. J.
of Appeal highlighted the jury’s gang-murder special-
circumstance finding. It explained, “A true finding as to this
circumstance required proof beyond a reasonable doubt that
Lopez acted with an intent to kill, as opposed to the intent to
commit one of the target crimes.” The Court of Appeal further
held that the jury’s note regarding natural and probable
consequences was not tied to Lopez, so its import was unclear,
and the evidence against Lopez was “overwhelming.” We
granted review.
II. DISCUSSION
A. Valid and Invalid Theories
“There are two distinct forms of culpability for aiders and
abettors. ‘First, an aider and abettor with the necessary mental
state is guilty of the intended crime. Second, under the natural
and probable consequences doctrine, an aider and abettor is
guilty not only of the intended crime, but also “for any other
offense that was a ‘natural and probable consequence’ of the
crime aided and abetted.” ’ ” (Chiu, supra, 59 Cal.4th at p. 158.)
Chiu eliminated the latter form of aiding and abetting for first
degree premeditated murder: “[A]n aider and abettor may not
be convicted of first degree premeditated murder under the
natural and probable consequences doctrine. Rather, his or her
liability for that crime must be based on direct aiding and
abetting principles.” (Id. at pp. 158–159, italics omitted.) Chiu
is retroactive and may be raised, as here, in a petition for writ
20
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Opinion of the Court by Guerrero, C. J.
of habeas corpus. (In re Martinez (2017) 3 Cal.5th 1216, 1222
(Martinez).)2
Applying Chiu, the parties agree the trial court erred by
instructing the jury that it could find Lopez guilty of first degree
murder based on the theory of natural and probable
consequences. They likewise agree (or at least do not contest)
that the trial court properly instructed the jury that it could find
Lopez guilty of first degree murder as a direct aider and abettor
or as the actual perpetrator of the first degree murder.
For a defendant to be liable as a direct aider and abettor,
“the prosecution must show that the defendant aided or
encouraged the commission of the murder with knowledge of the
unlawful purpose of the perpetrator and with the intent or
purpose of committing, encouraging, or facilitating its
commission. [Citation.] Because the mental state component —
consisting of intent and knowledge — extends to the entire
crime, it preserves the distinction between assisting the
predicate crime of second degree murder and assisting the
greater offense of first degree premeditated murder. [Citations.]
An aider and abettor who knowingly and intentionally assists a
confederate to kill someone could be found to have acted
willfully, deliberately, and with premeditation, having formed
his own culpable intent. Such an aider and abettor, then, acts
with the mens rea required for first degree murder.” (Chiu,
supra, 59 Cal.4th at p. 167.)
2
As we explained in People v. Gentile (2020) 10 Cal.5th 830,
843, 849, the Legislature later eliminated liability for second
degree murder under the natural and probable consequences
doctrine as well. (See Stats. 2018, ch. 1015, § 2.)
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Opinion of the Court by Guerrero, C. J.
For a defendant to be liable as an actual perpetrator, the
prosecution must prove that the defendant unlawfully killed a
human being, or a fetus, with malice aforethought. (§ 187,
subd. (a).) “If the murder is ‘willful, deliberate, and
premeditated,’ it is first degree murder. [Citation.] ‘ “ ‘In this
context, “premeditated” means “considered beforehand,” and
“deliberate” means “formed or arrived at or determined upon as
a result of careful thought and weighing of considerations for
and against the proposed course of action.” ’ ” [Citation.] “ ‘An
intentional killing is premeditated and deliberate if it occurred
as the result of preexisting thought and reflection rather than
unconsidered or rash impulse.’ ” [Citations.] “The true test is
not the duration of time as much as it is the extent of the
reflection. Thoughts may follow each other with great rapidity
and cold, calculated judgment may be arrived at quickly.” ’ ”
(People v. Morales (2020) 10 Cal.5th 76, 88.)
B. Standard of Prejudice
Where a jury is instructed on alternate theories of
liability, one legally valid and one legally invalid, a federal
constitutional error has occurred. The defendant has been
deprived of his or her right to “a jury properly instructed in the
relevant law.” (Martinez, supra, 3 Cal.5th at p. 1224;
see U.S. Const., 6th & 14th Amends.) The error therefore
requires reversal unless we determine the error was harmless
beyond a reasonable doubt. (Aledamat, supra, 8 Cal.5th at p. 9,
citing Chapman v. California (1967) 386 U.S. 18, 24
(Chapman).)
In Aledamat, we explored the meaning of the harmless
beyond a reasonable doubt standard in this circumstance
involving alternative theories of liability. We noted that “[t]his
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Opinion of the Court by Guerrero, C. J.
harmless error rule applies in a variety of contexts, such
as . . . error in omitting entirely one or more elements of a
charged offense.” (Aledamat, supra, 8 Cal.5th at p. 9.) We held
that the application of this standard for alternative-theory error
should be consistent with, and not different from, the
application of the same standard for other misdescriptions of the
charged offense. (Ibid.) Specifically, we rejected the argument
that alternative-theory error could be found harmless only
where “there is a basis in the record to find that ‘the jury has
“actually” relied upon the valid theory.’ ” (Ibid.) Instead, a
reviewing court may “examine[] what the jury necessarily did
find and ask[] whether it would be impossible, on the evidence,
for the jury to find that without also finding the missing fact as
well.” (Id. at p. 15.) In other words, if “ ‘[n]o reasonable jury’ ”
would have found in favor of the defendant on the missing fact,
given the jury’s actual verdict and the state of the evidence, the
error may be found harmless beyond a reasonable doubt. (Ibid.)
For that last point, Aledamat quoted our earlier opinion in
Merritt, supra, 2 Cal.5th at page 832, which considered a
relatively more straightforward instructional error involving
the omission of one or more elements of the offense. Merritt, in
turn, relied on the United States Supreme Court’s discussion of
a similar error in Neder v. United States (1999) 527 U.S. 1(Neder). (Merritt, at pp. 825–826.) Merritt quoted Neder’s
distillation of the applicable test as follows: “ ‘Is it clear beyond
a reasonable doubt that a rational jury would have found the
defendant guilty absent the error?’ ” (Id. at p. 827, quoting
Neder, at p. 18.) This test is “essentially the same” as the test
to be applied when other federal constitutional errors have
occurred. (Neder, at p. 18.) It applies here as well. (Aledamat,
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Opinion of the Court by Guerrero, C. J.
supra, 8 Cal.5th at pp. 11–12; accord, Hedgpeth v. Pulido (2008)
555 U.S. 57, 61 (Hedgpeth).)
This test is exacting, and it requires much of a reviewing
court. “[S]afeguarding the jury guarantee will often require that
a reviewing court conduct a thorough examination of the record.
If, at the end of that examination, the court cannot conclude
beyond a reasonable doubt that the jury verdict would have been
the same absent the error — for example, where the defendant
contested the omitted element and raised evidence sufficient to
support a contrary finding — it should not find the error
harmless.” (Neder, supra, 527 U.S. at p. 19.) “A reviewing court
making this harmless-error inquiry does not, as Justice Traynor
put it, ‘become in effect a second jury to determine whether the
defendant is guilty.’ [(Traynor, The Riddle of Harmless Error
(1970) p. 21.)] Rather a court, in typical appellate-court fashion,
asks whether the record contains evidence that could rationally
lead to a contrary finding with respect to the omitted element.
If the answer to that question is ‘no,’ holding the error harmless
does not ‘reflect a denigration of the constitutional rights
involved.’ [Citation.] On the contrary, it ‘serves a very useful
purpose insofar as [it] blocks setting aside convictions for small
errors or defects that have little, if any, likelihood of having
changed the result of the trial.’ ” (Ibid.)
Although Aledamat seemingly settled the issue, Lopez
contests the relevance of Neder and Merritt to the alternative-
theory error here. Relying largely on California authorities that
predate Aledamat, and federal authorities that predate Neder,
Lopez proposes a multistep “protocol” for a reviewing court
considering whether an alternative-theory error is harmless
beyond a reasonable doubt. Under the proposed protocol, if a
jury’s verdicts do not themselves show that the jury necessarily
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In re LOPEZ
Opinion of the Court by Guerrero, C. J.
relied on a valid theory in convicting a defendant, a reviewing
court “should then proceed to consider the entire cause, but it
should consider first those aspects of the record that most clearly
indicate the basis on which the jury actually rested its verdict.”
If there are indications the jury considered the invalid theory,
either because the prosecutor relied on the invalid theory during
argument or because the jury referenced the invalid theory
during deliberations, then reversal is required regardless of any
other circumstances.
Lopez’s proposed protocol contradicts the central holding
of Aledamat, which was “that no higher standard of review
applies to alternative-theory error than applies to other
misdescriptions of the elements.” (Aledamat, supra, 8 Cal.5th
at p. 9; accord, Hedgpeth, supra, 555 U.S. at p. 61.) In cases
where the instructional error at issue is a misdescription or
omission of elements with no alternative theory presented, the
prosecutor argued and the jury necessarily considered the
invalid theory because it was the only one presented. Indeed, in
such cases we can be sure the jury actually relied on the invalid
theory, again because it was the only one presented to it. But
this circumstance does not categorically bar a reviewing court
from finding the error harmless where any rational jury would
have found the defendant guilty notwithstanding the error.
(Neder, supra, 527 U.S. at p. 18; Merritt, supra, 2 Cal.5th at
p. 827.) Similarly, here, the fact that the prosecutor argued, or
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Opinion of the Court by Guerrero, C. J.
the jury considered, an invalid alternate theory is not dispositive
when conducting a harmless error analysis on appeal.3
3
While the prosecutor will nearly always argue the invalid
theory in misdescription or omission cases, since closing
argument normally tracks the court’s jury instructions, it is true
the jury does not always provide an indication of the content of
its deliberations. But, in at least one prior case, we confirmed
that the Neder standard applies notwithstanding the jury’s
expression of interest in the invalid theory. (People v. Gonzalez
(2012) 54 Cal.4th 643, 665 (Gonzalez).) We rejected the
defendant’s argument that, in light of a jury note, the test under
Neder was inapplicable and a reviewing court should consider
“whether circumstances make it clear beyond a reasonable
doubt that this jury” relied on a valid theory rather than an
invalid one. (Gonzalez, at p. 665.) We likewise rejected the
defendant’s argument that, under Neder, we should examine the
evidence in a vacuum, without regard for the findings the jury
necessarily made in its verdicts. (Gonzalez, at p. 665.) Instead,
we explained, “the Neder court concluded a demonstration of
harmless error does not require proof that a particular jury
‘actually rested its verdict on the proper ground [citation], but
rather on proof beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error
[citation]. Although the former can be proof of the latter
[citation], the Neder majority made clear that such a
determination is not essential to a finding of harmlessness
[citation], which instead “will often require that a reviewing
court conduct a thorough examination of the record.” ’ ” (Id. at
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In re LOPEZ
Opinion of the Court by Guerrero, C. J.
There are sound reasons for performing the same type of
harmless error analysis in cases involving an alternative-theory
error. In Aledamat, we recognized that “ ‘drawing a distinction
between alternative-theory error and the instructional errors in
[several cases including Neder] would be “patently illogical,”
given that such a distinction “ ‘reduces to the strange claim that,
because the jury . . . received both a “good” charge and a “bad”
charge on the issue, the error was somehow more pernicious
than . . . where the only charge on the critical issue was a
mistaken one.’ ” ’ ” (Aledamat, supra, 8 Cal.5th at p. 11, quoting
Hedgpeth, supra, 555 U.S. at p. 61.) Yet Lopez’s proposed
protocol would make such an illogical distinction. We therefore
reject it. “Providing the jury with both a valid and an invalid
theory should not be subject to a higher standard of review than
applies when the court provides the jury only with an invalid
theory.” (Aledamat, at pp. 11–12.)
Lopez notes that our earlier decisions have referenced
circumstances such as a prosecutor’s argument or a jury’s note
during deliberations as one factor supporting our conclusion
that an alternative-theory error was not harmless. (See, e.g.,
p. 666.) Thus, given the jury’s finding that the defendant had
intent to kill, we concluded based on the evidence that “no
rational juror could find that [the defendant] intended to murder
[the victim] but did not personally act with premeditation and
deliberation.” (Ibid.) The “absence of an instruction on this
point was harmless” because “the evidence shows beyond a
reasonable doubt that a rational jury would have found that [the
defendant] personally premeditated and deliberated the
attempted murder of [the victim].” (Id. at p. 667.)
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In re LOPEZ
Opinion of the Court by Guerrero, C. J.
Martinez, supra, 3 Cal.5th at pp. 1226–1227; Chiu, supra,59 Cal.4th at pp. 167–168.) But, as we explained in Aledamat,
these decisions do not reflect a higher or different standard of
review. “In both Chiu and Martinez, we examined the record
and found that it affirmatively showed the jury might have
based its verdict on the invalid theory. Because no other basis
to find the error harmless beyond a reasonable doubt was at
issue, we did not explore whether other ways of finding the error
harmless existed. Those cases merely provide one way in which
a court might evaluate harmlessness. They do not preclude
other ways.” (Aledamat, supra, 8 Cal.5th at p. 13, italics added.)
Chiu and Martinez did not consider the role of the prosecutor’s
argument or a jury note if the standard for harmlessness under
Neder and Merritt (and later Aledamat) had been met.4
Lopez relies on Sullivan v. Louisiana (1993) 508 U.S. 275,
which considered whether a defective jury instruction on
reasonable doubt was subject to harmless error review. In this
context, Sullivan explained, “Harmless-error review looks, we
have said, to the basis on which ‘the jury actually rested its
verdict.’ [Citation.] The inquiry, in other words, is not whether,
in a trial that occurred without the error, a guilty verdict would
surely have been rendered, but whether the guilty verdict
actually rendered in this trial was surely unattributable to the
error. That must be so, because to hypothesize a guilty verdict
that was never in fact rendered — no matter how inescapable
4
For the same reasons, Lopez’s reliance on lower court
opinions such as In re Loza (2018) 27 Cal.App.5th 797 and
People v. Brown (2016) 247 Cal.App.4th 211 is misplaced. These
opinions also do not consider the role of a prosecutor’s argument
or a jury note if the standard for harmless error discussed in the
text had been met.
28
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Opinion of the Court by Guerrero, C. J.
the findings to support that verdict might be — would violate
the jury-trial guarantee.” (Id. at p. 279.) Because Sullivan did
not believe that a jury verdict rendered with a defective
reasonable doubt instruction was “a jury verdict within the
meaning of the Sixth Amendment, the entire premise of
Chapman review is simply absent.” (Id. at p. 280.)
Neder, however, sharply limited the application of
Sullivan’s broad language. It acknowledged that “this strand of
the reasoning in Sullivan does provide support” for the idea that
harmless error cannot apply to omitted element errors. (Neder,
supra, 527 U.S. at p. 11.) But it held that this reasoning “cannot
be squared with our harmless-error cases.” (Ibid.) Instead, “the
absence of a ‘complete verdict’ on every element of the offense
establishes no more than that an improper instruction on an
element of the offense violates the Sixth Amendment’s jury trial
guarantee.” (Id. at p. 12.) Neder went on to explain that such
an error, like other federal constitutional errors, may be held
harmless where it is “clear beyond a reasonable doubt that a
rational jury would have found the defendant guilty absent the
error.” (Id. at p. 18.) And, as explained above, we made clear in
Aledamat that the relevant inquiry is not whether the jury’s
verdict actually rested on a valid theory, but whether any
rational jury would surely have rendered the same verdict had
it been properly instructed. (Aledamat, supra, 8 Cal.5th at
p. 9.)5
5
Justice Scalia, who authored Sullivan, dissented in Neder.
(Neder, supra, 527 U.S. at p. 30 (dis. opn. of Scalia, J.).) His
dissent explained his more limited view of harmless error in the
omitted-element scenario: “The failure of the court to instruct
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Opinion of the Court by Guerrero, C. J.
Lopez also relies on the more recent Court of Appeal
opinion in People v. Thompkins (2020) 50 Cal.App.5th 365,
which considered the standard of prejudice for alternative-
theory error in light of Aledamat. The discussion in Thompkins
reflects the complexity of this area of law. (Id. at pp. 398–401.)
We need not examine this discussion in detail, except to note
that Thompkins was incorrect to elevate Sullivan over more
recent discussions of harmless error in Neder, Hedgpeth, and
Merritt. (Thompkins, at pp. 400–401.) We disapprove
Thompkins to the extent it is inconsistent with our description
of the standard of prejudice in this opinion.
In sum, as we held in Aledamat, no higher standard
applies to alternative-theory errors than applies to other
misdescriptions or omissions of the elements of an offense.
(Aledamat, supra, 8 Cal.5th at p. 9.) A reviewing court must
the jury properly — whether by omitting an element of the
offense or by so misdescribing it that it is effectively removed
from the jury’s consideration — can be harmless, if the elements
of guilt that the jury did find necessarily embraced the one
omitted or misdescribed. This was clearly spelled out by our
unanimous opinion in Sullivan . . . , which said that harmless-
error review ‘looks . . . to the basis on which “the jury actually
rested its verdict.” ’ [Citation.] Where the facts necessarily
found by the jury (and not those merely discerned by the
appellate court) support the existence of the element omitted or
misdescribed in the instruction, the omission or misdescription
is harmless. For there is then no ‘gap’ in the verdict to be filled
by the fact finding of judges.” (Id. at pp. 35–36 (dis. opn. of
Scalia, J.), fn. omitted.) The dissent complained that the
majority was “casting Sullivan aside” by failing to follow its
reasoning. (Id. at p. 36 (dis. opn. of Scalia, J.).) Justice Scalia’s
view of harmless error is analogous to the protocol proposed by
Lopez, and it was not adopted by the majority. Subsequent
cases, as discussed, have further repudiated it.
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Opinion of the Court by Guerrero, C. J.
determine whether any rational jury would have found the
defendant guilty based on a valid theory if the jury had been
properly instructed. “The reviewing court examines what the
jury necessarily did find and asks whether it would be
impossible, on the evidence, for the jury to find that without also
finding the missing fact as well.” (Id. at p. 15.) In other words,
if “ ‘[n]o reasonable jury that made all of these findings could
have failed to find’ ” the facts necessary to support a valid
theory, the alternative-theory error was harmless. (Ibid.)
C. Harmlessness Beyond a Reasonable Doubt
The Attorney General bears the burden of showing that
the error was harmless beyond a reasonable doubt. (Chapman,
supra, 386 U.S. at p. 24; Martinez, supra, 3 Cal.5th at p. 1227.)
He argues that the jury’s verdicts, combined with the evidence
at trial, leave no reasonable doubt a rational jury would have
convicted Lopez of first degree murder based on a valid theory if
it had been properly instructed.
The valid theory of direct aiding and abetting required the
jury to find “that the defendant aided or encouraged the
commission of the murder with knowledge of the unlawful
purpose of the perpetrator and with the intent or purpose of
committing, encouraging, or facilitating its commission.” (Chiu,
supra, 59 Cal.4th at p. 167.) “ ‘When the offense charged is a
specific intent crime, the accomplice must “share the specific
intent of the perpetrator”; this occurs when the accomplice
“knows the full extent of the perpetrator’s criminal purpose and
gives aid or encouragement with the intent or purpose of
facilitating the perpetrator’s commission of the crime.”
[Citation.]’ [Citation.] What this means here, when the charged
offense and the intended offense — murder or attempted
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Opinion of the Court by Guerrero, C. J.
murder — are the same, i.e., when guilt does not depend on the
natural and probable consequences doctrine, is that the aider
and abettor must know and share the murderous intent of the
actual perpetrator.” (People v. McCoy (2001) 25 Cal.4th 1111,
1118 (McCoy), fn. omitted.) “An aider and abettor who
knowingly and intentionally assists a confederate to kill
someone could be found to have acted willfully, deliberately, and
with premeditation, having formed his own culpable intent.
Such an aider and abettor, then, acts with the mens rea required
for first degree murder.” (Chiu, at p. 167.)6
The Court of Appeal below first held that the jury’s
verdict, standing alone, shows that the jury made the findings
necessary for first degree murder. It has long been established
that an alternative-theory error is harmless beyond a
reasonable doubt where “ ‘it is possible to determine from other
portions of the verdict that the jury necessarily found the
defendant guilty on a proper theory.’ ” (Aledamat, supra,
8 Cal.5th at p. 8.)
The Court of Appeal noted that the jury did not merely
find Lopez guilty of first degree murder. The jury also found
true the gang-murder special circumstance. (§ 190.2,
subd. (a)(22).) Under the trial court’s jury instructions
6
Because a direct aider and abettor’s guilt “is determined
by the combined acts of all the participants as well as that
person’s own mens rea” (McCoy, supra, 25 Cal.4th at p. 1122), it
is possible for the aider and abettor to be guilty of a more serious
offense than the direct perpetrator. “If that person’s mens rea
is more culpable than another’s, that person’s guilt may be
greater even if the other might be deemed the actual
perpetrator.” (Ibid.) The parties do not rely on this principle
here, so we need not consider it further.
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Opinion of the Court by Guerrero, C. J.
(see CALJIC No. 8.80.1), this true finding shows that the jury
determined beyond a reasonable doubt that Lopez either
(1) “intentionally killed the victim” or (2) “with the intent to kill
aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted any actor in the commission of the murder
in the first degree.”
The Court of Appeal focused on the latter alternative, and
it does appear far more likely the jury believed Lopez was an
aider and abettor rather than an actual killer. The only direct
evidence of the identity of the stabber came from Miguel, who
identified Amante. Miguel also said the stabber was wearing a
white shirt, which could include Lopez because he was wearing
a white Raiders jersey, but Miguel did not identify Lopez
specifically. The prosecutor argued that Lopez could have
stabbed Gomez, but he described this possibility as unlikely
because the knife Lopez carried was too large to make most of
Gomez’s wounds and the broken knife blade found at the scene
did not have any confirmed blood or other tissue that would
indicate the blade was used for stabbing. The prosecutor
therefore contended Lopez was “an aider and abettor to
murder.” Likewise, in his own briefing, Lopez argues that “this
scenario [that he was an actual killer] is undermined by the
record, as the prosecutor felt compelled by the weakness of the
evidence to argue explicitly to the jury that [Lopez] was an aider
and abettor to murder rather than an ‘actual stabber.’ ”
In any event, we need not decide whether the jury could
have found that Lopez was an actual killer. Even assuming the
jury found the gang-murder special circumstance true based on
its belief that Lopez “intentionally killed the victim,” the
Attorney General concedes the special circumstance does not
itself establish the elements of first degree premeditated murder
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Opinion of the Court by Guerrero, C. J.
under either a direct perpetrator or an aiding and abetting
theory. Based on the special circumstance instructions alone, if
the jury found Lopez was an actual killer, it is reasonably
possible the jury could have believed he did not personally
premeditate and was liable only for second degree murder.
If the jury did not find that Lopez was an actual killer, it
must instead have determined that Lopez “with the intent to kill
aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted any actor in the commission of the murder
in the first degree.” (See CALJIC No. 8.80.1.) The Court of
Appeal described the true finding as proof that “Lopez acted
with an intent to kill, as opposed to the intent to commit one of
the target crimes” and was therefore persuaded that the jury
made the findings necessary to support the valid theory of direct
aiding and abetting. But intent to kill is only one of the elements
required to prove direct aiding and abetting. It does not, itself,
show the jury necessarily found Lopez guilty on a proper
theory.7
7
In passing, Lopez contends the jury may not have found
that he acted “with a true intent to kill,” notwithstanding its
gang-murder special-circumstance finding. The State Public
Defender, as amicus curiae, expands on this idea. Their
argument is that the trial court’s instruction on natural and
probable consequences confused the jury regarding intent to kill
in the context of murder, and that confusion carried over to the
special circumstance. We are not persuaded. The instruction
on natural and probable consequences expanded the scope of
liability for murder; it did not alter the predicate elements of the
murder offense itself. A reasonable juror would not have been
confused about the relationship between the two. Nor would a
juror have been confused about the intent to kill element of the
gang-murder special circumstance. The relevant jury
34
In re LOPEZ
Opinion of the Court by Guerrero, C. J.
The Attorney General argues that the special
circumstance finding still demonstrates harmlessness because,
in addition to intent to kill, it shows the jury made all of the
remaining findings necessary to support the valid theory of
direct aiding and abetting first degree murder. This argument
is unpersuasive. While the relevant language evokes similar
concepts, it does not cover all of the elements of direct aiding and
abetting.
As noted, for a defendant to be liable for first degree
murder as a direct aider and abettor, “the prosecution must
show that the defendant aided or encouraged the commission of
the murder with knowledge of the unlawful purpose of the
perpetrator and with the intent or purpose of committing,
encouraging, or facilitating its commission.” (Chiu, supra,
instruction was patterned on CALJIC No. 8.80.1 and explicitly
stated, “If you find that a defendant was not the actual killer of
a human being, or if you are unable to decide whether the
defendant was the actual killer or an aider and abettor, you
cannot find the special circumstance to be true as to that
defendant unless you are satisfied beyond a reasonable doubt
that such defendant with the intent to kill aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted
any actor in the commission of the murder in the first degree. [¶]
You must decide separately as to each of the defendants the
existence or nonexistence of each special circumstance alleged
in this case.” (Italics added.) Similarly, the specific jury
instruction covering the gang-murder special circumstance
required the jury to find that a defendant who actually killed
the victim must have “intentionally” done so. (See CALJIC
No. 8.81.22.) We have credited similar findings of intent to kill,
notwithstanding a natural and probable consequences
instruction. (See, e.g., People v. Coffman and Marlow (2004)
34 Cal.4th 1, 108.) Lopez and the State Public Defender have
failed to show we cannot similarly credit the jury’s findings here.
35
In re LOPEZ
Opinion of the Court by Guerrero, C. J.
59 Cal.4th at p. 167.) The jury here was likewise instructed
more broadly that “[a] person aids and abets the commission of
a crime when he or she: [¶] . . . [w]ith knowledge of the unlawful
purpose of the perpetrator, and [¶] . . . [w]ith the intent or
purpose of committing or encouraging or facilitating the
commission of the crime, and [¶] . . . [b]y act or advice aids,
promotes, encourages or instigates the commission of the crime.”
(See CALJIC No. 3.01.) Moreover, “[a]n aider and abettor who
knowingly and intentionally assists a confederate to kill
someone could be found to have acted willfully, deliberately, and
with premeditation, having formed his own culpable intent.
Such an aider and abettor, then, acts with the mens rea required
for first degree murder.” (Chiu, at p. 167.) The gang-murder
special-circumstance instruction falls far short of explaining
these principles to the jury.
The Attorney General relies on People v. Beck and Cruz
(2019) 8 Cal.5th 548, but that case is distinguishable because it
involved conspiracy to commit murder, not the gang-murder
special circumstance. In Beck, we noted the defendants “were
charged with conspiracy to murder, not conspiracy to commit a
lesser crime that resulted in murder.” (Id. at p. 645.) We
therefore held there was “no possibility they were found guilty
of murder on a natural and probable consequences theory.”
(Ibid.) Beck has little relevance here because, among other
things, the findings necessary for conspiracy to commit murder
and the findings necessary for the gang-murder special
circumstance are materially different. Conspiracy to murder
requires not only intent to kill, but also intent to agree and
actual agreement. (§ 182; People v. Swain (1996) 12 Cal.4th
593, 600, 607.) “Consequently, it logically follows that where
two or more persons conspire to commit murder — i.e., intend to
36
In re LOPEZ
Opinion of the Court by Guerrero, C. J.
agree or conspire, further intend to commit the target offense of
murder, and perform one or more overt acts in furtherance of
the planned murder — each has acted with a state of mind
‘functionally indistinguishable from the mental state of
premeditating the target offense of murder.’ [Citation.] The
mental state required for conviction of conspiracy to commit
murder necessarily establishes premeditation and deliberation
of the target offense of murder — hence all murder conspiracies
are conspiracies to commit first degree murder, so to speak.”
(People v. Cortez (1998) 18 Cal.4th 1223, 1232.) Unlike the
conspiracy instruction, the gang-murder special-circumstance
instruction does not necessarily establish all of the elements of
directly aiding and abetting first degree murder. Thus, it does
not in and of itself show the jury made the necessary findings
for a valid theory.
This conclusion, however, does not end the harmlessness
inquiry. “In determining . . . whether the error was harmless,
the reviewing court is not limited to a review of the verdict
itself.” (Aledamat, supra, 8 Cal.5th at p. 13.) The Court of
Appeal below nodded to this further inquiry by describing the
evidence against Lopez as “overwhelming.” While it is common
(including in this court) to shorthand the analysis in this way,
such a description may obscure the specific question a reviewing
court must answer in order to find an omitted element or
alternative-theory error harmless beyond a reasonable doubt.
As discussed, this further harmlessness inquiry requires
a reviewing court to “examine[] what the jury necessarily did
find and ask[] whether it would be impossible, on the evidence,
for the jury to find that without also finding the missing fact as
well.” (Aledamat, supra, 8 Cal.5th at p. 15.) In other words, a
reviewing court must be persuaded that, in light of the jury’s
37
In re LOPEZ
Opinion of the Court by Guerrero, C. J.
findings and the evidence at trial, any rational juror who made
those findings would have made the additional findings
necessary for a valid theory of liability, beyond a reasonable
doubt, if the jury had been properly instructed. (Gonzalez,
supra, 54 Cal.4th at p. 666.) If the reviewing court determines
beyond a reasonable doubt that any rational juror would have
made the additional findings, based on the jury’s actual verdict
and the evidence at trial, the error is harmless because the
presentation of the invalid theory to the jury made no difference.
The error did not contribute to the verdict. (See Neder, supra,527 U.S. at pp. 15–16; Aledamat, at p. 13; Merritt, supra,2 Cal.5th at p. 827.)
Lopez objects to this mode of analysis because the jury
could only have rendered its special circumstance finding after
finding Lopez guilty of first degree murder. He argues that,
regardless of the content of the special circumstance finding, the
jury’s first degree murder verdict could have been based on the
invalid theory of natural and probable consequences. Lopez’s
argument reflects a misplaced focus on what the jury
subjectively thought, rather than what a reviewing court can
determine, beyond a reasonable doubt, that a rational jury
would have found if it had been properly instructed. We rejected
that focus in Gonzalez, Merritt, and Aledamat, just as the United
States Supreme Court did in Neder and Hedgpeth.
Lopez also contends various circumstances in this matter
preclude a finding of harmlessness. For example, he asserts
that the natural and probable consequences theory was the
“easiest way” for the jury to find him guilty, but this contention
again reflects an unduly restrictive focus on what the jury
actually thought, rather than what a reviewing court can
determine, beyond a reasonable doubt, that any rational jury
38
In re LOPEZ
Opinion of the Court by Guerrero, C. J.
would surely have found based on the verdict and the evidence
here. The proper analysis under Aledamat does not rest on “ ‘the
likelihood that the jurors would have applied the erroneous
instruction,’ ” but whether the jury could have found what it did
find without also making the findings necessary for a valid
theory. (People v. Glukhoy (2022) 77 Cal.App.5th 576, 598,
fn. 42, review granted July 27, 2022, S274792.) Lopez also
argues the error cannot be held harmless because the evidence
was “sufficient” to support a conviction based on the invalid
theory. But this circumstance merely shows it was possible for
a rational jury to rely on the invalid theory; it does not foreclose
a conclusion that any rational jury would have found Lopez
guilty based on a valid theory as well, based on the jury’s actual
findings and the evidence here.8
Along the same lines, Lopez focuses on what he
characterizes as “indications” the jury actually relied on an
invalid theory, including the prosecutor’s closing argument and
the jury’s note during deliberations. Lopez is correct that our
review for harmless error should encompass “the entire cause,
8
We likewise reiterate that the sufficiency of the evidence
supporting a valid theory is not the appropriate standard either.
(Martinez, supra, 3 Cal.5th at pp. 1225–1226.) Instead, the
combination of the evidence and the jury’s actual verdict must
be so compelling that a reviewing court can conclude any
rational juror who made the findings in the actual verdict would
have found the defendant guilty based on a valid theory if the
jury had been properly instructed. In other words, “[t]he
reviewing court examines what the jury necessarily did find and
asks whether it would be impossible, on the evidence, for the
jury to find that without also finding the missing fact as well.”
(Aledamat, supra, 8 Cal.5th at p. 15.) As noted, this standard is
quite high, and it will often require an “exhaustive[] review[]” of
the trial evidence. (Gonzalez, supra, 54 Cal.4th at p. 666.)
39
In re LOPEZ
Opinion of the Court by Guerrero, C. J.
including the evidence” and consider “all relevant
circumstances.” (Aledamat, supra, 8 Cal.5th at p. 13.) But if a
reviewing court can conclude the error was harmless beyond a
reasonable doubt under Neder and Aledamat because any
rational juror who made the findings reflected in the actual
verdict and heard the evidence at trial would also have made
the findings necessary to support a valid theory, such
“indications” will not generally be significant. The prosecutor’s
mere reliance on an invalid theory will not overcome a showing
of harmlessness under Neder and Aledamat. Indeed, as
discussed, if the prosecutor’s mere reliance on an invalid theory
were dispositive on the issue of harmlessness, trial court errors
of omission and misdescription of an offense’s elements could
almost never be held harmless because the prosecutor almost
invariably argues based on the theories in the trial court’s
instructions. For similar reasons, a jury note showing mere
consideration of an invalid theory will not overcome a showing
of harmlessness under Neder and Aledamat. Every jury
presented with instructions that omit or misdescribe the
elements of an offense will have considered — and actually
relied to some extent on — an invalid theory of liability. These
“indications” are no bar to a finding of harmlessness under
Neder, Merritt, and Aledamat.9
9
In this context, we observe that the jury note here is
distinguishable from a note that affirmatively showed that one
or more jurors did not believe the valid theory had been proven
beyond a reasonable doubt. (See, e.g., People v. Wear (2020)
44 Cal.App.5th 1007, 1021.) In such a circumstance, the State
Public Defender and the Attorney General agree that reversal
would be required.
40
In re LOPEZ
Opinion of the Court by Guerrero, C. J.
The Court of Appeal here correctly based its analysis on
Aledamat, but it appears to have misapprehended certain
aspects of the harmless error analysis. As noted, the Court of
Appeal described the evidence against Lopez as “overwhelming”
and found the Chiu error harmless on that basis. It explained
that Lopez “was seen after the murder with blood on his clothes
and shoes and holding a knife handle, and he also bragged about
the stabbing afterward. His appellate attorney in the original
appeal did not even challenge the sufficiency of the evidence
supporting his first degree murder conviction, which was
reasonable given the record.” We find this reasoning
inadequate, for two main reasons.
First, the Court of Appeal does not appear to have
considered whether a rational jury, having rendered the verdicts
at issue here, would necessarily have to believe the cited
testimony regarding Lopez, especially his bragging about the
stabbing. The evidence a court may consider under Aledamat
does not necessarily extend to the whole body of evidence
supporting the verdict. Rather, a court must determine what
evidence a jury would rationally have to believe. For example,
as Lopez correctly points out, “Although jurors evidently
believed Dragoman and Ortiz’s testimony that [Lopez] joined in
the attack on the victim, one or more jurors may have doubted
the credibility of those witnesses’ assertions portraying [Lopez]
as the most culpable attacker.” It is well settled that the jury
has wide latitude to believe or disbelieve witnesses, or even
specific portions of their testimony, as it sees fit. “ ‘[T]he jury
properly may reject part of the testimony of a witness, though
not directly contradicted, and combine the accepted portions
with bits of testimony or inferences from the testimony of other
witnesses thus weaving a cloth of truth out of selected available
41
In re LOPEZ
Opinion of the Court by Guerrero, C. J.
material.’ ” (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51,
67–68; accord, People v. Crooker (1956) 47 Cal.2d 348, 355 [“The
jury may accept as true a portion of the testimony of a witness
and disbelieve the remainder or have a reasonable doubt as to
its correctness”].)
Second, the Court of Appeal’s reference to the sufficiency
of the evidence supporting Lopez’s first degree murder
conviction is contrary to the applicable standard under
Aledamat. The question here is not the sufficiency of the
evidence to support a valid theory, but its opposite. To
determine the sufficiency of the evidence, a reviewing court
essentially asks whether any rational juror could have made the
findings necessary to convict the defendant on a valid theory.
To determine harmlessness under Aledamat, a reviewing court
essentially asks whether any rational juror who made the
findings reflected in the verdict and heard the evidence at trial
could have had reasonable doubt regarding the findings
necessary to convict the defendant on a valid theory. “The
reviewing court examines what the jury necessarily did find and
asks whether it would be impossible, on the evidence, for the
jury to find that without also finding the missing fact as well.”
(Aledamat, supra, 8 Cal.5th at p. 15.)
To summarize, under Aledamat, “no higher standard of
review applies to alternative-theory error than applies to other
misdescriptions of the elements. The same beyond a reasonable
doubt standard applies to all such misdescriptions, including
alternative-theory error.” (Aledamat, supra, 8 Cal.5th at p. 9.)
“The reviewing court must reverse the conviction unless, after
examining the entire cause, including the evidence, and
considering all relevant circumstances, it determines the error
was harmless beyond a reasonable doubt.” (Id. at p. 13.)
42
In re LOPEZ
Opinion of the Court by Guerrero, C. J.
“ ‘Sometimes it is possible to determine from other portions of
the verdict that the jury necessarily found the defendant guilty
on a proper theory.’ ” (Id. at p. 8.) But where, as here, the jury’s
verdict does not necessarily allow for such a determination, a
court may look to “the entire cause, including the evidence.” (Id.
at p. 13.) “The reviewing court examines what the jury
necessarily did find and asks whether it would be impossible, on
the evidence, for the jury to find that without also finding the
missing fact as well.” (Id. at p. 15.) In other words, if “ ‘[n]o
reasonable jury that made all of these findings could have failed
to find’ ” the facts necessary to support a valid theory, the
alternative-theory error was harmless. (Ibid.) Indications that
the jury considered an invalid theory, without more, do not
undermine that conclusion.
Finally, while we have the discretion to apply the correct
standard to the facts here (see, e.g., Aledamat, supra, 8 Cal.5th
at pp. 13–15), we decline to do so given the size and complexity
of the underlying trial record. (See Cal. Rules of Court,
rule 8.516(b)(3) [“The court need not decide every issue the
parties raise or the court specifies”].) We therefore remand the
matter to the Court of Appeal to reconsider whether the Chiu
error was harmless beyond a reasonable doubt under the
standards we discuss in this opinion. We express no view on the
proper resolution of that question.
43
In re LOPEZ
Opinion of the Court by Guerrero, C. J.
CONCLUSION
We reverse the judgment of the Court of Appeal and
remand the matter for further proceedings consistent with this
opinion.
GUERRERO, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
44
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion In re Lopez
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 9/25/19 – 1st Dist.,
Div. 1
Rehearing Granted
__________________________________________________________
Opinion No. S258912
Date Filed: April 3, 2023
__________________________________________________________
Court: Superior
County: Sonoma
Judge: Raima H. Ballinger
__________________________________________________________
Counsel:
Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler
and Lance E. Winters, Chief Assistant Attorneys General, Jeffrey M.
Laurence, Assistant Attorney General, Laurence K. Sullivan, Bridget
Billeter, Seth K. Schalit, Donna M. Provenzano and Amit Kurlekar,
Deputy Attorneys General, for Appellant Department of Corrections
and Rehabilitation.
Victor J. Morse, under appointment by the Supreme Court, for
Respondent Rico Ricardo Lopez.
Mary K. McComb, State Public Defender, Nerissa Huertas and Samuel
Weiscovitz, Deputy State Public Defenders, and Elias Batchelder for
the State Public Defender as Amicus Curiae on behalf of Respondent
Rico Ricardo Lopez.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Amit Kurlekar
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
(415) 510-3810
Victor J. Morse
Attorney at Law
3145 Geary Boulevard, PMB # 232
San Francisco, CA 94118
(415) 387-5828