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California Supreme Court Clarifies Harmless-Error Analysis of Alternative-Theory Error, Reverses and Remands Where Court of Appeal Applied Incorrect Standard

by Douglas Ankney

The Supreme Court of California reversed a judgment of the Court of Appeal (“COA”) and remanded because the COA incorrectly applied the harmless-error analysis of People v. Aledamat, 447 P.3d 277 (Cal. 2019), where the jury was instructed with both a legally valid theory and a legally invalid theory of the offense – known as an “alternative-theory error.”

In 2005, Rico Ricardo Lopez and three other Norteno gang members allegedly attacked and stabbed to death Sureno gang member Ignacio Gomez. A jury convicted Lopez and his codefendants of first-degree premeditated murder (California Penal Code §§ 187(a) and 189); found true a gang-murder special circumstance (§ 190.2(a)(22); and a criminal street gang sentencing enhancement (§ 186.22(b)(1)). [Note: All statutory references are to the California Penal Code.] Lopez was sentenced to life in prison without parole.

Relevant to this opinion, the jury was instructed as follows:

“A principal in a crime includes both a person ‘who directly and actively commits the act constituting the crime’ and a person ‘who aids and abets the commission of the crime.’” CALJIC No. 3.00.

“A person aids and abets the commission of a crime when he or she: with knowledge of the unlawful purpose of the perpetrator, and with the intent or purpose of committing or encouraging or facilitating the commission of the crime, and by act or advice aids, promotes, encourages or instigates the commission of the crime.” CALJIC No. 3.01.

“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.” CALJIC No. 3.02. [Note: Under the natural and probable consequences doctrine, the crimes that are intentionally committed, e.g., assault, battery, etc., that result in the murder are known as the “target crimes.”]

The jury was instructed with regard to the gang-murder special circumstance “[i]f you find that a defendant is 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.” CALJIC No. 8.80.1.

With regard to the special circumstance “intentional killing by an active street gang member,” the trial court’s instruction was lengthy, but pertinent here is that to find the circumstance true, the jury had to find that “[t]he defendant intentionally killed the victim.” CALJIC No. 8.81.22.

The evidence at trial was such that both the prosecutor and defense counsel argued that Lopez was not the person who actually stabbed Gomez. Although Gomez had been stabbed more than 40 times, a prosecution expert testified that a knife with a serrated blade that was broken during the altercation and was attributed to Lopez was not used in the stabbing.

During deliberations, the jury asked the trial court to clarify “premeditation and deliberation” in the context of the natural and probable consequences doctrine. The court responded, in pertinent part, the “term ‘deliberate and premeditate[d]’ refers only to First Degree Murder” and added that the term is not an element of any of the target crimes under the natural and probable consequences doctrine.

Lopez’s judgment was affirmed on appeal, and he subsequently filed a petition for writ of habeas corpus, relying on People v. Chiu, 325 P.3d 972 (Cal. 2014) (Supreme Court invalidated the natural and probable consequences theory of aiding and abetting first degree murder), for his argument that his jury was instructed on the natural and probable consequences doctrine that Chiu found invalid and that this error was not harmless.

The trial court, persuaded that the jury’s question during deliberation demonstrated the jurors had relied on the invalid instruction in finding Lopez guilty, granted relief. The prosecution appealed. The COA, relying on Aledamat, concluded the error was harmless and reversed. The COA reasoned that the gang-murder special circumstance requiring the jury to find that Lopez acted as an aider and abettor with intent to kill and the “overwhelming” evidence against Lopez sustained the verdict. The California Supreme Court granted discretionary review.

The Court observed: “an 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.” Chiu. Chiu’s holding is retroactive and may be raised in a habeas petition. In re Martinez, 407 P.3d 1 (Cal. 2017). Therefore, based on Chiu, the trial court erred by instructing the jury it could find Lopez guilty of first-degree murder based on the theory of natural and probable consequences. However, “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.”

When “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.

The error, known as “alternative-theory error,” requires reversal unless the reviewing court determines the error was harmless beyond a reasonable doubt. Aledamat. The “harmless error rule,” first enunciated in Chapman v. California, 386 U.S. 18 (1967), “applies in a variety of contexts, such as … error in omitting entirely one or more elements of a charged offense.” Aledamat.

The application of the harmless-error standard for alternative-theory error “is consistent with, and not different from, the application of the standard for other misdescriptions of the charged offense.” Id. A reviewing court is 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.” Id. (Emphasis in original.) “In other words, if ‘no reasonable jury’ would have found in favor of the defendant on the missing fact, given the jury’s actual verdict and state of the evidence, the error may be found harmless beyond a reasonable doubt.” Id. Adelamat’s application of the harmless error standard is derived from a similar error in Neder v. United States, 527 U.S. 1 (1999), in which the U.S. Supreme Court distilled the applicable test to: “Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?”

The Court explained that the central holding in Aledamat was “that no higher standard of review applies to alternative-theory error than applies to other misdescriptions of the elements.” Therefore, just as in cases where the jury relies on an instruction that omits an element (without an alternative instruction also given) and the error is reviewed for harmless error, it makes no difference in an alternative-theory error that the jury relied on the legally invalid instruction. The question is not “did the jury make its finding on an invalid instruction?” If that were the standard, then in every case where the court gave an instruction with a missing element, the error could not be harmless because in those cases it is certain the jury relied on the legally invalid instruction, explained the Court.

In the present case, the Court stated that in order to find Lopez guilty of first-degree murder, the jury had to find that either he murdered Gomez with the mens rea of premeditation and deliberation or that he was an aider and abettor who acted with the mens rea of premeditation and deliberation. Chiu. In the court below, the prosecution argued, and the COA concurred, that since the jury found true the gang-murder special circumstance which required a finding that Lopez had an intent to kill and a finding that he aided and abetted in the commission of the crime of first-degree murder, the jury necessarily found that Lopez acted with premeditation and deliberation.

But this instruction did not necessarily require a finding that Lopez himself possessed the requisite mens rea, according to the Court. That is, the instruction required only a finding that Lopez had the intent to kill when he assisted another who had premeditated and deliberated before committing the murder. On discretionary review, the Attorney General rightly conceded that a finding of intent is not the same as a finding of premeditation and deliberation.

Finally, the COA’s reliance on the “overwhelming” evidence indicated the COA determined the evidence was sufficient to convict under the legally valid theory. The Court explained: “The question here is not the sufficiency of the evidence, but its opposite.… To determine harmlessness under Adelamat, 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 a 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.’”

Accordingly, the Court reversed the judgment of the COA and remanded for further proceedings consistent with its opinion. See: In re Lopez, 526 P.3d 88 (Cal. 2023).

Writer’s note: The Court recognized the complexity of the harmless-error review of this issue and noted that People v. Thompkins, 50 Cal. App. 5th 365 (2020), reached an incorrect conclusion regarding the harmless error analysis and the showing of prejudice. The Court expressly disapproved Thompkins to the extent it is inconsistent with Court’s description of the standard in the present opinion.  

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