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 In an unpublished opinion, the Court of Appeal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

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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.

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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

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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

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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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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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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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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.

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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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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

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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.

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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

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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

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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