In re Lopez CA1/1

Filed 8/28/23 In re Lopez CA1/1
Opinion on remand from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re RICO RICARDO LOPEZ, A152748
on Habeas Corpus.
(Sonoma County
Super. Ct. No. SCR32760)

Petitioner Rico Ricardo Lopez was convicted of first degree
premeditated murder. The trial court later granted Lopez’s petition for a
writ of habeas corpus after our Supreme Court invalidated one of the three
theories upon which the jury was instructed (the natural and probable
consequences doctrine) for first degree premeditated murder. (People v. Chiu
(2014) 59 Cal.4th 155, 166 (Chiu).) This court reversed in an unpublished
opinion after concluding that the Chiu error was harmless under the
circumstances of the case because the jury found true a gang-murder special
circumstance which included the finding that Lopez intended to kill (Pen.
Code, § 190.2, subd. (a)(22)).1 (In re Lopez (Sept. 25, 2019, A152748) [nonpub.
opn.] (Lopez I).)
The Supreme Court granted review and concluded that the special
circumstance was insufficient standing alone to establish harmlessness. (In

1 All statutory references are to the Penal Code.

1
re Lopez (2023) 14 Cal.5th 562, 568 (Lopez II).) It also found that this court
had not “rigorously review[ed] the evidence to determine” whether the Chiu
error was harmless. (Ibid.) Instead of explaining whether its own review of
the evidence revealed harmlessness, the court remanded to this court to
reexamine the issue. Applying the standard as articulated by the Supreme
Court, we conclude that the Chiu error was not harmless beyond a reasonable
doubt. We therefore affirm the trial court’s order granting Lopez’s petition
for a writ of habeas corpus.
II.
FACTUAL AND PROCEDURAL
BACKGROUND
In Lopez II, the Supreme Court provided a detailed summary of the
facts presented in the prosecution’s case against Lopez, something that was
not included in the opinion resolving Lopez’s original appeal since Lopez did
not challenge the evidence supporting his conviction. (People v. Amante et al.
(Sept. 3, 2009, A113655) (Amante) [nonpub. opn.].) We quote extensively
from the factual summary in Lopez II.
“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, [Ignacio]
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.

2
 “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 [Patrick] Higuera[, Jr.] and [Mario] 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 kept walking. . . .
“Three of the men went down the path after Gomez, while Ochoa-
Gonzales hung back. A fifth man, apparently [Peter] 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

3
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 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 [with the defendants], Kacee Dragoman
and Lindsay Ortiz, testified at trial. Both were granted immunity, and their
accounts of the night’s events were largely consistent. . . .
“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. . . . [T]he 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 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.

4
 “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.
“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.

5
 “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 ‘ “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

6
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.” (Lopez II, supra, 14 Cal.5th at pp. 570–572.)
“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 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.” (Lopez II, supra, 14 Cal.5th at p. 572.)
A police gang expert opined at trial that the Norteños were a criminal
street gang under California law (§ 186.22, subd. (f)), and that the creek
where Gomez was killed was disputed territory with another criminal street
gang, the Sureños. The expert further opined that each defendant, including
Lopez, was an active participant in the Norteños street gang. And he
testified that assuming the facts of the prosecution’s case were true, such a
murder would have been committed for the benefit of or in association with a
criminal street gang.

7
 “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.” (Lopez II, supra,
14 Cal.5th at p. 574.)
“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 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

8
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 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

9
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 II, supra, 14 Cal.5th at pp. 574–575.)
The trial court instructed the jury on three theories of first degree,
premeditated murder, two of which (actual killer and direct aiding and
abetting) are still valid and one of which (aiding and abetting under the
natural and probable consequences doctrine) was subsequently invalidated
by our Supreme Court.
The jury was correctly instructed that to convict a defendant of murder,
the prosecution must prove beyond a reasonable doubt that the defendant
unlawfully killed a human being with malice aforethought. (§ 187, subd. (a).)
Jurors also were told that the crime of first degree murder requires the
specific intent to kill. Jurors were instructed that if they found Lopez guilty
of murder, they had to determine whether the murder was of the first or
second degree. They were told that murder is of the first degree where it is
“perpetrated by any kind of willful, deliberate and premeditated killing with
express malice aforethought.” (See § 189, subd. (a).) “Deliberate” was
defined as “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,” and “premeditated” was defined as “considered beforehand.” (See
People v. Morales (2020) 10 Cal.5th 76, 88.) The trial court instructed the
jury that a principal in a crime includes a person “who directly and actively

10
commit[s] the act constituting the crime” (i.e., an actual killer). (See CALJIC
No. 3.00.)
The jury also was told that they could convict Lopez if he directly aided
and abetted in a crime. (CALJIC No. 3.00.) Aiding and abetting was
correctly defined as a person acting (1) with knowledge of the unlawful
purpose of the perpetrator, and (2) with “the intent or purpose of committing
or encouraging or facilitating the commission of the crime,” and (3) by act or
advice aiding, promoting, encouraging or instigating the commission of the
crime. (See Lopez II, supra, 14 Cal.5th at p. 579.)
Defendants objected on various grounds to the standard jury
instruction regarding the natural and probable consequences doctrine
(CALJIC No. 3.02). Lopez’s attorney objected in a way that presaged the
rationale later articulated in Chiu, stating that “as far as I’m concerned, a
premeditated, deliberated murder is not the ordinary probable consequence
of almost anything except a premeditated, deliberated murder. And that’s
why it specifically differentiates when the presumption is that any murder is
a second degree murder, that’s the presumption.”
The court nonetheless instructed the jury on the natural and probable
consequences doctrine, “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

11
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.” (Lopez II, supra, 14 Cal.5th at p. 576.)
Of particular focus in these habeas proceedings, the jury was correctly
instructed that if it found a defendant guilty of first degree murder, jurors
would then need to determine whether the gang-murder special circumstance
(§ 190.2, subd. (a)(22)) was true. “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

12
carried out to further the activities of the criminal street gang.’ (See CALJIC
No. 8.81.22.)” (Lopez II, supra, 14 Cal.5th at pp. 576–577, italics added.)
“The jury deliberated for approximately four and a half days before
reaching a verdict. During deliberations . . . , 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.’ ” (Lopez II,
supra, 15 Cal.5th at pp. 577–578.)

13
 The jury returned verdicts against each defendant. Lopez was
convicted of first degree premeditated murder (§§ 187, subd. (a), 189).2 The
verdict form stated that the jury found Lopez guilty of first degree murder “in
that he did unlawfully, willfully, and with malice aforethought,
premeditation, and deliberation, murder” Gomez. But it did not specify
which theory jurors relied on to convict Lopez.3 The jury also found true as to
Lopez a gang-murder special circumstance (§ 190.2, subd. (a)(22)) and a
criminal street gang sentencing enhancement (§ 186.22, subd. (b)(1)). The
trial court sentenced Lopez—who was 19 years old at the time of the killing—
to life in prison without the possibility of parole. Division Four of this court
affirmed the judgment in an unpublished opinion. (Amante, supra, A113655.)
Nearly five years after Lopez’s conviction was affirmed, our Supreme
Court decided Chiu, supra, 59 Cal.4th 155. In Chiu, the court held that an
aider and abettor may not be found liable for first degree murder for aiding
and abetting some other offense, the natural and probable consequence of
which was first degree murder. (Id. at p. 166.) The basis of this holding was
that “the connection between the defendant’s culpability and the

2 Amante, Cardenas, and Higuera also were convicted of first degree

premeditated murder (§§ 187, subd. (a), 189). 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)).
3 That the verdict form stated the murder was deliberate and

premeditated did not conclusively establish the points. Verdict forms must
be construed in light of the instructions and issues presented to the jury.
(People v. Camacho (2009) 171 Cal.App.4th 1269, 1272–1273.) Here, the jury
was instructed that it could return a verdict for first degree murder based on
the natural and probable cause doctrine, but it was never given a first degree
murder verdict form that did not reference deliberation and premeditation.
Thus, it was possible for the jury to have signed the verdict form without
necessarily finding that Lopez acted with deliberation and premeditation.

14
perpetrator’s premeditative state is too attenuated to impose aider and
abettor liability for first degree murder . . . , especially in light of the severe
penalty involved and the . . . public policy concern of deterrence.” (Ibid.) The
court determined that the “punishment for second degree murder is
commensurate with a defendant’s culpability for aiding and abetting a target
crime that would naturally, probably, and foreseeably result in a murder
under the natural and probable consequences doctrine.” (Ibid.)4
The instant proceedings arose when Lopez filed a petition for a writ of
habeas corpus in the trial court challenging his conviction based on Chiu
error.5 The trial court issued an order to show cause. The prosecutor

4 The Legislature later entirely eliminated natural-and-probable-

consequences liability for murder as it applies to aiding and abetting (§§ 188,
subd. (a)(3), 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 2, 3). (See
People v. Lewis (2021) 11 Cal.5th 952, 957.)
5 Amante also sought habeas relief based on Chiu error. Division Four
of this court denied relief. (In re Amante (Nov. 5, 2015, A145920) [petn.
den.].) The order denying the petition stated that Chiu error was harmless
beyond a reasonable doubt because “[t]he jury necessarily found that
petitioner acted with the requisite mental states for purposes of direct aiding
and abetting when they found the gang murder special circumstance of Penal
Code section 190.2, subdivision (a)(22) to be true. This gang special-
circumstance finding is compatible only with the theory that petitioner aided
and abetted the murder directly and not with aiding and abetting under the
natural and probable consequences theory.” This is essentially the reasoning
of Lopez I.
The Supreme Court denied Amante’s petition for review. (In re Amante
(Jan. 13, 2016, S230603) [petn. rev. den.].) Division Four later affirmed the
trial court’s denial of Amante’s and Cardenas’s petitions to have their
convictions vacated and to be resentenced under section 1172.6 (originally
codified as 1170.95). Our Supreme Court has granted review in both cases on
the issue of whether a jury’s true finding on a gang-murder special
circumstance (§ 190.2, subd. (a)(22)) precludes a defendant from making a
prima facie showing of eligibility for resentencing. (People v. Amante (June 6,
2022, A161567) [nonpub. opn.], petn. rev. granted Aug. 10, 2022, S275395;

15
opposed Lopez’s petition, but did not dispute that Chiu error occurred. In the
return to the order to show cause, the prosecutor argued that because the
jury had determined Lopez had acted with an intent to kill when it found
true the gang-murder special circumstance (§ 190.2, subd. (a)(22)), it “c[ould
not] reasonably be said, either as a matter of law or fact, that Lopez’s first
degree murder conviction was based on the natural and probable
consequences doctrine.”
The trial court granted Lopez’s petition because it could not conclude
that the instructional error was harmless beyond a reasonable doubt. The
People appealed. In this court, the People again argued that the Chiu error
was harmless since the jury made the findings necessary for the gang-murder
special circumstance (§ 190.2, subd. (a)(22)). This court agreed and reversed
the trial court’s order granting the petition for habeas corpus. Lopez sought
review in our Supreme Court, which granted review.
As discussed in more detail below, in Lopez II the Supreme Court held
that the gang-murder special circumstance, standing alone, does not
establish that Chiu error is harmless beyond a reasonable doubt. (Lopez II,
supra, 14 Cal.5th at p. 586.) In addition, the court stated that this court in
analyzing harmlessness had failed to fully evaluate the evidence. (Id. at
p. 588.) Instead of applying its announced standard governing harmlessness
of the instructional error, the Supreme Court remanded to this court without
expressing a view, as it typically does, on the proper resolution of the issue.
(Id. at p. 592; cf. In re Ferrell (2023) 14 Cal.5th 593, 605–606 [Chiu error not
harmless beyond a reasonable doubt]; People v. Aledamat (2019) 8 Cal.5th 1,
3–4 (Aledamat) [instructional error harmless]; In re Martinez (2017)

People v. Cardenas (June 30, 2022, A161694) [nonpub. opn.], petn. rev.
granted Sept. 14, 2022, S275778.)

16
3 Cal.5th 1216, 1227 [instructional error not harmless since Attorney General
did not show beyond a reasonable doubt that jury relied on legally valid
theory]; Chiu, supra, 59 Cal.4th at pp. 158–159, 167 [instructional error not
harmless because court could not conclude that murder conviction was based
on a valid theory]; People v. Chun (2009) 45 Cal.4th 1172, 1205 [instructional
error harmless because no jury could find felony murder without also making
findings necessary for valid conscious-disregard-for-life theory of malice].)
III.
DISCUSSION
Applying the standard announced by the Supreme Court in Lopez II,
we are unable to establish with certainty that the Chiu error at Lopez’s trial
was harmless beyond a reasonable doubt. We therefore conclude that the
trial court correctly granted Lopez’s petition for a writ of habeas corpus.
“Where[, as here], a jury is instructed on alternate theories of liability,
one legally valid and one legally invalid, a federal constitutional error has
occurred [because t]he defendant has been deprived of his or her right to ‘a
jury properly instructed in the relevant law.’ ” (Lopez II, supra, 14 Cal.5th at
p. 580.) As we have said, it is undisputed here that Chiu error occurred at
Lopez’s trial. And it is further undisputed that we evaluate whether the
error was harmless under Chapman v. California (1967) 386 U.S. 18
(Chapman). (Neder v. United States (1999) 527 U.S. 1, 8, 15–16.) That is, the
test “is whether it appears ‘beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.’ ” (Neder at p. 15,
citing Chapman at p. 24.)
The concern that arises when juries are instructed with alternate
theories of liability, one of which turns out to be invalid, is that the jury
might have relied on the invalid theory in reaching its verdict and thus did
not make all the findings necessary for conviction under a valid theory. Chiu

17
held that in such situations, “reversal is required unless there is a basis in
the record to find that the verdict was based on a valid ground.” (Chiu,
supra, 59 Cal.4th at p. 167.) It concluded that the instructional error in that
case was not harmless since the record showed that the jury might have
based its first degree, premeditated murder verdict on the natural and
probable consequences theory. (Ibid.) The jury had sent two notes indicating
that jurors were deadlocked on whether the defendant was guilty of first- or
second-degree murder. (Id. at pp. 167–168.) Because these notes indicated
that the jury might have been focusing on the natural and probable
consequences doctrine, the court was unable to conclude beyond a reasonable
doubt that the jury ultimately based its verdict of first-degree murder on a
legally valid theory (i.e., that the defendant directly aided and abetted a first-
degree murder). (Id. at p. 168.)
A few years after Chiu, the Supreme Court likewise held, in In re
Martinez, supra, 3 Cal.5th 1216, that Chiu error was reversible “unless the
reviewing court concludes beyond a reasonable doubt that the jury actually
relied on a legally valid theory in convicting the defendant of first degree
murder.” (Id. at p. 1218.) The court found that it was irrelevant that
sufficient evidence supported the defendant’s conviction for first degree
murder or that the jury could reasonably have found the defendant guilty on
a valid theory. (Id. at pp. 1225–1226.) The question was whether it could be
shown “beyond a reasonable doubt that the jury actually relied on th[e valid]
theory.” (Id. at p. 1226.) The court concluded that there was nothing in the
record that would allow the court to “rule out a reasonable possibility that the
jury relied on the invalid natural and probable consequences theory,” a
conclusion that was supported by the fact that the prosecution had relied on
that theory in closing argument and the jury asked a question about aiding

18
and abetting liability. (Id. at pp. 1226–1227; see also In re Johnson (2016)
246 Cal.App.4th 1396, 1408 [because court could not conclude beyond a
reasonable doubt that jury actually based verdict on alternative valid legal
ground, Chiu error was not harmless].)
Proof that a jury actually rested its verdict on a proper ground may
establish harmlessness, but it is not necessary to finding harmlessness.
(Lopez II, supra, 14 Cal.5th at p. 582, fn. 3.) An alternative-theory
instructional error may be considered harmless if it would be impossible in
light of all the evidence for the jury to have made some findings without also
having made the findings necessary for a conviction under a valid theory.
(Aledamat, supra, 8 Cal.5th at pp. 14–15.) In Aledamat, the defendant was
charged with assault with a deadly weapon (a box cutter). (Id. at p. 3.) The
trial court instructed the jury on an invalid theory, that the box cutter was
inherently deadly. (Ibid.) But it also instructed the jury on a valid theory,
that the defendant used the box cutter in a deadly way. (Ibid.) The Court of
Appeal reversed the conviction since there was no basis in the record to
conclude that the jury actually relied on the valid theory. (Id. at p. 5.)
Aledamat clarified that a reviewing court need not determine whether the
jury actually relied on a valid theory of first degree, premeditated murder, if
there are other ways to determine harmlessness. (Id. at p. 9.) The court
explained that “the usual ‘beyond a reasonable doubt’ standard of review
established in Chapman[, supra,] 386 U.S. 18, 24 . . . for federal
constitutional error applies,” which means that “[t]he 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.” (Aledamat at p. 3.) Several
circumstances in Aledamat convinced the court beyond a reasonable doubt

19
that the error there did not contribute to the verdict: the jury instructions
made it unlikely the jury would view the box cutter as inherently deadly
without considering the circumstances of the case, and defense counsel did
not contest that the box cutter was a deadly weapon. (Id. at pp. 13–14.) And
under the instructions, the jury necessarily found that the defendant acted
with a deadly weapon, he was aware of facts that would lead a reasonable
person to realize his actions would directly and probably result in the
application of force to someone, and he had the present ability to apply such
force. (Id. at p. 15.) Since no reasonable jury that made all of those findings
could have failed to have also found that the defendant used the box cutter in
a way that was capable of causing or likely to cause death or great bodily
injury, the error was harmless beyond a reasonable doubt. (Ibid.)
In Lopez I, we relied on Aledamat and concluded that the Chiu error
was harmless beyond a reasonable doubt based on the true finding on the
gang-murder special circumstance (§ 190.2, subd. (a)(22)). Chiu had noted
that liability under the natural and probable consequences doctrine was
vicarious in nature. (Chiu, supra, 59 Cal.4th at p. 164.) “ ‘By its very nature,
aider and abettor culpability under the natural and probable consequences
doctrine is not premised upon the intention of the aider and abettor to
commit the nontarget offense because the nontarget offense was not intended
at all. It imposes vicarious liability for any offense committed by the direct
perpetrator that is a natural and probable consequence of the target offense.
[Citation.] Because the nontarget offense is unintended, the mens rea of the
aider and abettor with respect to that offense is irrelevant and culpability is
imposed simply because a reasonable person could have foreseen the
commission of the nontarget crime.’ ” (Ibid.) Here, though, the jury was
instructed that to find the circumstance true for an aider and abettor, jurors

20
had to find that Lopez acted with the intent to kill. (CALJIC No. 8.80.1.) We
reasoned that a true finding 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. (See, e.g., People v. Glukhoy (2022) 77 Cal.App.5th 576,
590 [“[F]or liability under the natural and probable consequences doctrine,
the aider and abettor need only have the intent to participate in a target
offense; guilt for the charged crime is thereby imputed to him.”].) In other
words, we essentially held that it was “ ‘possible to determine from other
portions of the verdict that the jury necessarily found [Lopez] guilty on a
proper theory,’ ” that is, the valid aiding and abetting theory. (Aledamat,
supra, 8 Cal.5th at p. 8.)
Lopez II rejected this conclusion and held that the gang-murder special
circumstance was insufficient to demonstrate that Chiu error was harmless
beyond a reasonable doubt. (Lopez II, supra, 14 Cal.5th at pp. 586–587.) In
reaching its holding, Lopez II stated that the gang-murder special
circumstance “does not itself establish the elements of first degree
premeditated murder under either a direct perpetrator or an aiding and
abetting theory.”6 (Id. at p. 586.) Of course, a true finding on the gang-
murder special circumstance alone never establishes all the elements of first
degree murder, nor is it intended to. The special circumstance is not a theory
of murder but is an issue that is considered by the jury only after the
defendant is “found guilty of murder in the first degree.” (§ 190.2, subd. (a).)
As the Supreme Court noted, this court in Lopez I did not focus on the
theory that Lopez was the actual killer. (Lopez II, supra, 14 Cal.5th at

6 In Lopez I, we did not mean to suggest that the special circumstance

established the underlying liability on a valid theory, only that it established
harmlessness when considered with the findings the jury did make.

21
p. 586.) The parties have never disputed that the jury, if it believed Lopez
was the actual killer, received valid instructions to support a verdict that
Lopez was guilty of first degree, premeditated murder. (Id. at p. 579.) The
Supreme Court, however, remarked that “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.” (Id. at
p. 586.) But this would be true only if the jury relied only on the instructions
for the gang-murder special circumstance, and we know it did not. The jury
was expressly instructed to consider the special circumstance only if it first
found that a defendant was guilty of first degree murder. Thus, if the jury
believed Lopez was an actual killer, it necessarily found that he acted with
deliberation and premeditation when it convicted him of first degree murder
since jurors received accurate instructions on this theory. If the jury believed
Lopez was an actual killer who acted without deliberation and premeditation,
it would have convicted him of second degree murder, which was one of the
options the jury was given and rejected. In that case, the jury would never
have reached the instructions for the gang-murder special circumstance.
As for aiding and abetting, Lopez II likewise stated that the special
circumstance “does not, itself, show the jury necessarily found Lopez guilty
on a proper theory” (i.e., direct aiding and abetting). (Lopez II, supra,
14 Cal.5th at p. 587.) As the jury here was instructed, a defendant is guilty
of direct aiding and abetting when that person aids and abets the commission
of a crime with knowledge of the unlawful purpose of the perpetrator and
with the intent of committing or encouraging the crime promotes, encourages,
or instigates the commission of the crime (CALJIC No. 3.01). (Lopez II at
pp. 587–588.) Lopez II observed that while the relevant language of the
special-circumstance finding “evokes similar concepts, it does not cover all

22
the elements of direct aiding and abetting” (id. at p. 587), and “[t]he gang-
murder special-circumstance instruction falls far short of explaining these
principles [of direct aiding and abetting] to the jury.” (Id. at p. 588.) Again,
the instruction, standing alone, is not intended to explain all principles of
direct aiding and abetting. Still, as we discuss in detail below, we cannot
establish conclusively that if the jury relied on aiding-and-abetting principles
to convict Lopez, it relied on the valid theory of direct aiding and abetting, or
the invalid theory of the natural and probable consequences doctrine.
In considering harmlessness, Lopez II instructs us “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.’ ” (Lopez II, supra, 14 Cal.5th at p. 589, quoting Aledamat, supra,
8 Cal.5th at p. 15.) While the Supreme Court stated that the findings
necessary for the special circumstance fall “far short” of all findings necessary
for conviction under a theory of direct aiding and abetting, it did not
elaborate on the missing fact or facts. (Lopez II at p. 588.) Elsewhere,
however, the Supreme Court pointed out that direct aiding and abetting
requires the jury to have found that Lopez “ ‘aided or encouraged the
commission of the murder with knowledge of the unlawful purpose of the
perpetrator,’ ” which means that “ ‘the aider and abettor must know and
share the murderous intent of the actual perpetrator.’ ” (Lopez II at p. 585.)
“ ‘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.’ ”
(Ibid., quoting Chiu, supra, 59 Cal.4th at p. 167.) Accordingly, even though
the jury here found in relation to the special circumstance that Lopez “with

23
an intent to kill aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted” someone else in the commission of first degree murder
(CALJIC No. 8.80.1), the finding did not necessarily establish the missing fact
needed for a direct aiding-and-abetting theory—i.e., that Lopez knew the
unlawful purpose of the killer. (Lopez II at pp. 576–577.)
Lopez II faulted our previous opinion as having only “nodded” to the
duty to analyze harmlessness when we observed that the evidence supporting
Lopez’s first degree murder conviction was “overwhelming.”7 (Lopez II,
supra, 14 Cal.5th at p. 588.) Instead, we are to “essentially ask[] whether
any rational juror who made the findings reflected in the verdict and heard
the evidence at trial court could have had reasonable doubt regarding the
findings necessary to convict [Lopez] on a valid theory.” (Id. at p. 591.)
Lopez II instructs that we may hold the instructional error harmless
only if “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.” (Lopez II, supra, 14 Cal.5th at p. 568,

7 Lopez I referred to the “overwhelming” evidence supporting the

verdict in part to distinguish this case from People v. Brown (2016)
247 Cal.App.4th 211, upon which both the trial court and Lopez had relied.
Brown concluded that the Chiu error in that case was not harmless beyond a
reasonable doubt for what Lopez I characterized as three “unique” reasons,
one of which was that the evidence against the defendant in Brown was not
overwhelming. (Brown, supra, at pp. 215, 226–227.) Lopez I observed that
this was not the case here since “the evidence against [Lopez] was
overwhelming. He 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.” The Attorney General is
correct that this court’s observation was not conflating the standard for
evaluating the sufficiency of the evidence with the standard for reviewing
harmlessness under Chapman.

24
italics added.) “This test is exacting, and it requires much of a reviewing
court. . . . ‘If, at the end of [a thorough] 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.’ ” (Id. at p. 581.) We do not
become “ ‘ “in effect a second jury to determine whether the defendant is
guilty,” ’ ” but instead we “ ‘ask[] whether the record contains evidence that
could rationally lead to a contrary finding with respect to the omitted
element.’ ” (Ibid.) We likewise “must determine whether any rational jury
would have found [Lopez] guilty based on a valid theory if the jury had been
properly instructed.” (Id. at p. 584.) That is, we look at what we “can
determine, beyond a reasonable doubt, that any rational jury would surely
have found based on the verdict and the evidence here.” (Id. at p. 589.)
On the one hand, we have difficulty concluding that any rational jury
that had received valid aiding and abetting instructions would have reached
a different verdict based on the evidence here. (Lopez II, supra, 14 Cal.5th at
p. 584.) Extensive and largely uncontradicted evidence suggested that the
four gang members convicted of first degree murder premeditated and
planned to kill Gomez and understood and shared each other’s unlawful
purpose. Arming themselves with knives after they heard the whistle of a
rival gang coming from what was considered disputed gang territory, they
ran outside of the apartment where they had been socializing and chased
Gomez down a bicycle path that ran under a bridge toward a creek, where
Gomez received 38 to 40 stab wounds and had his pants pulled down. And
we know from the verdicts and special circumstance finding that Lopez, even
if he was only an aider an abettor and not the actual killer, formed an intent

25
to kill at some point during the incident. (§ 190.2, subd. (a)(22).) These facts
and circumstances suggest to us that it was highly likely that Lopez either
killed Gomez with deliberate premeditation or knew of the actual killer’s
unlawful purpose.
On the other hand, we cannot say it would have been “impossible,
based on the evidence” for the jury to have made the findings it made—
including the finding that Lopez acted with an intent to kill—without having
made the findings that would support a valid theory of liability. (Lopez II,
supra, 14 Cal.5th at p. 568, italics added.) Lopez II faulted Lopez I for failing
to have considered “whether a rational jury, having rendered the verdicts at
issue here, would necessarily have to believe the cited testimony [in Lopez I]
regarding Lopez, especially his bragging about the stabbing.” (Lopez II, at
p. 591, italics added.) On this point, we must allow that the jury could have
discounted this testimony no matter which theory it used to convict Lopez.
The prosecutor argued to the jury that Lopez’s participation in the killing of
Gomez would have benefited Lopez’s status as a Norteños gang member since
he was from an out-of-town subset of the gang. While it seems implausible,
the jury could have concluded that Lopez initially intended only to aid and
abet one of the target crimes, formed an intent to kill during the attack
without premeditation and deliberation, and later inflated his involvement in
the killing to boost his reputation as a gang member.
Lopez II instructs more generally that “[t]he evidence a [reviewing]
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. . . . 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

26
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 material.” ’ ” (Lopez II, supra, 14 Cal.5th at p. 591, quoting
Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67–68 [reversing order
granting new trial; testimony could not defeat proximate cause as a matter of
law since it was jury’s role to resolve conflicts in evidence and jurors could
believe some, but not all, testimony] and citing People v. Crooker (1956)
47 Cal.2d 348, 355 [no error not to give jury instruction on the right for a
defendant to have counsel throughout proceedings, including during custodial
interrogation, since a jury may accept as true some but not all of a witness’s
testimony].) “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.”
(Lopez II at p. 591.)
Under this standard, there is a scenario, however unlikely, that a jury
could have reached a verdict based on an invalid theory without making the
findings necessary for a valid theory of first degree premeditated murder.
Jurors could have found that Lopez aided and abetted one of the five target

27
crimes,8 and that the natural and probable consequence of the crime he aided
and abetted was first degree premeditated murder (CALJIC No. 3.02).
Jurors would not necessarily have had to find that Lopez knew and shared
the murderous intent of the actual perpetrator (cf. Lopez II, supra, 14 Cal.5th
at p. 585), just that first degree murder was a natural and probable
consequence of aiding and abetting one of the target crimes. Only after
reaching such a verdict on the invalid theory would jurors have considered
the gang-murder special circumstance. Their true finding on this allegation
established that the jury determined that Lopez either (1) “intentionally
killed the victim” (CALJIC No. 8.81.22) or (2) aided and abetted first degree
murder “ ‘with the intent to kill.’ ” (Lopez II, supra, 14 Cal.5th at p. 586.)
And the verdict form stated that jurors found that Lopez so acted while he
was an active participant in a criminal street gang. Again, though, jurors

8 Breach of the peace was defined as (1) a person willfully and

unlawfully fighting another person or challenging another person to fight and
(2) the fight or challenge occurring in a public space. (CALJIC No. 16.260.)
Assault was defined as (1) a person willfully and unlawfully committing an
act which by its nature would probably and directly result in the application
of physical force on another person, (2) the person committing the act was
aware of facts that would lead a reasonable person to realize that a result of
this act that physical force would be applied to another person, and (3) at the
time the act was committed, the person committing it had the ability to apply
physical force to another person. (CALJIC No. 9.00.) Battery was defined as
(1) a person using force or violence on another person and (2) the use was
willful and unlawful. (CALJIC No. 16.140.) Assault with a deadly weapon
was defined as (1) a person being assaulted and (2) the assault was
committed with a deadly weapon or instrument other than a firearm or by
means of force likely to produce great bodily injury. (CALJIC No. 9.02.) And
jurors were told that assault by means of force likely to produce great bodily
injury could be committed with hands or fists (which would apply to the fact
that the victim was found with his pants down), and there must be proof that
the manner of the assault was likely to produce great bodily injury on
another person. (CALJIC No. 9.02.)

28
were not required to find that Lopez shared the murderous intent of a direct
perpetrator if they found he aided and abetted a target crime. The jury could
have believed that Lopez (without a premeditated intent to kill) joined his
companions in chasing Gomez, that one of Lopez’s companions had a
premeditated intent to kill of which Lopez was unaware (but was the natural
and probable consequence of one of the target crimes he aided and abetted),
that Lopez aided the killer in one of the target offenses, and that Lopez only
formed an intent to kill during the altercation and without premeditation.
The Attorney General has not pointed to any facts in the record, nor
have we discovered any, that conclusively negate the possibility of the
foregoing scenario. In its supplemental briefing following remand, the People
stress that the special circumstance established that Lopez had a motive
based on his gang affiliation to murder Gomez, which supports a finding of
first degree murder. (E.g., People v. Gonzalez (2012) 54 Cal.4th 643, 663
[motive to kill is one of three categories relevant to determining
premeditation and deliberation].) According to the People, the Chiu error
was thus harmless if Lopez was also found to have planned the murder. But
it is not impossible for the jury to have concluded that Lopez only aided and
abetted his companions in attacking Gomez, without knowing that whoever
killed Gomez did so with deliberation and premeditation and without himself
having planned to murder Gomez.
The Attorney General relies on People v. Covarrubias (2016) 1 Cal.5th
838, which is distinguishable. There, jury instructions erroneously permitted
jurors to find the defendant guilty of felony murder based on entry into the
victims’ home with an intent to kill, without having to make the required
finding that the defendant entered the residence with an intent to steal or
commit a robbery. (Id. at p. 881.) Our Supreme Court concluded that the

29
error was harmless since the evidence established that the defendant went to
the victims’ home with an intent to both steal property and to kill anyone
present. (Id. at p. 883.) And the jury also convicted the defendant of robbery,
burglary, and conspiracy to commit burglary and robbery, and it found true a
robbery-felony-murder special circumstance. (Ibid.) Here, although there
was certainly evidence supporting the mens rea necessary to convict Lopez of
first degree premeditated murder, the jury made no separate finding that
necessarily established it.
The Attorney General also relies on People v. Gonzalez (2012)
54 Cal.4th 643, but that case is likewise distinguishable. Gonzalez involved a
complicated factual scenario where the defendant was accused of the
attempted murder of an intended victim, as well as the killing of an
accomplice (her boyfriend) under the provocative act doctrine. (Id. at p. 649,
654.) “Under the provocative act doctrine, when the perpetrator of a crime
maliciously commits an act that is likely to result in death, and the victim
kills in reasonable response to that act, the perpetrator is guilty of murder.”
(Id. at p. 655.) One sentence in the jury instructions gave the misimpression
that the defendant could be found to have acted with premeditation and
deliberation if either the defendant or an accomplice harbored that mental
state, as opposed to focusing solely on the defendant. (Id. at pp. 661–662.)
The Supreme Court concluded that the error was harmless. (Id. at p. 667.)
The evidence satisfied all the factors for premeditation and deliberation for
the attempted murder of the intended victim, as set forth in People v.
Anderson (1968) 70 Cal.2d 15, 26–27: (1) events before the murder indicating
planning, (2) motive, and (3) a method of killing that reflects a preconceived
design to kill. (Gonzalez at pp. 663–664.) Evidence of the defendant’s
planning and deliberation “was quite strong,” whereas evidence that the

30
accomplice alone intended a deadly outcome “was weak.” (Id. at p. 665.)
According to Gonzalez, a reviewing court is to focus “on proof beyond a
reasonable doubt that a rational jury would have found the defendant guilty
absent the [instructional] error.” (Id. at p. 666.) Because no rational jury
could have found that the defendant intended to murder the intended victim
but did not personally act with premeditation and deliberation, the
instructional error was harmless. (Ibid.) Here, though, there was no such
finding as to another victim that compels the conclusion that the jury
necessarily found that Lopez premeditated and deliberated or shared the
perpetrator’s murderous intent.
We agree with the Attorney General that People v. Anthony (2019)
32 Cal.App.5th 1102 shares striking similarities with this case. There, our
colleagues in Division Two concluded that Chiu error in a gang murder case
was harmless beyond a reasonable doubt based on reasoning similar to
Lopez I’s reasoning. The court relied in part on the same finding on the gang-
murder special circumstance (§ 190.2, subd. (a)(22), see Anthony at p. 1113)
and noted that such findings indicated that the defendants who aided and
abetted murder did so “with the intent to kill” and “not merely to assault” the
victim. (Anthony at p. 1146.) The court noted it would have been
“nonsensical” for jurors to conclude that the shooter acted with premeditation
and deliberation but was aided and abetted by “three defendants who did not
form the intent to kill until the murder occurred.” (Id. at p. 1146.) Still,
Anthony did not go so far as to hold that it would have been impossible to
conclude this, as Lopez II instructs. The Supreme Court denied review in
Anthony. (S255109, petn. rev. den. June 19, 2019.) But Lopez II does not cite
to Anthony even though the case was relied on heavily in the parties’

31
Supreme Court briefing. Thus, we decline to follow Anthony because we
cannot conclude that its analysis survives Lopez II.
Our conclusion that the error here was not harmless is consistent with
the Supreme Court’s recent opinion in In re Ferrell, supra, 14 Cal.5th 593,
another case involving alterative-theory error. (Id. at pp. 596–597.)
Witnesses in Ferrell observed the defendant shoot the victim, but conflicting
evidence was presented on which way the defendant’s arm was pointing, and
the defendant told police he shot the gun in the air. (Id. at pp. 597–598.)
Jurors at the defendant’s trial were instructed both with two valid theories of
second degree murder (express malice murder and implied malice murder)
and on a theory of second degree felony murder that was later invalidated
(felony murder based on the willful discharge of a firearm in a grossly
negligent manner). (Id. at pp. 599, 601–602.) The jury convicted the
defendant of second degree murder and also found true a sentencing
enhancement that he personally and intentionally discharged a firearm in
the commission of a felony and caused death (§ 12022.53, subd. (d)). (Ferrell,
at pp. 596, 603.) The Secretary of the Department of Corrections and
Rehabilitation argued that the finding on the enhancement, when considered
with the evidence presented at trial, established that the defendant must
have intentionally shot toward people and thus acted with sufficient malice to
establish implied-malice murder. (Id. at p. 604.)
The Supreme Court disagreed. Citing Lopez II and Aledamat, the court
summarized the standard of review for cases involving alternative-theory
instructional error as follows: “[W]e do not view the evidence supporting the
valid theory in the light most favorable to the prosecution, but instead
consider whether a reasonable jury, given the findings actually made and the
state of the evidence, could have found in favor of the defendant.” (In re

32
Ferrell, supra, 14 Cal.5th at pp. 604–605.) The court concluded that the
jurors could have reasonably rejected the theory that intentionally firing a
gun at people amounted to malice. (Id. at p. 605.) “[J]urors could have
concluded [the defendant] intentionally discharged his weapon but credited
[his] subjective belief he was pointing the gun to ‘the air’ the ‘whole time,’
never at people, and the shooting was accidental in this way.” (Ibid.) Taken
together, the jury’s findings and the evidence was consistent with the felony-
murder theory, and “it would not have been ‘ “impossible, upon the
evidence,” ’ for such a jury to reject implied malice and second degree murder
verdict based on that theory.” (Id. at p. 606.) Because it was not impossible
to have found what the verdict did find (an intentional discharge) without
also finding implied malice, and because a rational fact finder “could have
rejected malice and rendered a different verdict but for the erroneous felony
murder instructions, [the defendant’s] second degree murder conviction
[could ]not be affirmed by looking to the evidence.” (Id. at p. 608.)
Likewise here, it was not impossible for the jury to have found that
Lopez, with only an intent to commit one of the target offenses, joined the
other defendants who armed themselves with knives and chased someone
they believed to be affiliated with a rival gang in disputed territory, and only
later formed an intent to kill, without having premeditated, deliberated, or
shared the mental state of the actual killer. Because the People cannot
demonstrate beyond a reasonable doubt that the Chiu error was harmless,
the trial court correctly granted Lopez’s petition for a writ of habeas corpus.
IV.
DISPOSITION
The order granting Lopez’s petition for a writ of habeas corpus is
affirmed.

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 _________________________
Humes, P.J.

WE CONCUR:

_________________________
Banke, J.

_________________________
Bowen, J.*

*Judge of the Superior Court of the County of Contra Costa, assigned
by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.

In re Lopez A152748

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