Filed 12/8/21 P. v. Harris CA2/4

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

BERNARD JEROME HARRIS,

Defendant and Appellant.

 B306109

 (Los Angeles County

 Super. Ct. No. NA078478)

APPEAL from an order of the Superior Court of 

Los Angeles County, William C. Ryan, Judge. Reversed and 

remanded with directions.

Verna Wefald, under appointment by the Court of 

Appeal, for Defendant and Appellant.
2

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Idan Ivri and Thomas C. Hsieh, 

Deputy Attorneys General, for Plaintiff and Respondent.

_____________________________________________

INTRODUCTION

Shortly after appellant Bernard Jerome Harris asked 

two men whether they belonged to a rival gang, which was 

believed to be responsible for an earlier assault on Harris’s

fellow gang member Richard Theus, Theus opened fire on 

the two men and a third who had joined them, killing one. 

During opening statement at Harris and Theus’s trial, the 

prosecutor briefly mentioned that a former codefendant had 

pled guilty. The jury received instructions on a “direct” 

aiding and abetting theory and the natural and probable 

consequences doctrine, and convicted Harris of one count of 

murder and two counts of attempted murder. We affirmed 

in an unpublished opinion. (People v. Theus (May 18, 2011) 

2011 Cal.App.Unpub. LEXIS 3728 (Theus).) In concluding 

that Harris was not prejudiced by the prosecutor’s fleeting 

mention of his former codefendant’s guilty plea, we stated 

that his conduct before the shooting, viewed in the context of 

his alleged gang motive, “independently established” his 

“participation and intent to aid the shooting.” (Id. at *17-

*19.) We did not mention that the jury had been instructed 

on the natural and probable consequences doctrine.
3

After the enactment of Senate Bill No. 1437 (2017-2018 

Reg. Sess.) (SB 1437), Harris filed a petition for resentencing 

under newly enacted Penal Code section 1170.95 (Section 

1170.95), contending his convictions were invalid in the 

wake of SB 1437’s elimination of murder liability under the 

natural and probable consequences doctrine. The trial court 

issued an order to show cause and held an evidentiary 

hearing, at which the parties relied on the record of 

conviction. During the hearing, the court indicated it would 

deny Harris’s petition with respect to his attempted murder 

convictions, concluding Section 1170.95 did not apply to 

attempted murder. The prosecutor argued Harris was

ineligible for relief from his murder conviction as well, 

because the evidence at trial showed he was guilty under a 

direct aiding and abetting theory, which was unaffected by 

SB 1437. Neither the prosecutor nor the court mentioned 

the analysis in our Theus opinion. After taking the matter 

under submission, the court issued an order denying Harris’s 

petition in its entirety, stating that because we had “already 

deemed” him a direct aider and abettor in our Theus opinion, 

the prosecution had satisfied its burden to prove he could be 

convicted under a still-valid theory.

On appeal from the denial of his petition, Harris 

contends the trial court erred in: (1) relying solely on our 

Theus opinion to conclude the prosecution had met its 

burden to prove his ineligibility for relief beyond a 

reasonable doubt; and (2) concluding Section 1170.95 did not 

apply to attempted murder. The Attorney General disputes 
4

both contentions, and additionally contends the invited error 

doctrine and the forfeiture rule bar Harris from challenging 

the court’s exclusive reliance on our Theus opinion. After 

the appeal was fully briefed, the Governor signed into law 

Senate Bill No. 775 (2021-2022 Reg. Sess.) (SB 775), effective 

January 1, 2022. (See Cal. Const., art. IV, § 8, subd. (c)(2).) 

As amended by SB 775, Section 1170.95 expressly provides

for relief from attempted murder convictions under the 

natural and probable consequences doctrine. (Stats. 2021, 

ch. 551, § 2.) We allowed the parties to file supplemental 

briefs, in which they agree we should remand for further 

proceedings under SB 775. 

Considering only the law predating SB 775, we 

conclude the trial court erred in denying Harris’s petition 

with respect to his murder conviction. Neither the invited 

error doctrine nor the forfeiture rule bars Harris’s claim that 

the court erred in relying solely on our Theus opinion. 

Although the court’s reliance on it was understandable, our 

opinion’s analysis of prosecutorial error could not substitute 

for the trial court’s independent factfinding regarding 

Harris’s guilt under a still-valid theory. Accordingly, we 

reverse the order denying Harris’s petition, and remand to 

the trial court with directions to hold a new evidentiary 

hearing. In light of SB 775’s amendments concerning 

attempted murder, we additionally direct the court to hold 

the new evidentiary hearing after SB 775’s effective date of 

January 1, 2022, and to reconsider whether Harris is eligible 

for relief from his attempted murder convictions.
5

BACKGROUND

A. Trial

1. Opening Statement

The People charged Harris and Theus with the murder 

of Marcus Peters and the willful, deliberate, and 

premeditated attempted murders of Derick Holman and 

Aaron Thomas. (Theus, supra, 2011 Cal.App.Unpub. LEXIS 

3728, at *1.) During the prosecutor’s opening statement, he 

told the jury that Harris and Theus arrived at the scene of 

the charged offenses in a car driven and owned by Ryan 

Scott, who “was a third defendant in this case and has since 

pled out, so that’s why he’s not here.” (Id. at *13.) The trial 

court denied Harris’s requests for a mistrial and a special 

curative instruction in response to the prosecutor’s mention 

of Scott’s guilty plea. (Id. at *13-*14.) However, the court 

ordered the prosecutor not to mention Scott’s plea again, and 

twice instructed the jury that what the attorneys said was 

not evidence, and that the jury was required to base its 

decision on facts determined by evidence. (Id. at *14, *17.) 

2. Evidence

The parties stipulated that Harris and Theus belonged 

to the Boulevard Crips gang, which the prosecution gang 

expert, Detective Chris Zamora, identified as a rival of the 

Sex Money Murder gang. (Theus, supra, 2011 

Cal.App.Unpub. LEXIS 3728, at *10.) In the afternoon of 

May 30, 2007, Theus and a companion were riding their 

bicycles in an area of Long Beach claimed by Sex Money 
6

Murder. (Id. at *3.) Three unidentified men -- who were 

members of Sex Money Murder, in Detective Zamora’s 

opinion -- assaulted Theus and his companion, and took their 

bicycles. (Id. at *4, *10.) 

That evening, Derick Holman and Marcus Peters were 

walking to a gas station in Long Beach. (Theus, supra, 2011 

Cal.App.Unpub. LEXIS 3728, at *4.) Holman noticed Theus 

walking near an alley, “‘looking kind of suspicious.’” (Id. at 

*4, *6.) Holman and Peters continued to the gas station. 

(Id. at *4.) While they were in the station lot, a silver car --

which Holman identified as a car owned by Harris’s former 

codefendant Ryan Scott -- drove up. (Id. at *4, *6.) Harris 

got out of the vehicle and approached. (Ibid.) Harris asked 

Holman and Peters if they were members of Sex Money 

Murder. (Ibid.) They replied they were not.1(Id. at *4.) 

A few minutes after their encounter with Harris, as 

they walked down the street, Holman and Peters were joined 

by Aaron Thomas. (Theus, supra, 2011 Cal.App.Unpub.

LEXIS 3728, at *4.) As the three men stood together on the 

sidewalk, a silver car approached. (Id. at *4.) Theus got out 

1

Surveillance video from the gas station confirmed the 

presence of Holman, Peters, another individual (wearing a 

sweatshirt), and a silver car. (Theus, supra, 2011

Cal.App.Unpub. LEXIS 3728, at *4-*5.) After Holman identified 

Harris in a photographic lineup, police officers executed a search 

warrant at Harris’s apartment and seized a sweatshirt, which 

Holman testified looked like the one Harris had worn at the gas 

station. (Id. at *5.)
7

of the vehicle and fired multiple rounds at them from a 

handgun. (Id. at *4, *6.) Peters was killed, and Holman was 

shot three times (Thomas escaped injury). (Id. at *4.) 

Holman and Thomas denied that they were gang 

members, but Holman acknowledged he associated with 

members of Sex Money Murder. (Theus, supra, 2011 

Cal.App.Unpub. LEXIS 3728, at *6-*7.) Detective Zamora 

testified that Peters also had been affiliated with Sex Money 

Murder. (Id. at *10.) Detective Zamora opined that the 

shooting was payback for the earlier assault on Theus. (Id.

at *10.) Evidence was presented that during a recorded 

custodial interview, Theus’s companion during the assault

told detectives that Theus had admitted shooting some men 

as payback. (Id. at *7-*8.) 

A deputy sheriff testified that five days before trial 

began, inside the lockup area of the courthouse, Harris 

asked the deputy to retrieve for him a folder he had left 

behind when entering the courtroom, but bailiffs informed 

the deputy the folder had been left by Theus. (Theus, supra, 

2011 Cal.App.Unpub. LEXIS 3728, at *8-*9.) Inside the 

folder, the deputy found a greeting card addressed to Harris, 

containing a folded letter. (Id. at *9.) The author of the 

letter identified himself as “‘2 Pistols,’” and wrote that 

“‘G-Rich’” (Theus’s nickname) was his “‘lil fam Bam.’” (Ibid.) 

The letter went on to state in part: “‘I don’t like what [I’]m 

hearing. I went to court the other day and I hear[]d a nigga 

say G-Rich is snitchin, so I got at cuzz and told cuzz G-Rich 

is my lil c[o]usin[.] Why is you speakin up on cuzz if you 
8

have[n’t] seen any paper work and cuzz said that’s what he 

heard. But anyway let cuzz keep the paperwork so he can 

clear his name up. . . . But clear cuzz name up, let niggas 

know he ain’t snitchin. But if cuzz is snitchin then you know 

he’s a grown man, he got to deal with it. . . .’” (Id. at *9.)

3. Convictions

The jury convicted Harris and Theus of the first degree 

murder of Peters and the attempted murders of Holman and 

Thomas, which the jury found to be willful, premeditated, 

and deliberate. (Theus, supra, 2011 Cal.App.Unpub. LEXIS 

3728, at *1.) The jury found true, inter alia, an allegation 

that the crimes were committed for the benefit of a criminal 

street gang. (Id. at *1-*2.) Harris was sentenced to 

imprisonment for 105 years to life, plus 20 years. (Id. at *3.)

B. Our Theus Opinion

On Harris’s and Theus’s direct appeals, we affirmed 

the judgment. (Theus, supra, 2011 Cal.App.Unpub. LEXIS 

3728, at *35-*36.) We rejected Harris’s contention (joined by 

Theus) that the trial court prejudicially erred by denying 

Harris’s requests for a mistrial and a special curative 

instruction in response to the prosecutor’s reference in 

opening statement to the guilty plea of Ryan Scott (Harris’s 

former codefendant and the owner of the car Holman said he 

saw at the gas station). (Id. at *3, *13.) Although we agreed 

that the prosecutor erred by mentioning Scott’s plea, we 
9

concluded, as described below, that Harris was not 

prejudiced. (Id. at *16-*17.) 

As an initial matter, we rejected Harris’s assertion that 

the error rendered his trial fundamentally unfair, noting 

that the prosecutor’s single comment was “fleeting.” (Theus, 

supra, 2011 Cal.App.Unpub. LEXIS 3728, at *17.) We 

proceeded to conclude, for several reasons, that Harris had 

failed to show a reasonable probability that he would have 

obtained a more favorable outcome but for the prosecutor’s 

comment. (Ibid.) “First, . . . the reference to Scott’s plea 

occurred once and was extremely brief. Second, the jury was 

instructed twice [and was presumed to have understood] 

that it was to base its decisions on the facts, that the facts 

were to be determined by the evidence, and that statements 

made by the attorneys were not evidence. . . . Third, 

notwithstanding appellants’ claim otherwise, the evidence of 

their guilt in the Peters killing was strong.” (Id. at *17-*18.)

We elaborated on the strength of the evidence against 

Harris as follows: “Harris’s involvement was established by 

Holman’s identification, which was bolstered by the video 

from the gas station. Harris asserts that but for Scott’s link 

as the driver of the vehicle, the jury could have concluded 

that Harris’s presence was mere “‘“happenstance.”’” We are 

not persuaded. The gang motive was compelling. 

Appellants and the victims were members or affiliates of 

rival gangs. Theus was the victim of an attack in rival gang 

territory hours before the shooting and the Peters killing 

was in retaliation for that attack. The motive puts Harris’s 
10

approach of Peters and Holman in the gas station in context. 

He confronted them and asked their gang affiliation. 

Minutes later, Theus shot at Peters, Holman, and Thomas. 

Harris’s participation and intent to aid the shooting is 

independently established by his conduct. Finally, Theus 

attempted to communicate with Harris in the courthouse 

shortly before trial. In the letter that was confiscated, the 

author tried to allay Harris’s fear that his codefendant 

[Theus] was a snitch. If Harris were simply an innocent 

bystander who happened to be in Scott’s vehicle on the night 

of the shooting, why would he be concerned that Theus was a 

snitch? The answer is clear. Theus could potentially provide 

damaging information linking Harris to the crime.” (Theus, 

supra, 2011 Cal.App.Unpub. LEXIS 3728, at *18-*19, italics 

added.) We concluded, “After considering the totality of the 

circumstances, we are satisfied that appellants would not 

have received a more favorable verdict in the absence of the 

prosecutor’s single comment made during opening 

statement.” (Id. at *19.) 

C. The Instant Petition

1. Petition and Order to Show Cause

In January 2019, Harris filed a petition for relief under 

Section 1170.95, alleging he had been convicted under the 

natural and probable consequences doctrine, and could not 
11

be convicted in the wake of SB 1437.

2 Harris attached an 

instruction the jury had received on the natural and 

probable consequences doctrine, which read, in relevant 

part: “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. [¶] In order to find the 

defendant guilty of the crimes of murder and attempted 

murder, as charged in counts 1, 2, and 3, you must be 

satisfied beyond a reasonable doubt that: [¶] 1. The crime or 

crimes of murder and attempted murder were committed; [¶] 

2. That the defendant aided and abetted those crimes; [¶] 

3. That a co-principal in that crime committed the crimes of 

murder and attempted murder; and [¶] 4. The crimes of 

murder and attempted murder were a natural and probable 

consequence of the commission of the crime of murder.”

(Italics added.) Harris also attached an excerpt from the 

transcript of closing arguments, in which the prosecutor told 

2

Before SB 1437 amended Penal Code sections 188 and 189 

to eliminate murder liability under the natural and probable 

consequences doctrine, that doctrine “made ‘a person who aids 

and abets a confederate in the commission of a criminal act . . . 

liable not only for that crime (the target crime), but also for any 

other offense (nontarget crime) [including murder] committed by 

the confederate as a “natural and probable consequence” of the 

crime originally aided and abetted.’” (People v. Johns (2020) 50 

Cal.App.5th 46, 57-58.)
12

the jury (consistent with the first paragraph of the

instruction) that an aider and abettor is guilty not only of 

the crimes originally aided and abetted, but also of any other 

crime committed by a principal as a natural and probable 

consequence thereof. At Harris’s request, the trial court 

appointed counsel for him. 

In a written opposition (citing no evidence other than 

the trial transcripts), the prosecution argued the jury 

necessarily had found Harris acted with the intent to kill, 

rendering him ineligible for relief from his murder and 

attempted murder convictions, because even the instruction 

on the natural and probable consequences doctrine had 

required such a finding (by identifying the target crimes as 

murder and attempted murder). In reply, Harris argued 

that because the instruction on the natural and probable 

consequences doctrine was confusing in asking the jury to 

determine whether murder and attempted murder were

natural and probable consequences of murder, and because

the trial prosecutor had argued the doctrine to the jury, the 

prosecution could not prove beyond a reasonable doubt that 

the jury had found intent to kill or otherwise convicted him 

under a still-valid theory. Harris additionally argued that 

Section 1170.95 applied to attempted murder. 

In September 2019, the court issued an order for the 

prosecution to show cause why “the relief requested in the 

petition” should not be granted. 
13

2. Evidentiary Hearing 

In February 2020, the court held an evidentiary 

hearing on Harris’s eligibility for relief. Neither party 

sought to introduce evidence during the hearing. 

Harris’s counsel characterized the issue for the court’s 

determination as whether the prosecution had proved 

beyond a reasonable doubt, “based upon the submission of 

the [trial] transcript and no other evidence,” that a still-valid 

theory to support Harris’s convictions “exist[ed] within that 

transcript.” Counsel argued that because the jury had been 

instructed on the natural and probable consequences 

doctrine, the prosecution could not meet its burden “based 

upon the transcript” to prove beyond a reasonable doubt that 

Harris shared Theus’s intent to kill. The court observed that 

Harris was not the shooter, and commented, “I couldn’t tell 

from what I know of the facts, without reading all of the 

transcripts -- which I’ve not yet done -- what your client’s 

role [was]. I was having a hard time figuring [that] out, 

other than maybe he was in the car [from which the shooter 

emerged].” Counsel argued there was no evidence that 

Harris was in the car when it arrived at the scene of the 

shooting, or that Harris shared Theus’s intent to kill. 

The prosecutor argued Harris was ineligible for relief 

because he could still be convicted of first degree murder as a 

direct aider and abettor.3The prosecutor argued Harris 

3

In the alternative, the prosecutor renewed his argument 

that Harris was ineligible for relief because the jury had been 

(Fn. is continued on the next page.)
14

shared Theus’s intent to kill the victims in retaliation for the 

earlier assault on Theus by members of Sex Money Murder, 

as evidenced by Harris’s asking Holman and Peters whether 

they belonged to Sex Money Murder, before allegedly 

entering the same silver car from which Theus soon emerged 

to shoot the victims. The court observed that although there 

was evidence Harris arrived at the gas station in a car 

similar to the car from which Theus emerged, Harris had 

never been identified as “being in the car that the shooter 

got out of.” The prosecutor confirmed this was correct. 

When asked to identify evidence that Harris was involved in 

the shooting, the prosecutor reiterated that Harris entered 

the “same” car used by the shooter, and the court responded, 

“Which [Harris’s counsel] disputes, and I’ll have to look and 

see what the evidence actually says.” In response to further 

inquiries from the court, the prosecutor said he did not recall 

how much time passed between Holman’s sightings of a 

silver car at the gas station and at the scene of the nearby 

shooting, but agreed that the time was longer than “a quick 

run around the block.” The prosecutor further agreed that 

there was no direct evidence (either testimony or video) 

placing Harris in the car at the time of the shooting. Neither 

required, even under its instruction on the natural and probable 

consequences doctrine, to find Harris acted with intent to kill. In 

response to inquiries from the court, the prosecutor agreed the 

instruction was “nonsensical” in asking the jury to determine 

whether murder (or attempted murder, a lesser included offense)

was a natural and probable consequence of murder. 
15

the prosecutor nor the court mentioned the analysis in our 

Theus opinion. 

In rebuttal, Harris’s counsel stated, “[T]he court knows 

the facts. The prosecutor accurately stated them to the 

court.” He argued, “The court has directly and correctly 

evaluated the facts, those are the facts. There is no proof 

beyond a reasonable doubt of an intent to kill on Mr. Harris’s 

part.” When counsel began to discuss Harris’s convictions 

for attempted murder, the court interjected that “the state of 

the law now is that SB 1437 does not apply to attempted 

murder.” The court took the matter under submission. 

3. Ruling

In April 2020, the court denied Harris’s petition in a 

memorandum of decision. The court observed the 

prosecution had argued Harris was guilty as a direct aider 

and abettor, and had directed the court’s attention to our 

Theus opinion, “which summarized the evidence presented 

at trial: that Petitioner and the victim were members of rival 

gangs; that Petitioner’s co-defendant Theus was ‘a victim of 

an attack in rival gang territory hours before the shooting;’ 

and that the murder was retaliation for that attack.” The 

court continued, “The Court of Appeal found the gang motive 

and Petitioner’s conduct prior to the shooting established his 

‘participation and intent to aid the shooting.’ (People v. 

Theus, supra, [2011 Cal.App.Unpub. LEXIS 3728,] at 

p. [18].) This indicates that Petitioner could have been found 

guilty of first-degree murder based on the viable legal theory 
16

that he directly aided and abetted Theus in shooting and 

killing the victim. [¶] Petitioner argues that because 

Petitioner was convicted on a natural and probable 

consequences theory of liability, the People must show ‘on 

the evidence presented he could have been convicted under 

current law.’ [Citation.] As stated, ante, the Court of Appeal 

already deemed Petitioner as [sic] an aider and abettor. 

Accordingly, that is a viable legal theory based on [Penal 

Code] section 188 of which Petitioner could have been 

convicted. Therefore, because the People have met their 

burden, and [sic] the petition must be denied.” 

Harris timely appealed. 

 

DISCUSSION

With respect to his murder conviction, Harris contends 

the trial court erred in relying solely on our Theus opinion to 

conclude the prosecution met its burden to prove his 

ineligibility for relief under Section 1170.95 beyond a 

reasonable doubt. With respect to his attempted murder 

convictions, Harris contends the court erred by concluding 

Section 1170.95 did not apply to attempted murder. The 

Attorney General disputes both contentions, and 

additionally contends the invited error doctrine and the 

forfeiture rule bar Harris from challenging the court’s 

exclusive reliance on our Theus opinion. 
17

A. Section 1170.95

Section 1170.95 permits a defendant who was 

convicted of murder under a natural and probable 

consequences theory, but who could not be convicted of 

murder following SB 1437’s changes to the law, to petition 

the sentencing court to have the murder conviction vacated 

and to be resentenced on any remaining counts. (Pen. Code, 

§ 1170.95, subd. (a).) Where, as here, the trial court finds 

the petitioner has made a prima facie showing of eligibility 

for relief, and the parties do not stipulate to relief after 

issuance of an order to show cause, the court must hold an 

evidentiary hearing on the petitioner’s eligibility for relief. 

(Id., § 1170.95, subds. (c)-(d).) “At the hearing to determine 

whether the petitioner is entitled to relief, the burden of 

proof shall be on the prosecution to prove, beyond a 

reasonable doubt, that the petitioner is ineligible for 

resentencing.” (Id., § 1170.95, subd. (d)(3).) In determining 

whether the prosecution has proved beyond a reasonable 

doubt the petitioner could be convicted under a still-valid 

theory, the court must independently find the petitioner 

guilty under such a theory.

4 (See People v. Fortman (2021) 

4

SB 775 amends subdivision (d)(3) of Section 1170.95 to 

include the following language, which reinforces the trial court’s 

duty to independently find the petitioner’s guilt beyond a 

reasonable doubt: “the burden of proof shall be on the 

prosecution to prove, beyond a reasonable doubt, that the 

petitioner is guilty of murder or attempted murder under 

California law as amended by [SB 1437] . . . . A finding that 

(Fn. is continued on the next page.)
18

64 Cal.App.5th 217, 225 (Fortman), review granted July 21, 

2021, S269228 [“the People must convince the trial court, as 

an independent trier of fact, that the petitioner is guilty of 

murder on a still-valid theory beyond a reasonable doubt”];

accord, People v. Clements (2021) 60 Cal.App.5th 597, 615, 

review granted April 28, 2021, S267624; People v. Rodriguez

(2020) 58 Cal.App.5th 227, 243-244, review granted March 

10, 2021, S266652; People v. Lopez (2020) 56 Cal.App.5th 

936, 952, review granted Feb. 10, 2021, S265974; People v. 

Duchine (2021) 60 Cal.App.5th 798, 815.) 

“The prosecutor and the petitioner may rely on the 

record of conviction or offer new or additional evidence to 

meet their respective burdens.” (Pen. Code, § 1170.95, subd. 

(d)(3).) “[A]n appellate opinion [affirming the petitioner’s 

conviction] is part of the record of conviction and may be 

relied on in deciding a section 1170.95 petition on the merits 

. . . .” (People v. Clements, supra, 60 Cal.App.5th at 603, rev. 

gr.; see also People v. Lewis (2021) 11 Cal.5th 952, 972.) 

“However, as [our Supreme Court] cautioned in [People v.] 

there is substantial evidence to support a conviction for murder, 

attempted murder, or manslaughter is insufficient to prove, 

beyond a reasonable doubt, that the petitioner is ineligible for 

resentencing.” (Stats. 2021, ch. 551, § 2.) In light of this added

language, the Attorney General states in his supplemental brief

that the trial court applied an incorrect standard of proof. We 

note Harris did not contend the court applied an incorrect 

standard of proof, instead contending the court erred -- regardless 

of the standard of proof it applied -- by relying solely on our 

Theus opinion. 
19

Woodell [(1998) 17 Cal.4th 448, 457], the probative value of 

an appellate opinion is case-specific, and ‘it is certainly 

correct that an appellate opinion might not supply all 

answers.’”5 (People v. Lewis, supra, 11 Cal.5th at 972; see 

also People v. Clements, supra, 60 Cal.App.5th at 613, rev. 

gr.)

B. Invited Error and Forfeiture

The Attorney General contends the invited error 

doctrine and the forfeiture rule bar Harris from challenging 

the trial court’s exclusive reliance on our Theus opinion. The 

Attorney General principally relies on Harris’s counsel’s 

statements, in his rebuttal argument, that the prosecutor 

had accurately stated the facts, and the court had correctly

evaluated them. “The invited error doctrine bars appellate 

review of any error which trial counsel deliberately and

consciously, as a matter of trial tactics, induced the trial 

court to make.” (People v. Hall (2018) 23 Cal.App.5th 576, 

588, fn. 6.) Under the forfeiture rule, “[o]rdinarily, a 

criminal defendant who does not challenge an assertedly 

5

SB 775 amends subdivision (d)(3) of Section 1170.95 to 

delete its reference to “the record of conviction,” and to add, inter 

alia, the following language: “The court may also consider the 

procedural history of the case recited in any prior appellate

opinion.” (Stats. 2021, ch. 551, § 2.) In their supplemental briefs, 

the parties disagree regarding the meaning of this added 

language. Because we need not rely on this language, we express 

no opinion as to its meaning.
20

erroneous ruling of the trial court in that court has forfeited 

his or her right to raise the claim on appeal.” (In re Sheena 

K. (2007) 40 Cal.4th 875, 880.) But where the defendant 

receives no meaningful opportunity to challenge the ruling 

in the trial court, the forfeiture rule does not apply. (See

People v. Gonzalez (2003) 31 Cal.4th 745, 752 [in absence of 

meaningful opportunity to object to trial court’s 

discretionary sentencing choices, failure to object does not 

forfeit appellate challenge]; People v. Jenkins (2000) 22 

Cal.4th 900, 1000 [general rule of forfeiture applies “‘“where 

an objection could have been, but was not presented to the 

lower court by some appropriate method”’” (italics added)].)

We conclude neither the invited error doctrine nor the 

forfeiture rule bars Harris’s claim on appeal. During the 

hearing, Harris’s counsel encouraged the court to rely on the 

trial transcripts. The prosecutor relied on the evidence at 

trial, and the court vigorously questioned him about it. 

Neither the prosecutor nor the court even mentioned the 

analysis in our Theus opinion. In this context, Harris’s 

counsel’s statements in rebuttal did not reflect a strategic 

decision to induce the court to rely solely on our opinion, as 

necessary to support application of the invited error 

doctrine. (See People v. Hall, supra, 23 Cal.App.5th at 588, 

fn. 6; People v. Stitely (2005) 35 Cal.4th 514, 553, fn. 19 

[invited error doctrine did not bar defendant’s challenge to 

trial court’s withholding of jury instruction, where court’s 

decision to withhold instruction “was not induced by 

defendant, but by the court’s unwavering belief that the 
21

instruction lacked evidentiary support,” and there “seem[ed] 

to be no plausible tactical reason” why defendant would 

induce court to withhold instruction].) Moreover, Harris’s 

counsel lacked a meaningful opportunity to object to the 

asserted error, as the prosecutor did not urge the court to 

rely solely on our opinion, and the court did not suggest it 

intended to do so. On the contrary, as the Attorney General 

acknowledges, “The record [of the hearing] supports the 

inference that the trial court read part of the trial 

transcripts prior to the evidentiary hearing and intended to 

read all of the transcripts before issuing a written ruling.” 

In the absence of a meaningful opportunity to challenge the 

court’s exclusive reliance on our opinion, Harris’s counsel’s 

failure to do so did not forfeit Harris’s claim on appeal. (See

People v. Gonzalez, supra, 31 Cal.4th at 752; People v. 

Jenkins, supra, 22 Cal.4th at 1000.) 

C. Merits

The trial court erred in relying solely on our Theus

opinion in determining that the prosecution had proved

beyond a reasonable doubt that Harris could be convicted as 

a direct aider and abettor, and was therefore ineligible for 

relief under Section 1170.95. We cannot fault the court for 

relying on the opinion’s unequivocal statement, “Harris’s 

participation and intent to aid the shooting is independently 

established by his conduct.” (Theus, supra, 2011 

Cal.App.Unpub. LEXIS 3728, at *18.) But understood in its 

context, this statement had little or no probative value in 
22

proceedings under Section 1170.95. (See People v. Lewis, 

supra, 11 Cal.5th at 972; see also People v. Clements, supra, 

60 Cal.App.5th at 613, rev. gr.) We made this statement in 

the course of reasoning that the evidence of Harris’s guilt 

was sufficiently strong, in conjunction with two other factors 

on which we relied, to support our holding that Harris had 

not shown a reasonable probability he would have obtained a 

more favorable outcome had the trial prosecutor not made 

fleeting mention of his former codefendant’s guilty plea. 

(Theus, supra, at *18.) We were merely assessing the 

probability that the prosecutor’s error affected the outcome 

of the trial -- not making a factual finding of Harris’s guilt as 

a direct aider and abettor beyond a reasonable doubt. (See 

People v. Merritt (2017) 2 Cal.5th 819, 830-832 [our Supreme 

Court was “not engaging in appellate factfinding” by 

concluding instructional error was harmless beyond a 

reasonable doubt, despite reasoning in part that prosecution 

evidence was “overwhelming”].) Although the trial court was 

entitled to make such a finding, it was required to act as an 

independent factfinder in doing so. (See, e.g., Fortman, 

supra, 64 Cal.App.5th at 225, rev.gr.) The court improperly 

relied on our analysis of prosecutorial error as a substitute 

for an independent exercise of its factfinding functions. 

The Attorney General does not argue the court was 

entitled to rely solely on our analysis. Instead, he argues the 

court properly relied on our opinion only as an accurate 

summary of the trial evidence, which the court 

independently found established Harris’s guilt as an aider 
23

and abettor beyond a reasonable doubt. The record does not

support the Attorney General’s reading. Although the court 

had vigorously questioned the prosecutor about the trial 

evidence during the hearing, the court did not discuss the 

evidence in its memorandum of decision. Nor did the court

expressly or implicitly agree with our characterization of the 

evidence. Instead, in stating that the prosecution had 

proved Harris could be convicted under a direct aiding and 

abetting theory because we already had deemed him a direct 

aider and abettor, the court merely substituted our 

characterization of the evidence for its own evaluation. That 

was error. (See, e.g., Fortman, supra, 64 Cal.App.5th at 225, 

rev.gr.) Accordingly, we will remand for an independent 

exercise of the trial court’s factfinding functions. 

We need not decide whether the court erred in 

concluding that at the time it issued its ruling, Section 

1170.95 did not apply to attempted murder. By the time the 

court holds a new evidentiary hearing, SB 775’s 

amendments to Section 1170.95 will be in effect. (See Cal. 

Const., art. IV, § 8, subd. (c)(2).) As amended, Section 

1170.95 expressly applies to convictions for attempted 

murder under the natural and probable consequences 

doctrine. (Stats. 2021, ch. 551, § 2 [amending subdivision (a) 

of Section 1170.95 to read, in relevant part, “A person 

convicted of . . . attempted murder under the natural and 

probable consequences doctrine . . . may file a petition with 

the court that sentenced the petitioner to have the 
24

petitioner’s . . . attempted murder . . . conviction vacated and 

to be resentenced on any remaining counts”].) 

In his supplemental brief, the Attorney General 

suggests we should direct the trial court to consider whether 

Harris is entitled to an order to show cause with respect to 

his attempted murder convictions, asserting the court did 

not consider the issue. But the court implicitly did consider 

the issue, as it ordered the prosecution to show cause why 

the court should not grant “the relief requested in the 

petition” -- which included relief from the attempted murder 

convictions. Accordingly, we will direct the court to hold the 

new evidentiary hearing after SB 775’s effective date of 

January 1, 2022, and to reconsider at that hearing whether 

Harris is eligible for relief from his attempted murder 

convictions.
25

DISPOSITION

The order denying Harris’s petition for resentencing 

under Penal Code section 1170.95 is reversed. The matter is 

remanded to the trial court with directions to hold a new 

evidentiary hearing, after SB 775’s effective date of January 

1, 2022, on Harris’s eligibility for relief from his murder and 

attempted murder convictions.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

 MANELLA, P. J.

We concur:

WILLHITE, J.

CURREY, J.