FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARVIN VERNIS SMITH,

Petitioner-Appellee,

v.

RAUL LOPEZ, Warden,

Respondent-Appellant.

No. 12-55860

D.C. No.

8:11-cv-01076-ODW-MRW

OPINION

Appeal from the United States District Court

for the Central District of California

Otis D. Wright II, District Judge, Presiding

Argued and Submitted

March 6, 2013—Pasadena, California

Filed September 23, 2013

Before: Sidney R. Thomas and Andrew D. Hurwitz, Circuit

Judges, and Ralph R. Beistline, Chief District Judge.*

Opinion by Judge Thomas

* The Honorable Ralph R. Beistline, Chief District Judge for the U.S.

District Court for the District of Alaska, sitting by designation.
2 SMITH V. LOPEZ

SUMMARY**

Habeas Corpus

The panel affirmed the district court’s conditional grant

of a 28 U.S.C. § 2254 habeas corpus petition claiming that

petitioner was denied his right to notice of the nature of the

accusations against him when the trial judge gave an aidingand-abetting jury instruction.

The panel explained that, although the criminal

information charging petitioner with first-degree murder was

initially sufficient to put him on notice that he could be

convicted either as a principal or as an aider-and-abettor, the

prosecution’s conduct throughout the pretrial and trial

proceedings affirmatively led petitioner to believe that the

prosecution would not rely on an aiding-and-abetting liability

theory. The panel held that the aiding-and-abetting jury

instruction, given only after the prosecution requested it at the

jury instructions conference, violated petitioner’s right to

notice of the nature of the charges against him, as well as the

right to prepare a defense. The panel held that the error was

not harmless.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
SMITH V. LOPEZ 3

COUNSEL

Kamala Harris, Attorney General, Julie L. Garland, Senior

Assistant Attorney General, Kevin Vienna, Supervising

Deputy Attorney General, Robin Urbanski (argued), Deputy

Attorney General, San Diego, California, for RespondentAppellant.

Dennis P. Riordan (argued), Donald M. Horgan, and Gary K.

Dubcoff, Riordan & Horgan, San Francisco, California, for

Petitioner-Appellee.

OPINION

THOMAS, Circuit Judge:

In this appeal, we consider whether a habeas petitioner’s

constitutional right to notice of the nature of the accusations

against him was violated. We agree with the district court

that it was, and we affirm the judgment granting federal

habeas relief.

I

A

On the evening of December 15, 2005, police officers

went to the home of Marvin and Minnie Smith in response to

Marvin Smith’s 911 call reporting a burglary in progress. In

the upstairs bedroom, the police found Minnie Smith’s body

on the floor. She had been killed by a crushing blow to her

head from a fireplace log roller, and her body had other

injuries that may have been inflicted before her death. Her
4 SMITH V. LOPEZ

hands were bound by a wire clothes hanger, and her feet had

been bound by a strip of duct tape that was found near the

body. Parts of the house appeared to have been ransacked,

and valuable jewelry was missing from the bedroom.

Several weeks later, Smith was arrested for the murder of

his wife. A felony complaint charged Smith with “unlawfully

and with malice aforethought kill[ing] MINNIE SMITH” in

violation of California Penal Code § 187(a).

At the preliminary examination hearing, the prosecution

presented the testimony of Detective Christopher McShane. 

Detective McShane testified that he had interviewed David

Moraga, Smith’s cell mate for six months, and that Moraga

had told Detective McShane that Smith made incriminating

statements while they were celled together:

Q. And did [Moraga] indicate to you whether

Marvin Smith had told him anything about

the killing of Minnie Smith?

A. Yes.

Q. What did [Moraga] say to you he’d heard

from Marvin Smith?

A. He said that Marvin had told him that he

had to get rid of his wife because she was

standing in the way of his future plans;

that she was threatening to divorce him

and he wasn’t going to give up half of his

property he worked so hard for his entire

life. Said on the day of the murder he had

left the house earlier than he normally
SMITH V. LOPEZ 5

does, that he left, he took the jewelry and

the money out of the safe with him. He

staged it to look like a home invasion

robbery. He left a window open. He

exited the house without setting the alarm. 

He went through the front door of the

house, and that he went to work that day.

On cross-examination, Detective McShane admitted that

Moraga was vague on the details of the murder:

Q. Did Mr. Moraga, Detective, tell you the

manner in which the killing was carried

out?

A. He said that she was beat up real bad.

Q. Did he give any further details?

A. No.

[ . . . ]

Q. And [Moraga] didn’t really have any

information about who specificallydid the

homicide, did he?

A. Marvin never told him specifically who

did it, no. . . .

[ . . . ]
6 SMITH V. LOPEZ

Q. [Moraga] didn’t know any of the details of

the homicide itself and how it was carried

out, correct?

A. Correct.

Q. Did he tell you that the homicide was

committed before Mr. Smith left the house

or was he vague on that point?

A. He was vague.

The court found probable cause to trySmith on the charge

in the felony complaint, and the district attorney then filed an

information reciting the same charge of first-degree murder.

At Smith’s trial, the prosecutor said in his opening

statement that “the evidence will show that that man over

there at the end of counsel table, wearing the nice sweater,

murdered his wife of 27 or 28 years, and then he staged the

crime scene to make it look like a burglary and to avoid

detection.” Later, the prosecutor said that “the evidence will

show” that “the defendant bludgeoned [Minnie Smith] to

death, bound her arms behind her with a wire coat hanger,

and then staged the scene to look like a burglary.” The

prosecution asserted that Smith killed his wife because he did

not want to divide his substantial assets with her in the event

of a divorce.

In the middle of the prosecution’s opening statement,

defense counsel learned that Moraga had refused to testify. 

During a recess, Moraga’s attorney told the court that his

client would invoke his Fifth Amendment privilege if called

to the stand. The judge concluded that it was unlikely
SMITH V. LOPEZ 7

Moraga would testify and ordered the parties not to discuss

the prospect of his testimony in their opening statements. 

The trial judge also granted defense counsel’s request to

delay her opening statement for nearly two weeks, agreeing

that Moraga’s potential testimony had been significant and

that the defense should be given an opportunity to reengineer

its opening statement to remove references to Moraga.

In her opening statement, defense counsel offered two

reasons why Smith could not have killed his wife. First, she

told the jury that the evidence would show that Smith’s

whereabouts were accounted for at the time of his wife’s

murder. Second, she said that the evidence would show that

Smith was physically incapable of bludgeoning his wife to

death with a heavy fireplace tool because of major shoulder

surgery he had undergone a few weeks before the murder. 

She also told the jury that “there may be evidence that points

to other people, but you won’t be able to put it all together

and know who did it.”

In its presentation, the prosecution called over forty

witnesses and offered over 220 exhibits. The prosecution

presented evidence that Smith was unfaithful to his wife for

many years, that his wife was threatening to divorce him, and

that he told one of his former employees, Sam Matthews, that

the “only way” he or his wife would get out of their marriage

was “to die,” because he was “not going to give Minnie half

of what [he] got so some other man can live off of it.”

The prosecution also presented evidence that Smith’s

DNA was recovered from both the murder weapon and his

wife’s body. The prosecution also showed that police

recovered the missing jewelry from the trunk of Smith’s car,

and that the duct tape found on the jewelry box was from the
8 SMITH V. LOPEZ

same roll as the duct tape used to bind his wife’s ankles. 

Finally, the prosecution presented the expert testimony of a

criminologist who opined that the disarray in the Smiths’

house was staged.

Like the prosecution, the defense presented a large

volume of evidence, calling nearly thirty witnesses and

submitting nearly one hundred exhibits. To support Smith’s

alibi, defense counsel presented evidence of Smith’s

movements on December 15, 2005. To establish that the

seventy-year-old Smith was incapable of committing the

murder, defense counsel presented medical evidence showing

that he underwent major rotator cuff surgeryweeks before the

murder, and that surgery would have prevented him from

swinging a fireplace tool with enough force to deal the fatal

blow.

The defense insinuated that Matthews, and not Smith,

murdered Minnie. On cross-examination,Matthews admitted

that he owed Smith $15,000 and knew the location of several

safes in the Smiths’ house. Defense counsel also elicited

testimony that, at the time Matthews spoke with investigators,

he knew details about the crime scene that the investigators

hadn’t told him and that he hadn’t learned from news reports. 

In particular, defense counsel asked Matthews about

statements he made to investigators in which he imagined

how Smith would have gone about the murder:

Q. And didn’t you tell the police that Mr.

Smith wouldn’t have done it alone?

A. Yeah, I might have said that.
SMITH V. LOPEZ 9

Q. And didn’t you say that he would have

done it with Nelson Nealy?

A. Probably said that, too.

Q. Yes or no?

A. Yes.

Q. And didn’t you say that “he and Nelson

Nealy would have done it, and then they

would have gone downstairs afterwards

and had a drink”?

A. No I didn’t say that.

Contrary to Matthews’s testimony, he did tell investigators

that whoever killed Minnie Smith went downstairs and had a

drink afterward. In fact, a cup of Hennessy cognac was

sitting on the downstairs bar when police discovered Minnie

Smith’s body.

After the defense rested, the trial court held a conference

to discuss jury instructions. The prosecution proposed an

aiding-and-abetting instruction. The prosecutor argued that

the instruction was needed because “if [Smith] didn’t swing

the murder weapon, it doesn’t mean he’s not guilty of the

crime.” Defense counsel strenuously objected, explaining

that she previously was unaware that the prosecutor was

relying on an aiding-and-abetting theory. She emphasized

that throughout the case, there had been no sign that the

prosecution was relying on such a theory, and asserted that

the instruction would invite the jury to “speculate about a
10 SMITH V. LOPEZ

universe of possibilities for which there’s absolutely no

evidence.”

The trial judge nevertheless agreed to give the aiding-andabetting instruction. The judge believed he had a sua sponte

duty to do so because there was “considerable evidence” that

even if Smith was incapable of swinging the log roller, “he

may very well have been an aider and abettor.” The judge

expressed concern that without an aiding-and-abetting

instruction, the jurors would be left without legal guidance in

the event they accepted the defense theory but still believed

Smith was involved in the murder. In expressing this

concern, the trial judge acknowledged that both sides had

presented “strong cases” concerning Smith’s ability to inflict

the fatal blows.

The parties gave closing arguments immediately after the

lunch recess. The prosecutor did not mention aiding and

abetting in his initial argument. Instead, he argued that Smith

was healthy and strong enough to swing the log roller

himself. The prosecutor also emphasized that only Smith,

and “not some unidentified perpetrator,” could have swung

the fireplace tool because Smith’s was the only DNA found

on the tool besides that of Minnie and a crime lab technician.

In her closing argument, defense counsel addressed the

possibility that the prosecutor would discuss an aiding-andabetting theory in rebuttal. After arguing that Smith could

not have perpetrated the murder, defense counsel told the jury

that the prosecutor might argue “a new theory in this case, for

the first time ever, here today.” Defense counsel then

attempted to respond to that theory:
SMITH V. LOPEZ 11

Now that we’ve proven [Smith] couldn’t have

done it, proven there wasn’t time, there’s

going to be a phantom second guy. And Mr.

Smith is going to be with that phantom second

guy. And that second guy is going to be

doing the killing and the lifting and whatnot,

even though the prosecution’s DNA experts

say there’s no foreign DNA found in the

house.

Defense counsel then suggested that the prosecution was

introducing the theory late in the proceedings because “any

time we pound down the prosecution theory, they pop up with

a new one.”

In rebuttal, the prosecutor acknowledged that aiding and

abetting was not his theory of the case, but invited the jurors

to consider the theory anyway:

Look, the prosecution theory of the case is the

defendant murdered his wife. Left-handed,

two-handed, right-handed, using a side blow,

it doesn’t matter to me. I don’t care which

one happened. It doesn’t matter. . . .

But the fact of the matter is—and this is just

the law—the defendant killed his wife. He

wielded that fireplace tool himself. But if you

don’t believe that—or let’s say three of you

get back in the deliberations and say, I just

don’t know. I know he’s involved. I know

he’s lying about the jewelry. He’s got the

jewelry. He’s got the duct tape that matches

duct tape from this crime scene. I know he’s
12 SMITH V. LOPEZ

in on it, but I’m not sure that he could have

wielded that weapon.

Well, guess what? You don’t have to be. 

And that’s the law . . . .

The prosecution theory: he killed her before

he left the house and he went to work. Does

it matter if you buy that theory? No, it

doesn’t, because he doesn’t even have to be

there. He doesn’t even have to be the one

who wielded the murder weapon. He was. 

And he did.

And half of you can think it was one way and

the other half think it’s the other way, doesn’t

matter. That’s still a guilty verdict.

After closing arguments, the trial judge rejected defense

counsel’s renewed request to not give the aiding-and-abetting

instruction. The trial judge then instructed the jury on aidingand-abetting liability in addition to principal liability. In a

general verdict, the jury convicted Smith of first-degree

murder as charged in the information.

B

On direct appeal, the California Court of Appeal reversed

Smith’s conviction. Citing People v. Perez, 113 P.3d 100,

104 (Cal. 2005), the court explained that before a jury may

convict a defendant under an aiding-and-abetting theory, the

prosecution must prove that someone other than the defendant

committed the crime. The court then held that because “no

proof was presented that another person participated in
SMITH V. LOPEZ 13

accomplishing” the killing of Minnie Smith, “the evidence

failed to support the [trial court’s] giving of aiding and

abetting instructions in this case.” The court noted that “the

prosecutor proceeded solelyon the theorydefendant killed his

wife.” Finally, the court held that the trial court’s

instructional error prejudiced Smith’s trial.

On review, the California Supreme Court vacated the

court of appeal’s decision and remanded for reconsideration

of the prejudice determination in light of People v. Guiton,

847 P.2d 45 (Cal. 1993). Guiton had applied the U.S.

Supreme Court’s decision in Griffin v. United States,

502 U.S. 46 (1991), holding that where a jury is presented

with two theories of guilt, one factually supported and the

other not, “the appellate court should affirm the judgment

unless a review of the entire record affirmatively

demonstrates a reasonable probability that the jury in fact

found the defendant guilty solely on the unsupported theory.” 

847 P.2d at 53.

Applying the Guiton/Griffin prejudice standard, the court

of appeal then concluded that the factually unsupported

instruction was not prejudicial error because there was no

affirmative indication in the record that the jury based its

guilty verdict solely on aiding and abetting.

1 The court

pointed first to the prosecutor’s own ambivalence in rebuttal

about the aiding-and-abetting theory. The court also cited the

jury’s requests during deliberations to examine the fireplace

1

In doing so, the court of appeal apparently maintained its previous

conclusion that, contrary to what the trial judge determined, the aidingand-abetting instruction was not supported by the evidence because the

prosecution presented no proof that another person participated in the

murder.
14 SMITH V. LOPEZ

tool and Smith’s medical records. The court said these

requests indicated that the jurywas focused on whether Smith

had the strength to beat his wife to death, and not on whether

he aided and abetted someone else.

After determining that the trial court’s aiding-andabetting instruction was not, by itself, prejudicial error, the

court of appeal also rejected Smith’s claim that the

prosecution failed to provide him with constitutionally

adequate notice of its aiding-and-abetting theory. First, the

court explained, quoting People v. Diaz, 834 P.2d 1171, 1203

(Cal. 1992), that “‘under [California’s] statutory scheme, an

accusatory pleading charging a defendant with murder need

not specify the theory of murder on which the prosecution

intends to rely.’” Based on this established state rule, the

court held that the information provided Smith with adequate

notice that he could be liable as an aider and abettor.

Next, the court of appeal acknowledged, quoting Diaz,

834 P.2d at 1203, that “‘there are situations in which the

United States Constitution may require greater specificity’”

concerning the basis for the defendant’s liability. It then

concluded that the evidence at Smith’s preliminary

examination provided that additional specificity. 

Specifically, the court pointed to the preliminary hearing

testimony of Detective McShane about the incriminating

statements that David Moraga claimed Smith made while

they were housed together in the same cell. The court found

that this testimony “suggests defendant may not have

personally committed the murder.” The court therefore

concluded that “even in the absence of an aider and abettor

liability allegation in the information, the evidence presented

at defendant’s preliminary examination meaningfully
SMITH V. LOPEZ 15

apprised him of the potential for an aiding and abetting

theory.”

Finally, the court of appeal found that the prosecution did

not “ambush” Smith with the aiding-and-abetting theory

because “[t]he prosecution’s request for aiding and abetting

liability instructions occurred during the parties’ general

discussion of the jury instructions and not just prior to closing

argument,” and because the prosecution only mentioned the

aiding-and-abetting theory in its rebuttal argument. The court

affirmed Smith’s conviction. The California Supreme Court

denied a petition for review without citation or comment.

In his federal habeas petition, Smith again claimed that

his constitutional right to adequate notice of the nature of the

charges against him was violated when the trial court

instructed the jury on aiding-and-abetting liability.

2 The

district court agreed and adopted the magistrate judge’s

recommendation to grant Smith’s petition. The state timely

appealed.

II

We review de novo the district court’s decision to grant

a habeas petition, and we review the district court’s

underlying factual findings for clear error. Merolillo v. Yates,

663 F.3d 444, 453 (9th Cir. 2011). We may affirm the district

court’s decision on any ground supported by the record, even

if it differs from the district court’s rationale. Id.

2

In addition to his notice claim, Smith raised another claim not at issue

in this appeal.
16 SMITH V. LOPEZ

Because Smith filed his federal habeas petition after April

24, 1996, we apply 28 U.S.C. § 2254 as amended by the

Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub. L. No. 104–132, 110 Stat. 1214. Lindh v.

Murphy, 521 U.S. 320, 336 (1997). Under § 2254, a state

prisoner may not obtain federal habeas relief for any claim

that was adjudicated on the merits by a state court unless the

state court’s decision was (1) “contraryto” clearlyestablished

federal law as determined by the Supreme Court, (2)

“involved an unreasonable application of” such clearly

established law, or (3) “was based on an unreasonable

determination of the facts” in light of the record before the

state court. 28 U.S.C. § 2254(d); Harrington v. Richter,

131 S. Ct. 770, 785 (2011).

A

The Sixth Amendment and basic principles of due process

guarantee a criminal defendant the fundamental right to be

informed of the nature and cause of the accusations against

him so that he may have a meaningful opportunity to prepare

an adequate defense against every issue raised by those

accusations. See U.S. Const. amend. VI (“In all criminal

prosecutions, the accused shall enjoy the right . . . to be

informed of the nature and cause of the accusation . . . .”);

Cole v. Arkansas, 333 U.S. 196, 201 (1948) (“No principle of

procedural due process is more clearly established than that

notice of the specific charge, and a chance to be heard in a

trial of the issues raised by that charge, if desired, are among

the constitutional rights of every accused in a criminal

proceedings in all courts, state or federal.”); In re Oliver,

333 U.S. 257, 273 (1948) (“A person’s right to reasonable

notice of a charge against him, and an opportunity to be heard

in his defense—a right to his day in court—are basic in our
SMITH V. LOPEZ 17

system of jurisprudence . . . .”). Notice must be sufficiently

detailed to enable a defendant to address all the relevant

issues in his defense. Russell v. United States, 369 U.S. 749,

766–68 (1962) (Sixth Amendment violated where an

indictment left the “chief issue undefined,” thereby allowing

“the prosecution free to roam at large” and present the

defendant “with a different theory, or . . . no theory at all” at

every stage of the criminal proceedings). Therefore, we have

repeatedly recognized that a defendant who is charged with

first-degree murder is entitled to notice of what specific

theory of murder the prosecution intends to pursue. See, e.g.,

Murtishaw v. Woodford, 244 F.3d 926, 953–54 (9th Cir.

2001) (right to notice of the prosecution’s felony-murder

theory); Morrison v. Estelle, 981 F.2d 425, 428 (9th Cir.

1992) (same); Sheppard v. Rees, 909 F.2d 1234, 1235 (9th

Cir. 1990) (same); Givens v. Houseright, 786 F.2d 1378,

1380–81 (9th Cir. 1986) (right to notice of the prosecution’s

murder-by-torture theory).

The starting point for determining whether a defendant

received adequate notice of the charges against him is the

charging document. Gautt v. Lewis, 489 F.3d 993, 1003 (9th

Cir. 2007). The charging document “must in some

appreciable way apprise the defendant of the charges against

him so that he may prepare a defense accordingly.” Id. at

1004; Givens, 786 F.2d at 1380. When the charging

document does not specify the prosecution’s theory of a

crime, trial and pretrial proceedings may nonetheless provide

a defendant with constitutionally adequate notice. For

example, a defendant may receive notice of the prosecution’s

theory from the prosecutor’s opening statement, see

Murtishaw, 255 F.3d at 954; Calderon v. Prunty, 59 F.3d

1005, 1009 (9th Cir. 1995), or the evidence presented at trial,

see Murtishaw, 255 F.3d at 954; Morrison, 981 F.2d at
18 SMITH V. LOPEZ

428–29.3 We also may examine the trial record to determine

whether the defendant knew that a particular theory was on

the table. See Murtishaw, 255 F.3d at 954.

In limited circumstances, the actions of the prosecution

may lead the defendant to reasonably believe that a particular

theory is off the table, notwithstanding any prior notice from

the charging document. In Sheppard v. Rees, the information

charged the defendant with one count of murder under

California Penal Code § 187, and the prosecution tried the

case on the theory that the defendant personally committed

premeditated murder. 909 F.2d at 1235. The concept of

felony-murder was never mentioned, directly or indirectly,

during the pretrial proceedings, opening statements, or trial. 

Id. Nor was there any mention of felony-murder when the

judge settled the jury instructions. Id. But the morning after

the instructions conference, and just before closing

arguments, the prosecution requested an instruction on

felony-murder, which the trial court gave over a defense

objection. Id. at 1235–36. On appeal, we agreed with the

state’s concession that under the circumstances of that case,

the felony-murder instruction violated the defendant’s

3

In Morrison, we held that a defendant received constitutionally

adequate notice of the prosecution’s felony-murder theory in part through

the jury instructions the prosecutor submitted two days before closing

arguments. 981 F.2d at 428–29. However, more recently we found the

argument “troublesome” that “jury instructions or closing arguments—

sure signs that the end of a trial is drawing near—could substitute for

sufficient notice to a defendant of the charges that have been leveled

against him.” Gautt, 489 F.3d at 1010 (emphasis in original). A jury

instruction “cannot itself serve as the requisite notice of the charged

conduct, coming as it does after the defendant has settled on a defense

strategy and put on his evidence.” Id. Nevertheless, in Gautt we assumed

without deciding that jury instructions “can be parsed for evidence of

notice to the defendant.” Id.
SMITH V. LOPEZ 19

fundamental right to notice of the nature of the charges

against him because “a pattern of government conduct

affirmatively misled the defendant, denying him an effective

opportunity to prepare a defense.” Id. at 1236 (emphasis

removed). The principal evil, we explained, was that

the prosecutor “ambushed” the defense with a

new theory of culpability after the evidence

was already in, after both sides had rested, and

after the jury instructions were settled. This

new theory then appeared in the form of

unexpected jury instructions permitting the

jury to convict on a theory that was neither

subject to adversarial testing, nor defined in

advance of the proceeding.

Id. at 1237.

Sheppard was a “narrow ruling,” and we have

distinguished it where the facts of a case varied even slightly. 

For example, in Morrison we held that the defendant had

adequate notice of the prosecution’s felony-murder theory

from the evidence presented at trial. 981 F.2d at 428. We

also held that the defendant was not “ambushed” by the

felony-murder theory because defense counsel had a full two

days to prepare for closing arguments after the prosecution

requested a felony-murder theory. Id. Likewise, in Stephens

v. Borg we found no ambush where defense counsel had five

days to prepare for closing arguments after receiving notice

of the prosecution’s intention to rely on a felony-murder

theory. 59 F.3d 932, 936 (9th Cir. 1995).

Nonetheless, Sheppard remains instructive. Although it

was a pre-AEDPA case, it faithfully applied the principles
20 SMITH V. LOPEZ

enunciated by the Supreme Court in Cole, Oliver, and

Russell.

B

The district court correctly concluded that Smith’s right

to notice of the nature of the charges against him was violated

when the trial court gave the prosecution’s requested aidingand-abetting instruction. This case is indistinguishable from

Sheppard: by requesting the jury instruction just before

closing argument and without any prior indication that it was

pursuing an aiding-and-abetting theory, the prosecution

ambushed Smith and denied him a meaningful opportunity to

prepare his defense.

The information charging Smith with first-degree murder

was initially sufficient to put him on notice that he could be

convicted either as a principal or as an aider-and-abettor. See

Carothers v. Rhay, 594 F.2d 225, 229 (9th Cir. 1979)

(holding that a defendant who was charged with first-degree

murder had constitutionally adequate notice that he could be

convicted as an aider and abettor; under state law, anyone

who participated in the commission of a crime was liable as

a principal regardless of his level of participation). In

California, aiding and abetting a crime is the same

substantive offense as perpetrating the crime, so aiders and

abettors may be punished as principals. Cal. Penal Code

§ 31; People v. Jenkins, 997 P.2d 1044, 1130 (Cal. 2000).

However, notwithstanding any notice provided by the

information, the prosecution’s conduct throughout the pretrial

and trial proceedings affirmatively led Smith to reasonably

believe that it would not rely on an aiding-and-abetting

liability theory. At the very beginning of his opening
SMITH V. LOPEZ 21

statement, the prosecutor told the jury that “the evidence will

show that that man over there at the end of counsel table [i.e.,

Smith], wearing the nice sweater, murdered his wife of 27 or

28 years, and then he staged the crime scene to make it look

like a burglary to avoid detection.” (emphasis added). Later,

the prosecution again told the jury that “the defendant

bludgeoned [Minnie Smith] to death, bound her arms behind

her with a wire coat hanger, and then staged the scene to look

like a burglary.” (emphasis added). Neither statement

permits the interpretation that Smith acted with or through

another person, so the prosecution made clear that it was

pinning Smith as the sole perpetrator of the murder. Cf.

Murtishaw, 255 F.3d at 954 (finding that the defendant

received adequate notice of the prosecution’s theory of the

murder from the prosecutor’s opening statement).

Like its opening statement, the prosecution’s case-in-chief

precluded the possibility that a third person was involved in

Minnie Smith’s murder. The prosecution introduced

evidence showing that the DNA found on Minnie Smith’s

body, the murder weapon, and other objects at the murder

scene matched the DNA of only three people: Marvin Smith,

Minnie Smith, and a crime lab technician who visited the

murder scene. From these actions, Smith reasonably could

have drawn the inference that the prosecution was not trying

him as an aider and abettor. Indeed, the prosecution’s initial

closing argument confirmed that inference: it emphasized

how easy it is for a person’s DNA—such as the DNA of the

crime lab technician—to end up on objects in their presence,

and then argued that the absence of another individual’s DNA

at the murder scene meant that no unidentified perpetrator

could have killed Minnie Smith.
22 SMITH V. LOPEZ

Conversely, and as the California Court of Appeal

recognized, the prosecution presented no evidence at trial to

support an aiding-and-abetting theory. Therefore, unlike

those cases where we have found constitutionally adequate

notice from the presentation of evidence, there was nothing

at trial that might have indicated to Smith that aiding-andabetting liability was on the table. Cf. Carothers, 594 F.2d at

229 (holding that there was notice of an aiding-and-abetting

theory where the defendant was charged with first-degree

murder and the evidence showed that another person

accompanied the defendant to the scene of the crime).

Smith’s conduct at trial further supports the conclusion

that he had no meaningful notice of the prosecution’s intent

to pursue an aiding-and-abetting theory. See Murtishaw,

255 F.3d at 954 (explaining that we may examine the

defendant’s conduct for evidence of constitutionallyadequate

notice). Defense counsel presented an alibi and argued that

Smith was physically incapable of bludgeoning his wife to

death. These defenses would have been meaningless against

an accusation that he somehow assisted or worked through

another person to kill Minnie Smith. Furthermore, unlike the

defendant in Murtishaw, Smith never questioned any

witnesses with respect to the possibility that he participated

in the murder with another person. See id.

Unlike the defendants in Morrison and Stephens, who had

several days after the jury instructions conference to prepare

an argument to counteract the prosecution’s unexpected

theory, closing arguments in this case commenced almost

immediately after the trial judge agreed to give the

unexpected instruction. Cf. Stephens, 59 F.3d at 936;

Morrison, 981 F.2d at 428. In fact, defense counsel had only

the lunch recess to formulate a response to the prosecution’s
SMITH V. LOPEZ 23

new theory, and the prosecutor waited until his rebuttal to

raise the aiding-and-abetting theory, depriving defense

counsel of any opportunity to actually respond. As in

Sheppard, the prosecution here requested the new instruction

the same day as closing arguments. See 909 F.2d at 1235–36. 

Moreover, unlike Morrison, there was no evidence presented

at Smith’s trial to give him any inkling that the prosecution

would ask for an aiding-and-abetting instruction. Cf.

981 F.2d at 428. Therefore, Smith’s constitutional right to

notice, under Cole, Oliver, and Russell, was violated.

The state argues that Smith should have been aware that

aiding-and-abetting liability was on the table because his

defense theory necessarily implied that another person

murdered his wife. Contrary to the state’s logic, implying

that someone else killed the victim does not necessarily

invoke a new question as to aiding and abetting. Indeed, the

defense theory was that Matthews had an independent motive

to burglarize the house, and he knew facts about the murder

scene unknown to others. However, pointing his finger at

Matthews did not automatically implicate Smith as

Matthews’s accomplice, and it certainly did not show that he

knew the prosecution was pursuing an aiding-and-abetting

theory. Similarly, Matthews’s statements on crossexamination that Smith would have acted with a man named

Nelson Nealy to kill Minnie did not raise the possibility of

aiding-and-abetting liability. Matthews’s comments were

totally uncorroborated and speculative, and were in answer to

a larger line of questions by which defense counsel tried to

suggest that Matthews may have been the murderer.

The state also echoes the California Court of Appeal’s

conclusion that the preliminary hearing testimony of

Detective McShane “meaningfully apprised” Smith of the
24 SMITH V. LOPEZ

potential for an aiding-and-abetting theory.”4It is puzzling,

however, how anyone could divine even a remote possibility

of an aiding-and-abetting theory from the preliminaryhearing

transcript. Moraga’s statements to Detective McShane

suggested only that Smith had a motive to kill his wife and

that he took several steps to make the house appear as if it

had been burglarized. His statements did not indicate that

Smith took these steps so that some other, unmentioned

person could enter the house and commit the murder. Nor did

defense counsel’s cross-examination of Detective McShane

raise the possibility that the prosecution would pursue an

aiding-and-abetting theory. When defense counsel asked the

detective whether Moraga knew any details about the

murder—including themanner of the killing, who specifically

did the killing, and when the killing occurred—she was

seeking to impeach Moraga’s credibility by showing that

Moraga, after spending six months in a cell with Smith, knew

very little about the crime that he claimed Smith confessed to

committing. By impeaching Moraga, the defense did not

acknowledge that the prosecution was pursuing an aidingand-abetting theory. Indeed, it does not even appear that the

defense’s cross-examination gave the prosecution that

idea—the prosecution’s trial brief and motions in limine, filed

nearly three months after the preliminary hearing, argued that

Moraga’s testimony served only to identify Smith as the

perpetrator.

In sum, the prosecution tried its case on one theory—that

Smith directly perpetrated his wife’s murder. The

prosecution presented no evidence in support of aiding-and4 The district court clearly erred in stating that Smith accepted this

conclusion. Smith challenged it in his federal habeas petition, and he

continues to challenge it on appeal.
SMITH V. LOPEZ 25

abetting liability, and its opening statements and case-in-chief

seemed to firmly preclude the possibility that an unidentified

person killed Minnie Smith. Until the jury instructions

conference, no one had ever mentioned the possibility of an

aiding-and-abetting theory. Therefore, when the trial court

instructed the jury on aiding-and-abetting liability, Smith was

“ambushed” and his fundamental right to notice of the nature

of the accusations against him was denied in violation of

Cole, Oliver, and Russell.

C

The district court correctly determined that the trial

court’s error in instructing the jury in aiding-and-abetting

liability was not harmless. We must grant relief if the

constitutional error “had substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht v.

Abrahamson, 507 U.S. 619, 623 (1993). Reversal is required

where “the record is so evenly balanced that a ‘conscientious

judge is in grave doubt as to the harmlessness of an error.’” 

Gautt, 489 F.3d at 1016 (quoting O’Neal v. McAninch,

513 U.S. 432, 438 (1995)).5

5 The Supreme Court has not stated definitively whether a violation of

the Sixth Amendment right to notice is subject to harmless error analysis. 

Gautt, 489 F.3d at 1015. In Sheppard, we decided that violation of the

Sixth Amendment right to notice was structural error requiring automatic

reversal. 909 F.2d at 1238. However, in Gautt we questioned that part of

Sheppard because it predated several Supreme Court decisions stressing

the limited category of structural errors. Gautt, 489 F.3d at 1015. 

However, we declined to reach that issue in Gautt, because we found that

the error in that case was not harmless. Id. at 1016. We do the same here

because we conclude that the trial court’s error was not harmless.
26 SMITH V. LOPEZ

Here, the trial judge acknowledged that Smith presented

a strong defense and that the evidence on both sides was

closely balanced. The California Court of Appeal expressed

a similar assessment in its first decision, which described

Smith as presenting “an arguably successful defense

concerning his identity as the perpetrator of a crime.” Given

this evenly balanced record, and the fact that the prosecutor

invited the jury to speculate—at the last minute and without

any evidence—about Smith’s liability as an aider and abettor,

the district court was correct to have grave doubts about the

validity of the jury’s verdict.

D

For the purpose of determining whether § 2254(d) bars

habeas relief, we review the last reasoned state-court

decision. Gill v. Ayers, 342 F.3d 911, 917 n.5 (9th Cir. 2003). 

Here, because the California Supreme Court denied Smith’s

petition for review without citation or comment, we “look

through” the California Supreme Court’s decision to the

California Court of Appeal’s second decision, in which it

affirmed Smith’s conviction on remand from the California

Supreme Court. Id. Section 2254(d) does not bar habeas

relief where the state court’s decision was “based on an

unreasonable determination of the facts” in light of the record

before the state court. 28 U.S.C. § 2254(d)(2).

A state court’s determination of facts is unreasonable

“where the state court[] plainly misapprehend[s] or

misstate[s] the record in making [its] findings, and the

misapprehension goes to a material factual issue that is

central to petitioner’s claim.” Id. at 1001. Here, the

California Court of Appeal determined that Detective

McShane’s preliminary hearing testimony about statements
SMITH V. LOPEZ 27

Smith purportedly made to Moraga “meaningfully apprised

[Smith] of the potential for an aiding and abetting theory.” 

But, as we have noted above, the purported statements simply

do not support such a theory. The California Court of Appeal

also determined that “[t]he prosecution’s request for aiding

and abetting liability instructions occurred during the parties’

general discussion of the jury instructions and not just prior

to closing argument.” (emphasis added). This is also a

misstatement of the record. Just as in Sheppard, the

prosecution requested, and the trial judge decided to issue, the

aiding-and-abetting instruction on the morning of the day of

closing arguments. See 909 F.2d at 1235. Defense counsel

had only the lunch recess to formulate a response to the new

theory.

At oral argument, the state suggested that the trial court’s

error in giving the aiding-and-abetting instruction should be

analyzed solely under People v. Guiton and Griffin v. United

States. 847 P.2d at 51. Under those cases, reversal of a

conviction is not required solely because a jury is instructed

on a factually unsupported theory. Griffin, 502 U.S. at 60;

Guiton, 847 P.2d at 52. Rather, “the appellate court should

affirm the judgment unless a review of the entire record

affirmatively demonstrates a reasonable probability that the

jury in fact found the defendant guilty solely on the

unsupported theory.” Guiton, 847 P.2d at 53; see Griffin,

502 U.S. at 59. Here, the California Court of Appeal

concluded that under Guiton, the trial court’s error did not

require reversal of Smith’s conviction because there was no

affirmative indication in the record that the jury based its

guilty verdict solely on the factually unsupported aiding-andabetting theory. The state suggests that because the

California Court of Appeal’s decision with respect to the

Guiton question was neither “contrary to” nor “an
28 SMITH V. LOPEZ

unreasonable application of” Griffin, § 2254(d)(1) precludes

federal habeas relief on Smith’s Sixth Amendment notice

claim.

This argument conflates two fundamentally different

inquiries. Whether the trial court’s factually unsupported

aiding-and-abetting instruction required reversal by itself is

a separate question from whether Smith had adequate notice

of—and a meaningful opportunity to defend against—the

prosecution’s aiding-and-abetting theory.

6 Griffin and Guiton

concern only the former, while the Sixth Amendment, Cole,

and Sheppard concern the latter.

In Griffin, there was never any doubt about what crime

the defendant was charged with and what theories the

prosecution was trying to prove: the defendant was charged

with one count of conspiracy with two objects—(1)

defrauding the Internal Revenue Service, and (2) defrauding

the Drug Enforcement Agency (“DEA”)—and the

prosecution always sought to prove both. 502 U.S. at 47. But

because certain testimony anticipated by the prosecution

failed to materialize, there was insufficient evidence to

connect the defendant to the DEA object. Id. at 48. 

Likewise, in Guiton the defendant was charged with one

count of selling or transporting cocaine, and the prosecution

sought to prove that the defendant transported cocaine and

that he sold it. 847 P.2d at 46–47. The problem was that the

prosecution failed to present sufficient evidence in support of

its theory that the defendant sold cocaine, and the reviewing

court could not definitively determine from the general

verdict whether the jury convicted based on the valid theory

of transportation or the invalid theory of sale. Id. at 47.

 

6

 The California Court of Appeal also treated these as separate issues.
SMITH V. LOPEZ 29

Because in both Griffin and Guiton, it was clear from the

beginning what theories the prosecution sought to prove, the

defendant’s Sixth Amendment right to notice of the nature of

the accusations was not implicated. Griffin, 502 U.S. at 47;

Guiton, 847 P.2d at 46–47; see also Griffin, 502 U.S. at 48

(explaining that it was unnecessary to discuss the Sixth

Amendment). The only question in those cases was whether

courts should automatically reverse based on the assumption

that, absent a contrary indication in the record, the jury based

its verdict on a factually unsupported theory of the crime. In

contrast, in cases interpreting the Sixth Amendment’s

guarantee of notice, the problem was that the prosecution did

not articulate the specific charges, enhancements, or theories

which it sought to prove. See, e.g., Russell, 369 U.S. at

766–68; Gautt, 489 F.3d at 998–99; Sheppard, 909 F.2d at

1235; Givens, 786 F.2d at 1380. The Sixth Amendment

notice problem is separate and unrelated to the question of

whether a factually unsupported jury instruction, by itself,

requires reversal.

For similar reasons, as we have already noted, the

California Court of Appeal’s determination that Smith was

not prejudiced under the Guiton standard does not preclude

us from holding that Smith was prejudiced by the trial court’s

violation of his fundamental right to notice of the accusations

against him. Guiton’s prejudice standard is different from the

Brecht harmless error standard, which applies to the violation

alleged here. Under Guiton, courts must affirm a conviction

unless the record affirmatively indicates that the jury based its

verdict solely on the unsupported theory of liability. Guiton,

847 P.2d at 53. By contrast, under Brecht federal courts must

reverse a conviction if a constitutional error “had substantial

and injurious effect or influence in determining the jury’s

verdict.” Brecht, 507 U.S. at 623. The Brecht standard is
30 SMITH V. LOPEZ

different, and less demanding, than the Guiton standard. Cf. 

Mancuso v. Olivarez, 292 F.3d 939, 950 (9th Cir. 2002)

(“‘The inquiry cannot be merely whether there was enough to

support the result, apart from the phase affected by the error.

It is rather, even so, whether the error itself had substantial

influence. If so, or if one is left in grave doubt, the conviction

cannot stand.’” (quoting Kotteakos v. United States, 328 U.S.

750, 765 (1946))). Accordingly, we are not constrained by

§ 2254(d)(1) in deciding that the trial court’s error in this case

was not harmless. See Williams v. Taylor, 529 U.S. 362, 406

(2000).

CONCLUSION

The prosecution’s conduct affirmatively led Smith to

believe it would not rely on an aiding-and-abetting liability

theory. Thus, the aiding-and-abetting jury instruction

violated Smith’s fundamental right to receive notice of the

nature of the charges against him and have a meaningful

opportunity to prepare a defense. Given the closely balanced

evidence, we cannot say that the trial court’s error was

harmless. Therefore, we affirm the judgment of the district

court granting a conditional writ of habeas corpus.

AFFIRMED.