F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

M A R V I N V E R N I S S M I T H , Petitioner-Appellee

,

v.

R A U L L O P E Z , W arden, R espondent-Appellant

. No. 12-55860

D.C. No. 8:11-cv-01076-ODW -MRW

OPI NI ON

A ppeal from the United States District Court for the Central District of California Otis D. W rig ht I I , District J u dg e, Presiding

Arg ued and Submitted March 6, 2013—Pasadena, California

F iled September 23, 2013

B efore: Sidney

R. Thomas and Andrew D. Hurwitz , Circuit J udg es, and Ralph R. B eistline, Chief District J udg e. *

Opinion by

J udg e Thomas

* T h e H o n orab le Ra l p h R

. B eistlin e, Ch i ef District J u d g e f o r th e U .S. District Co u

rt f o r th e District o f

A lask a, sittin g b y

d esig n atio n

.S M I T H V

. L O P E Z

2

SUMMARY * *

Habeas Corpus

The panel affirmed the d istrict c ourt’s conditional g rant of a 2 8 U .S.C. § 2254 habeas corpus petition claiming that petitioner was denied his rig ht to notice of t h e nature o f the accusations ag ainst him w hen the trial judg e g ave an aiding

and-abetting

jury instruction.

The panel ex plained that, althoug h the crimin al information charg ing petitioner with first-deg ree murder was i nitially sufficient to put him o n notice that he c o u l d b e convicted either as a principal or as an aider-and-abettor, the prosecution’s conduct throug hout t h e pretrial a nd trial
proc e ed i n g s a ffirmatively led petitioner to b elieve that the prosecution would not rely on an aiding -and-abetting liability theory

. The p anel held that the a iding -and-a b etting jury instruction, g iven only after the prosecution requested it at the jury instructions c onference, violated petit ioner’s rig ht to notice of the n ature of the charg e s ag ainst him, as well as the rig ht to prepare a defense. The panel held that the error was not harmless.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.S M I T H V

. L O P E Z 3

COUNSEL

Kamala Harris, A ttorne y G eneral, J ulie L

. Garland, Senior Assistant Attorney Genera l

, Kevin Vienna, Supervising Deputy Attorney

General, Robin Urbanski (arg ued), Deputy A t t o r ney G eneral, San Dieg o, California, for RespondentAppellant.

Dennis P. Riordan (arg

u ed), Donald M. H org an, and Gary K

. Dubcoff, Riordan & Horg an, Sa n F rancisco, California, for Petitioner-Appellee.

OP INION

THOMAS, Circuit J udg e :

I n this appeal, we consider whether a habeas petitioner’s constitutional rig ht to notice of the nature of the accusations
ag ainst him was violated. W e a g ree with the d i s t r ict court that it was, and we affirm the judg ment g ranting fed e r al habeas relief.

I

A

On the evenin g o f December 15, 2005, police officers
went to the home of Marvin and Minnie Smith in response to Marvin Smith’s 9 11 c all reporting a burg lary in prog ress. I n the upstairs bedroom, the police found Minnie Smith’s body

on the floor. She had been killed by a crushing b l o w t o her head from a fireplace log r oller

, a nd her body had other injuries that may h ave been inflicted b e fore h e r death. HerS M I T H V

. L O P E Z

4

hands w ere bound by a wire clothes hang er, and her feet h ad b e e n bound by a strip of duct tape that was found near t h e b ody

. Parts of the house appeared to have b een ransack ed

, and valuable jewelry was missing from the bedroom.

Several weeks later, Smith was arrested f or the murder o f his wife. A felony c omplaint charg e d Smith with “unlawfully and w ith malice aforethoug ht k ill[ ing ] MI N N I E SMI TH” in violation of California Penal Code § 187(a).

At t he preliminary ex amination hearing

, the prosecution presented the testimony of Dete ct ive Christopher McShane. Detective McShane testified that h e h ad interviewed David Morag a, Smith’s cell mate for six m o n t h s, and that Morag a had told Detective McShane that Smith made incriminating statements while they

were celled tog e ther:

Q. And did [ Morag a] indicate to y ou whether Marvin Smith had told h im any thing about the killing of Minnie Smith?

A. Yes.

Q. W h at did [ Morag a] say to y o u he’d heard from Marvin Smith?

A. He said t h at Marvin had told him that he had to g et r id of h is wife because she was standin g i n the way of his future plans; that she wa s threatening to divorce him and he wasn’t g oing to g ive up half of his property he worked so hard for his entire life. Said on the day of the murder he h ad le ft the house earlier than he n ormallyS M I T H V

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does, that he left, he took the jewelry a nd the money out o f the safe w i t h him. He stag ed it to look like a home invasion robbery

. He left a window open. He

ex ited the house without setting the alarm. He went throug h the fr o n t door of the house, and that he went to work that day

.

On cross-ex aminat ion, Detective McShane admitted that Morag a was vag

ue on the details of the murder:

Q. Did Mr. Morag a, Detective

, t e ll y o u the

manne r i n which the killing was carried out?

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

Q. Did he g ive any

further details?

A. No.

[ . . . ]

Q. And [ Morag a] d i d

n’t really have any information about who specifically did the homicide, did he?

A. Marvin never told him specif i c ally who did it, no. . . .

[ . . . ]S M I T H V

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6

Q. [ Morag a] didn’t know any of the details o f

the homicide itself and how it was carried out, correct?

A. Correct.

Q. Did he tell y ou that t he homicide was committed before Mr. Smith left the house or was he vag

ue on that point?

A. He was vag

ue.

The court f

ound probable cause to try Smith o n the charg e in the felony complaint, and the district a ttorney then f iled an information reciting the same charg e of first-deg ree murder.

At Smith’s trial, the prosecutor said in his opening
statement that “the e vidence will sho w t h a t that man over there at the end of counsel table, wearing the n i c e s w eater, murdered his wife of 27 or 28 y ears, an d t hen he stag ed the crime scene to make it look like a burg lary a n d to avoid detection.” L ater, the p rosecutor said that “the e vidence will show” that “ the defen d ant bludg eoned [ Minnie Smith] to death, bound her arms b e h ind her with a wir e c o a t h ang er,

a n d t h en stag ed the scene to look like a b urg lary .” 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.

I n the middle of the p rosecution’s opening stat em ent, defens e counsel learned that Morag a had refused to testify

. During a recess, Morag a ’s attorney told the court that his client would invoke his F ifth Amendment privileg e if called
to the s tand. T he judg e concluded that it was unlikelyS M I T H V

. L O P E Z 7

Morag a w ould testify and ordered the p arties not to discuss
t h e p r ospect of his testimony in their opening statement s

. The trial judg e also gr a n t ed defense c ounsel’s request to d elay her opening statement for nearly two weeks, a g re e i n g t hat Morag a ’s potential testimony h ad b een sig nifican t a n d that the defense should be g iven an opportunity to reeng ineer its opening statement to remove references to Morag a

.

I n her opening st atement, d e f ense counsel offered two

reasons why Smith could not have killed his wife. F irst, she
to ld the jury that the evidence w ould show that Smith’s whereabouts were a c counted for at the time of his wife’s murder. Second, she said that the e v idence w ould show that Smith was phy sically incapable of bludg eoning his wife to death with a heavy fireplace tool b ecause of major sho u l d e r surg ery he had underg one a few weeks before the murder. She also told the jury that “ there may be evidence that points
t o o t h e r people, but y ou won’t b e able to put it a ll tog ether and know who did it.”

I n its p resentation, the prosecution called o v er forty witnesses and offered over 220 ex hibits. T h e p rosecution presented evidence that Smi t h was u nfaithful to his wife for
many y ears, that his wife was threatening to divorce h im, a nd that he told one of his former employ ees, Sam Matthews, that the “only way ” he or his wife would g e t out of their marriag e was “to die,” because he was “ not g oing to g ive Minnie half of what [ he] g o t so some other man can live off of it.”

The prosecution also presented e vidence that Smith’s DNA w a s 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 theS M I T H V

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s a m e r o l l as the duct tape used to bind his wife’s ankles

. F inally

, the prosecution presented the ex pert testimony of a criminolog ist who opin e d that the disarray in the Smiths’ house was stag ed.

L ike the prosecution, the defense presented a larg e volume of evidence, calling nearly th i rty witnesses a nd submitting nearly one hundred ex hibits. To support Smith’s alibi

, defense counsel presented evidence of Smith’s
movements on December 15, 2005. To es t a b l ish that the seventy -y ear-old Smith was incapable of commi t t i n g the murder, defense counsel presented medical evid e nce showing that he underwent major r otator c uff surg ery weeks before the murder, and t h a t surg ery would have prevented him from swing ing a fireplace t o o l w i t h enoug h force to deal the fatal blow.

The defense insinuated that Matthews, and not Smith, murdered Minnie. On cross-ex amination

, M a t t h e w s admitted that he owed Smith $15,000 a nd knew the location of several safes in the Smiths’ house. Defense c o unsel also e licited testimony that, at the time Matthews spoke with investig a tors, he knew d etails about the c r i me scene that the investig ators hadn’t told him and that h e hadn’t learned from news reports. I n particular, defense counsel asked Matthews a bou t stat e m en ts he made to investig ators in which he imag ined how Smith would have g one about the murder:

Q. And didn’t y ou tell the police that Mr. Smith wouldn’t have done it alone?

A. Yeah, I

mig ht have said that.S M I T H V

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Q. And didn’t y ou 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 y ou say that “ he and N elson Nealy would have done it, and then they would hav e g one downstairs afterwards and had a drink”?

A. No I didn’t say

that.

Contrary to Matthews’s testimony

, he did tell in v estig ators that whoever killed Minnie Smith went downstairs and h ad a drink afterward. I n fact, a cup of Hennes s y c o g n ac 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 p r o s ecution proposed an aiding -and-abetti n g instruction. The p rosecutor a rg u ed that the instruction was needed because “if [ Smith] didn’t swing the murder w eapon, it doesn’t mean he’s not g uilty of the crime.” D efense counsel strenuously objected, e x plaining that she previously was unaware that t h e p rosecutor was relying on an aiding -and-abetting theory

. She em p h asiz ed that throug hout the case, there h a d b een no sig n t h a t the
pro s ecution was rely ing on such a theory

, and asserted that the instruction would invite the jury to “speculate about aS M I T H V

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universe of p ossibil i t i es for which there’s absolutely no evidence.”

The trial judg e nevertheless ag reed to g ive the aiding -andabetting instruction. The judg e believed he had a sua sponte duty to do so because there was “considerable evidence” that

even if Smith was i n ca p a b l e of swing ing the log roller, “he
may very well have been a n a i d e r a n d abettor.” T h e judg e

ex p ressed concern that without an aiding -and-abetting instruction, the jurors would be left without leg al g uidance in the event they accepted the defense theory but st i l l b e lieved Smith was involved in the murder. I n ex pres s i n g this
concern, the trial judg e acknowl e d ge d that both sides h ad presented “strong cases” concerning Smith’s ability to inflict the fatal blows.

The parties g ave closing a rg u ments immediately after the lunch recess. The prosecutor did n o t m e n tion aiding a nd abetting in his initial arg ument. I nstead, he arg ued that Smith

was health y and strong enoug h to swing the log roller himself. The prosecutor also emphasiz ed t h a t only Smith, and “not some unidentified perpetrator,” c o u ld have swung the fireplace tool because Smith’s was the o nly DNA f ound

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

I n h er closing arg ument, defense counsel a d d r e ssed the possibi l i t y that the prosecutor would discuss an aiding -andab et t i n g theory in r ebuttal. After arg u ing that Smith could
not have perpetrated the murder, defense counsel told the jury that the prosecutor mig ht arg u e “a new theory in this case, for the first time ever, here today .” Defense coun s e l then attempted to respond to that theory :S M I T H V

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Now that we’ve proven [ Smith] couldn’t have done it, proven there wasn’t time, t h ere’s
g oing to be a phantom sec o n d gu y

. And Mr. Smith is g oing to be with that phantom second
g uy

. A nd that se c o n d g uy is g oing to be doing the killing and the lifting and whatnot,

even thoug h the prosecution’s DNA ex p e rts say there’s no foreign D N A found in the house.

De f e n se counsel then sug g e sted that the prosecution was intr oducing the theory late in the proceeding s because “any time w e pound down the prosecution theory

, they pop u p with a new one.”

I n rebuttal, the prosecutor acknowledg ed that aiding and abetting w as not his theory of the c a se, but invited the jurors to consider the theory any way :

L ook, the prosecution theory of the case is the defendant murdered his wife. L eft-ha nded, two-handed, rig ht-handed, using a side blow, i t doesn’t matter to me. I d on’t care whic h one happened. I

t doesn’t matter. . . .

Bu t the fact o f the matter is—and this is ju s t the law—the d e f

endant killed h is wife. He wielded that fireplace tool h imself. B ut if y ou don’t believe that—or let’s s a y t h ree of y ou g et back in the d eliberations and say , I just don’t know. I k n ow he’s involved. I know he’s ly i n g about the jewelry

. He’s g ot the jewelry

. He’s g ot the d uct tape that matches duct tape from this crime scene. I know he’sS M I T H V

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in on it, but I ’m not sure that h e could have wielded that weapon.

W el l

, gu ess what? You don’t have to be. And that’s the law . . . .

The prosecution t h eory : he killed her before he left the house a

n d he went to w o r k. Does it matter if y ou buy that theory ? No, i t doesn’t, becaus e h e doesn’t even have to be there. He doesn’t e v en have to be the o ne who wielded t h e m u rder weapon. He was. And he did.

And half of y ou can think it was one way a nd the other half think it’s the other way , doesn’t matter. That’s still a g uilty verdict.

After closing arg u ments, the trial judg e r ejected defense counsel’s renewed request to not g ive the aiding -and-abetting instruction. T he trial judg e then instructed the jury on aiding

and-abetting liability in addition to principal l i a b i l ity

. I n a g eneral verdict, the jury convicted Smith of first-deg r ee murder as charg ed in the information.

B

On d irect appeal, the California Court of A ppeal reversed Smith’s conviction. Citing Pe o p l e v

. Perez
, 113 P.3d 100, 104 (Cal. 2 0 05), the court ex plained that before a jury may convict a defendant under an aiding -and-abetting theory

, the prosecution must prove that someone other t h a n t he defendant committed the crime. The c o u rt then held that because “ no proof wa s p resented that another p erson participated inS M I T H V

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accomplishing ” the k i l ling of Minnie Smith, “the evidence f a i led to support the [ trial c ourt’s] g iving of aiding a n d abetting instructions in this case.” The court noted that “the prosecutor proceeded solely on the theory defendant killed his wif e.” F inally

, the court held that the trial court’s instructional error prejudiced Smith’s trial.

On review, the California Supreme Court vacated the court of a ppeal’s decision and remanded for reconsideration of the prejudice determination i n l i ght o f People v. Guiton
, 847 P.2d 45 (Cal. 1993). Guiton ha d a p p l i ed the U.S. Supreme Court’s decision in Griffin v. Unite d States
, 502 U.S. 46 (1991), holding that where a jury is presented with two theories of g uilt, one factually supported and the other not, “the appellate c ourt should a ffirm the judg ment unless a review of the entire record affir matively demonstrates a reasonable probability that the j u ry i n fact found the defendant g uilty solely on the unsupported theory

. ” 847 P.2d at 53.

Apply ing the Guiton / G riffin prejudice standard, the court of a p p e al then concluded that the factually u n supported instruction was not prejudicial err o r because there was no affirmative indication in the record that the jury based its
g uilty verdict solely on a i d i n g a nd abetting

. 1 T h e 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 ex amine the fireplace

1 In do in g so , th e c o u rt o f ap p eal ap p aren tly m ain tain ed its p rev io u s

co n clu sio n th at, co n trary to w h at th e trial j u d g e d e t e r m i n ed

, t h e aid in g

an d

- ab ettin g in stru ctio n w as n o t su p p o rted b y th e ev id en ce b ec a use th e p ro secu tio n p rese n t e d n o p ro o f th at an o th er p erso n p articip ated i n th e

m u rd er.S M I T H V

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tool an d S m ith’s medical r ecords. The court said these requests indicated that the jury was focused on whether Smith had the streng th to b eat his wife to death, and not on whether he aided and abetted someone else.

After determining that t h e t rial court’s aiding -andabetting instruct i o n w a s not, by itself, p rejudicial error, the
court of appeal also rejected Smith’s claim th a t the prosecution failed to provide him with constitu t i o nally adequate notice of i t s aiding -and-abetting theory

. F irst, the
court e x plained, quoting People v. Diaz
, 834 P.2d 1171, 1203 (Cal. 1 992), that “‘under [ California’s] statutory scheme, an accusatory pleading charg ing a d efendant with murder need
not specify the theory of murder o n which the prosecution intends to rely .’” Ba sed o n 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.

N ex t, the c ourt o f appeal acknowledg ed, quoting Diaz
, 834 P.2d at 1203, that “‘there are sit u a t i o n s in which the United States Constitution may requir e g reater specificity ’” concerning the basis f

or the def

e n d an t ’ s liability

. I t then concluded that the e vidence at Smith’s prelimin ary

e x a m i n a t i o n p r o v i d e d t h a t a d d i t i o n a l s p e c i f i c i t y

. Specifically

, the c o urt pointed t o t h e preliminary h earing testimony of Detective McShane about the i n criminating
statements that D avi d Morag a claimed Smith made while they were housed tog ether in the same cell. The court f ound that this testimo n y “ s ug g ests defendant may not have personally commi t t e d the murder.” The court therefore conclu d e d t hat “even in the absence of an aider and abettor liability alleg a tion in the information, the evidence presented
at defendant’s preliminary ex amination meaning f ullyS M I T H V

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apprised him of the potential for an aidi n g and abetting theory .”

F inally

, the court of appeal found that the prosecution did
not “ambush” Smith with the aiding -and-abetting theory because “[ t] h e prosecution’s request for aiding and a b e t t ing liability instructi o n s occurred during the parties’ g eneral discussion of the jury instructions and not just prior to closing
arg ument,” and because the prosecution only mentioned the aiding -and-abetting theory in its rebuttal arg ument. The court affirmed Smith’s conviction. The California Supreme Court denied a petition for review without citation or comment.

I n his federal habeas pe t i t i on, Smith ag ain claimed that his constitutional rig ht to a dequate notice of the n ature of the charg es ag ainst him was vio l at e d when the trial court instruc t e d the jury on aiding -and-abetting liability

. 2 The district court ag reed and adopted th e m a gistrate judg e’s recommendation to g rant Smith’s petition. Th e state timely appealed.

I I

W e review de novo the district court’s decision to g ra n t

a h abeas petition, and we review the district court’s underly ing factual f

inding s for clear error. Merolillo v. Y a tes , 663 F

. 3d 4 44, 453 ( 9th Cir. 2011). W e may affirm the district court’s d ecision on any g round supported by the record, even if it differs from the district court’s rationale. Id.

2 In ad d itio n to h is n o tice claim

, S m ith raised an o th er claim n o t at issu e in th is ap peal.S M I T H V

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B e cause Smith f

iled h is federal habeas petition after April 24, 199 6
, 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, 3 36 (1997). Under § 2254, a st ate prisoner may not obtai n federal habeas relief for any claim that was adjudicated on the merits by a state court unless the
state court’s decision was (1) “contrary to” clearly e stablished federal law as determined by the Supreme Court
, (2) “involved a

n unreasonable a

pplication o f

” such clearly established law, or (3) “ was based o n an unreasonable determination of the facts” in lig ht of th e record b efore the
state court. 28 U.S.C. § 2254(d ); Harrington v. Richter

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

A

The Six th Amendment and basic princip les of due process g uarantee a criminal defendant the fund a m e n t a l rig ht to be informed o f the nature and c ause of the a c c u s ations ag ainst him so that he may have a meaning ful opportunity to p repare

an adequate defense ag ainst every issue r aised by those accusations. S

ee U.S. Const. amend. VI (“ I n all criminal prosecutions, the accused s h al l enjoy the rig ht

. . . to be informed of the nature and cause of the accusation

. . . .”); Cole v. Arkansas

, 333 U.S. 196, 2 01 ( 1948) (“No p r inciple o f procedu ral due process is more clearly e stablished than that

no tice of the specific c harg e, and a chance to be heard in a trial of the issues raised by that charg e, if desired, are a mong the c onstitution a l rig hts of e v e r y accused in a criminal proceeding s in all courts, stat e or federal.”); In re Oliver

, 333 U.S. 257, 273 (1948) (“A person’s rig ht to reas o n a b le notice o f a charg e a g a inst him, and an opportunity to be heard i n his defense—a rig ht to h is d ay in court—are basic in o u rS M I T H V

. L O P E Z 17

sy stem of jurisprude n c e

. . . .”). N otice must be sufficiently detailed to enable a defendant to address all the releva n t issues in his defense. Russell v. United States
, 369 U.S. 749, 766–68 ( 1962) (Six th Amend m ent violated where an indictment left the “chief issue undefined,” thereby allowing “the p rosecution f

ree to roam at l a rg e” and present the defendant “with a different theory , or . . . no theory

at all” at
every stag e of the criminal proceeding s). Therefore, we have repeatedly r ecog niz ed that a defendant who is cha r g ed with first-deg ree murder is entitled to n otice of wha t specific theory of murder the prosecution intends to pursue. See, e.g. , Murtishaw v. W

oodford

, 2 44 F .3d 926, 953–54 ( 9 th Cir. 2001) (rig h t to notice o f the prosecution’s felony -murder theory ); Morrison v. Estelle

, 981 F. 2 d 425, 428 (9th Cir. 1992) ( same); Sheppard v. R e es , 9 0 9 F .2d 1234, 1235 (9th Cir. 1 9 90) ( same); Givens v

. Houseright

, 786 F .2d 1378, 1380–81 (9th Cir. 1986) (rig ht to notice of the prosecution’s murder-by -torture theory

).

T h e starting point for determining whether a defendant received a dequate notice of the charge s a gainst him is the charg ing document. Gautt v. Lewis
, 489 F .3d 993, 1 003 (9th Cir

. 2 0 07). The charg ing document “must in some appreciable w ay apprise the defendant of the charg es ag ainst him so that he may p repare a defe n s e a ccording ly .” Id. at 1004; Givens
, 786 F .2d at 1380. W hen the c h a r g ing document does not specify t h e prosecution’s theory of a crime, trial and pretrial proceeding s may nonetheless provide

a d efendant w ith constitutionally ade q u a t e notice. F o r

ex a mple, a defendant may receive notice of the prosecution’s theory f rom the prosecutor ’ s opening statement, see M urtishaw

, 255 F .3d a t 954; Calderon v. Prunty
, 59 F. 3 d 1005, 1 009 (9th Cir. 1 995), or the e v idence presented at trial,

see Murtishaw

, 255 F .3d at 954 ; M o r rison
, 9 81 F .2d atS M I T H V

. L O P E Z

18

428–29. 3 W e also may ex amine the trial record to determine

w h ether the defendant knew that a particular theory was o n the table. See Murtishaw , 255 F .3d at 954.

I n limited circumstances, the a ctions of the prosecut i on may lead the d efendant to r easonably believe that a particular theory is off the table, notwithstanding any prior notice from the charg ing document. I n S heppard v. Rees
, the information charge d t he defendant with one c o u nt of murder under California Penal Code § 187, and the prosecution t ried the

case on the theory that the defendant personall y committed premedi tated murder. 9 09 F

. 2d at 1235. The concept o f felony -murder was never mentioned, directly o r i ndirectly

, during the pretrial proceeding s, opening state m e n t s, o r trial. Id. Nor was there any mention of felony -murder w h en the judg e settled the jury instructions. Id. B ut the morning a fter the instructions conference, and just bef o r e closing
arg uments, the prosecution requested an i nstruction on felony -murder, which the trial court g a v e o v er a defense objection. Id. at 1235–36. On appeal

, w e a gr eed w ith the state’s concession that under the circum s t a n c es of that c ase, the f elony

- mur d e r instruction violated the defendant’s

3 In Mo rriso n , w e h eld th at a d ef en d an t receiv ed co n stitu t i o n a lly ad eq u ate n o t ice o f th e p ro secu tio n ’ s f elo n y

- m u rd er th eo ry in p art t

h ro u g h
t h e j u ry i n stru ctio n s th e p ro secu to r su b m itted tw o d ay s b ef

o re clo si ng arg u m en ts. 9 8 1 F.2 d at 4 2 8– 2 9. Ho w ev er, m o re recen tly w e f o u n d th e arg u m en t “ tro u

b leso m e” th at “

j u ry i n s tru ctio n s o r clo sin g arg u m en ts—

su re sig n s t h a t t h e en d of a t rial is d raw in g n ear—co u ld su bstitu t e f or

su f f icien t n o tice to a d ef

en d a n t o f th e ch arg es th at h av e b een lev eled
ag ain st h im .” Ga u tt , 4 8 9 F .3 d at 1 0 1 0 (em p h asis in o ri g i n al). A j u ry in stru ctio n “ ca n n o t i tself serv e as th e req u isite n o t ice o f th e ch arg ed

co n d u ct, co m in g as it d o es a f ter th e d e fe n d an t h as settled o n a d ef en s e strateg y an d pu t o n h is ev id en ce.” Id

. Nev erth eless, in Ga u t t w e assu m ed

w ith o u t d ecid in g th at j u ry in s t ru ctio n s “ can b e p arsed f or ev id en ce of

n o tice to th e d ef

en d an t.” Id

.S M I T H V

. L O P E Z 19

fundamental rig ht to notice of the n ature o f t h e charg e s ag ainst him because “a pattern o f g overnment conduct affirmatively misled the d efendant, deny ing him an effective opportunity to prepare a d e f e nse.” Id. at 1 236 (emphasis removed). The principal evil, we ex plained, was that

the p rosecutor “ambushed” the defense with a

new theory o f culpability after the evidence

was already in, after b oth sides had rested, a nd after the jury i n structions w ere settled. This

new theory then appeared in the form o f

unex p e cted jury instructions p e rmitting the jury to convict on a theory that was n e i ther subject to a dversarial t esting

, nor defined in advance of the proceeding

.

Id. at 1237.

Sheppard was a “nar r o w r uling ,” and w e have disting uished it where the facts of a case varied even slig htly

. F or e x ample, in Morrison we h eld that the defendant h a d adequate notice of the p rosecution’s felony -murder theory from the evidence presented at trial. 981 F .2d at 428. W e also held that the defendant was not “ambushed” by the felony -murder theory because defense counsel had a full two day s to p repare for c l o s i n g arg uments after the prosecution requested a f

elony -murder theory

. Id. L ikewise, in Stephens

v. Borg we found no a mbush where d efense counsel had five d a y s to prepare for closing a rg uments after receiving n ot i c e of the prosecution’s intention to rely on a felon y -murder theory . 59 F .3d 932, 936 (9th Cir. 1995).

No n etheless, Sheppard remains instructive. Althoug h it

was a pre-AEDPA case, it f a i thfully applied the principlesS M I T H V

. L O P E Z

20

enunciated b y the Sup reme Court in Cole

, Oliver

, a nd Russell

.

B

The district court correc t l y concluded that Smith’s rig ht
to notice of the nature of the charg es ag ainst him was v iolated when the trial court g ave the prosecution’s requested aiding

and-abetting instruction. This case is indisting uishable from Sheppard : by r e q u esting the jury instruction just before closing arg ument and without any prior indication that it was pursuin g a

n aiding -and-abetting theory

, the prosecution ambushed Smith and denied him a meaning ful opportunity to prepare his defense.

The information c harg ing Smith with first-deg ree murder

was initially suffi c i e n t to put h im on notice that he could be convicted either as a p rincipal or as an aider-and-abettor. See Carothers v

. R h a

y , 594 F

. 2d 225, 229 (9th Cir. 1 979) (holding that a defendant who was charg ed with first-deg r ee murder had constitutionally adequate notice that he could be convicted as an aider and abettor; u n d er s t ate law, any o ne who participated in the commission of a crime was liable a s

a principal reg ardless of his level of participation). I n C a l i f o rnia, aiding and abetting a c rime is the sam e substantive offense as perpetrating the crime, so aiders a nd abettor s may be punished as principals. Cal. Penal Code § 31; People v. Jenkins , 997 P.2d 1044, 1130 (Cal. 2000).

However, notw i t h s tanding any notice p rovided b y the information, the p r o s e c u

t i o n ’s conduct throug hout the pretrial and t rial p roceeding s affirmatively led Smith to reasonably believe that it would not rely on an aiding -and-abetting liabili t y theory

. At the very beg inning of his openingS M I T H V

. L O P E Z 21

statement, the prosecutor told the jury that “the evidence will show that that man o ver there at the e nd o f counsel table [ i.e., Smith]

, wearing the nice sweater, m urdered his wife of 27 o r 28 y ears, and then h e stag ed the crime scene to make it look like a burg lary to avoid d e tection.” (emphasis added). L ater, the prosecution ag ain told the j u r y that “the defendant bludgeoned [ Minnie Smith] to death, b ound h er arms behind her with a wire coat hang er, and then stag ed the scene to look like a burg lary .” (emphasis added). Neither statement permits th e i n terpretation that Smith acted with or throug h another p erson, so the prosecu t i on made clear that it was pinning Smith as the sole perpe t r a tor of the murder. Cf. Murti s h a w , 255 F .3d at 954 ( finding that the defendant received adequate notice o f the prosecution’s theory of t he murder from the prosecutor’s opening statement).

L i k e i t s o pening statement, the p rosecution’s ca s e

- i n

- c h i e f
p r e cluded the p ossibility that a third person was involved in Minnie Smith’s murder. The prosecution introduced evidence s h o w i n g that the DNA found on Minnie Smith’s body

, the murder weapon, a nd other objects at t h e murder

scene matched the DNA of only three people: Marvin Smith, Minnie Smith, and a crime lab technician who visite d t h e murder scene. F rom these actions, Smith re a s o n a bly could have drawn the inference that the prosecution was n ot try ing him as an aider and abettor. I ndeed, the prosecution’s initial closing a r g ument confirmed that inference: it emphasiz ed 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 p resence, and then arg u ed that the absence of another individual’s DNA
at the murder scene meant that no u nidentified perpetrator could have killed Minnie Smith.S M I T H V

. L O P E Z

22

Conversely

, and as the California Court of Appeal
recog niz ed, the prosecution p resented no evidence a t trial to support an a iding -and-abetting theory

. Therefore, unlike those cases where we h a ve found constitutionally adequate notice from the presentat i o n o f e vidence, there was nothing
at trial that mig ht have indicated to Smith that aid i n g- a ndabetting liability was on the table. Cf. Carothers

, 594 F .2d at 229 ( holding that there was notice of an aiding -and-abetting theory w h e r e the defendant was charg e d with first-deg r ee

mu r d er and the e v idence showed that a nother person accompanied the defendant to the scene of the crime).

Smith’s conduct at trial further supports the conclusion that he h ad no meaning ful notice of the prosecution’s intent
to pursue an a iding

- and-abetting theory

. See Murtishaw

, 255 F .3d at 954 (ex plaining that we may ex a mine the defendant’s conduct for evidence of constitutionally adequate notice). Defense c o unsel presented an a libi and argu e d t hat Smith was phy sically incapable of blud g eoning his wife to death. These defenses would have been meaning less ag ainst

an accusation that h e somehow assisted or wor k e d t h roug h another person to kill Minnie Smith. F urthermore, unlike the defendant in Murtishaw

, Smith never questioned a n y witnesses with res p e ct to the possibility that he participated in the murder with another person. See id.

Unlike the defendants in Morrison and Stephens

, w ho h ad several day s after the jury instructions conference to prepare

an arg ume n t to counteract the prosecution’s unex pected theory

, closing arg uments in this case com m e n c ed almost immediately after the trial judg e ag ree d t o g ive the

unex p e cted instruction. Cf. S tephens

, 59 F .3d at 9 3 6 ; Morrison
, 981 F .2d at 428. I n fact, defense counsel had only the lunch recess to formulate a response to the prosecution’sS M I T H V

. L O P E Z 23

new theory

, and the prosecutor waited u n t il his rebuttal to raise the a i d ing -and-abetting theory

, depriving defense counsel of any opportunity to actually respond. As in Sheppard

, the prosecution h ere requested the new instruction the same day as closing arg uments. S ee 909 F .2d at 1235–36. Moreover, unlike Morrison
, there was no evidence presented
at Smith’s trial t o gi v e him a ny inkling that the prosecution would ask for an aiding

- a n d

- a b etting instruction. Cf. 981 F .2d at 4 2 8. Therefore, Smith’s c o n stitutional rig ht to notice, under Cole

, Oliver , and R ussell , was violated.

The state arg ues that Smith should have been aware that aiding -and-abetting liability w as on the table because his defense theo r y n ecessarily implied that another person murdered his wife. Contrary to the state’s log ic, imp l y i ng that someone else killed the v i c t i m does not necessarily invoke a new question as to a iding and abetting

. I ndeed, the defense theory was that Matthews had an independent motive
to burg lariz e the house, and he knew facts a b out the murder

scene unknown to others. However, poin t i n g h is fing er at Matthews did not automatically implica t e Smith a s Matthews’s a ccomplice, and it certainly did not show that he knew the prosecution w as pursuing a n aiding -and-abe t ting theory

. Similarly

, Matthews’s statem e n t s o n crossex a mination that Smith would have acted with a man named Nelson Nealy t o k i ll Minnie did not raise the possibility o f aiding

- and-abetting liability

. Matthews’s comments were totally uncorroborated and speculative, and were in answer to

a larg er line of questions by which defense counsel tried t o sug g est that Matthews may have been the murderer.

The state also echoes the Cali f o rnia Court of Appeal’s conclusio n that the preliminary hearing testimony o f Detective McShane “meaning fully apprised” Sm ith of theS M I T H V

. L O P E Z

24

potential for an aiding -and-abetting theory .” 4 I t is p uz z ling

, however, how any o ne c ould divine even a remote possibility of an aiding -and-abetting theory from the preliminary h earing transcript. Morag a’s sta t e m ents to Detective McShane
sug g ested only that Smith h ad a motive to kill h is wife a nd
t h at he took several steps to make the house appear a s i f i t had been burg lariz ed. His statements d id not indicate that Smith took these steps s o t h a t some other, unmentioned
person could enter the house and c o mmit the murder. Nor did defense c oun s e l ’s cross-ex amination of Detective McShane raise the possibility that the prosecution woul d p u r s ue an aiding -and-abetting theory

. W h en defense counsel a sked the detective whether Morag a k new any details about the murder—inclu d i n g t

h e m a n ner of the killing

, w ho specifically did the killing

, an d when the killing occurred—she was seeking to impeach Morag a ’s c r e dibility by showing that Morag a, after spending six months in a cell with Smith, knew
very little about the crime that he claimed Smith confessed to committing

. B y impeaching Morag a , the defense did not acknowledg e that the prosecution w as pursu i n g an aiding

and-abetting theory

. I ndeed, it does not even appear that the defense’s c ross-ex amination g ave the prosecution that idea—the prosecution’s trial b r i e f and motions in limine, filed nearly three months after the preliminary hearing

, arg ued that Morag a’s testimon y s erved only to identify Smith as the perpetrator.

I n 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 T h e d i strict co u rt clearly erred in statin g th at Sm ith accep ted th is

co n clu sio n

. Sm it h c h a l l e n g ed it in h is f ed eral h ab eas p etitio n , an d h e

co n tin u es to ch allen g e it o n

ap p eal.S M I T H V

. L O P E Z 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 ins t r u c t i ons conference, n o one had e ver mentioned the p ossibility of an

a i ding

- and-abetting theory

. Therefore, when the trial co u r t instructed the jury on aiding

- and-abetting liability

, Smith was “ambushed” and his f

undamental rig ht to notice o f the nature of the accusations ag ainst h i m w a s denied in violation o f Cole

, Oliver , and Russell

.

C

The d istrict court correctly determined that the trial court’s error in instructing the jury in aiding -and-abetting liability was not harmless. W e m ust g rant relief if the constitutional e r ro r “had substantial and injurious effect o r influence in d etermining the jury ’s v erdict.” Brecht v

. Abrahamson

, 507 U.S. 619, 623 (1993). Reversal is r equired where “the record is so evenly balanced that a ‘conscientious judg e is in g rave doubt as to the harmlessness o f a n e rror.’” Gautt
, 4 89 F .3d at 1016 (quoting O’Neal v. McAninch

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

5 T h e Su p rem e Co u rt h as n o t stated d ef in itiv ely w

h eth er a v i olatio n of th e Six t h A m en d m en t rig h t to n o tice is su bj ect to h arm less erro r an aly sis. Ga u tt , 4 8 9 F

. 3 d a t 1 0 1 5

. In Sh ep p a rd

, w e d ecid ed t

h at v io latio n o f th e Six th A m en d m en t rig h t t o n o tice w as stru ctu ral erro r req u irin g au to m atic

rev ersal. 9 0 9 F.2 d at 1 2 3 8

. Ho w ev er, in Ga u tt w e q u estio n ed th at p art of S h ep p a rd b ecau se it p red ated sev eral S u prem e C o u rt d ecisio n s stressin g th e lim ited categ o ry o f stru ctu ral e r r o r s. G a u tt , 48 9 F.3 d at 1 0 1 5

. Ho w ev er, w e d eclin ed to reach th at issu e in Ga u tt , b ecau se w e f ou n d th at th e erro r in th at case w as n o t h arm less. Id

. at 1 0 1 6

. W e d o th e sam e h ere b ecau se w e co n clu d e th at th e trial co u rt’ s erro r w as n o t h arm less.S M I T H V

. L O P E Z

26

Here, the trial judg e a cknowledg ed that Smith presented

a strong d efense and that the evidence on both sides was closely balanced. The California Court of Appeal ex pressed

a similar assessment in its f i r st decision, which described Smith as presenting “ an a rg uably successful d e f

ense concerning his identity as the perpetrator of a crime.” Given this evenly bala n c e d r e cord, and the f act that the p rosecutor invited the jury to speculate—at the last minute and without
any evidence—about Smith’s liability as an aider and abettor,
t h e district c ourt was correct to have g rave doubts abou t t h e validity of the jury ’s verdict.

D

F or the purpose of determining whether § 2254(d) bars habeas r elief, w e review t h e last reasoned state-court decision. Gill v. Ayers
, 342 F .3d 911, 9 17 n.5 ( 9th Cir. 2003). Here, because the California Supreme Court denied Smith’s petition for review without citation o r comment, w e “look throug h” the California Supreme Court’s decisio n to the California Court o f Appeal’s second deci s i o n , in which it affirmed Smith’s conviction on remand from the California S u p r eme Court. Id. Section 2254(d) does not bar h a b e a s

r e l i e f where the state court’s decision was “ based on a n unreasonable determination of the f acts” in lig ht of the record before the state court. 28 U.S.C. § 2254(d)(2).

A s t a t e court’s determination of facts is unreasonable “where the state court[ ] plainly misapprehend[ s] o r misstate[ s] the r e c o r d in making [ its] finding s, and the misapprehension g oe s t o a material factual issue that is central to petitioner’s claim.” Id. at 1001. Here, the Californi a Court of Appeal determined that Detective McShane’s preliminary hearin g t e stimony about statementsS M I T H V

. L O P E Z 27

Smith p u rportedly made to Morag a “meaning fully apprised [ Smith] of t h e potential for an a iding and abetting theory

. ” B ut, as we h a ve noted above, the purported statements simply do not support such a theory

. T he California Court of Appeal

a l so determined that “[ t] he prosecution’s request for aid i n g and abetting liability instructions o c c urred during the parties’
g eneral discussion of the jury instructions and n o t just prior
to closing arg ument.” (emphasis added). T h i s i s also a misstatement of the record. J ust as in Sheppard

, the prosecution r equested, and the trial judg e decided to issue, the aiding -and-abetting instruction on the morning of the day o f closing arg u ments. S

ee 909 F .2d a t 1235. Def e n s e counsel had only the lunch recess to f ormulate a response to the new theory

.

At oral a rg ument, the state sug g ested that the trial court’s

error i n g iving the a iding -and-abetting instruction should be analy z ed solely u nder P eople v. Guiton and Griffin v. United States

. 847 P.2d a t 51. U nder those c a s es, r eversal of a conviction is not required solely b e c ause a jury is in s t ructed

on a factually unsupported theory

. G r i ffin

, 502 U.S. at 60; Guiton
, 847 P.2d at 52. Rather, “the appellate court should affirm the judg ment unless a review of the entire r e c o r d affirmatively demonstr a t es a reasonable probability that the ju r y in f

act found the defendant g u ilty solely on the unsupported theory .” Guiton
, 84 7 P.2d at 53; see G riffin

, 502 U.S. at 59. H er e , the California Court of Appeal

co n c l uded that under Guiton
, the trial court’s error did not require reve rsal o f Smith’s conviction because there was no affirmative indication in the record that the jury based its
g uilty verdict solely on the factually unsupported aiding -andabetting the o r y

. The state sug g ests that because the California Court o f Appeal’s d e c ision with respect t o the Guiton questio n w as neither “contrary to” nor “anS M I T H V

. L O P E Z

28

unreasonable application of” Griffin

, § 2254(d)(1) precludes federal habeas relief o n Smith’s Six th Amendment notice claim.

This arg ument conflates two f undamentally dif

f e r ent inquiries. W hether th e trial c ourt’s factually u n supported aiding -and-abetting instruction required revers al by itself is

a separate question from whether Smith had adequate notice of—and a meaning ful opportunity to defend ag a inst—the prosecution’ s a i d i n g

- a

nd-abetting theory

. 6 Griffin and Guiton concern only

the former, while the Six th Amendment, Cole

, and Sheppard

concern the latter.

I n Griffin

, t h e r e w as never a ny doubt about what crime the defendant was c h a r ge d with and what theories the prosecution was try ing to p rove: the defen d a nt was charg ed with o ne count of c o n s p i racy with two objects—(1) defrauding

the I n ternal Revenue Service, and (2) defrauding
t h e Drug Enforcemen t A ge n c y ( “ D E A ” )

— a n d t h e prosecution alway s soug h t to prove b oth. 502 U.S. at 47. B ut because certain testimony anticipated by the p r o s e cution failed to materializ e, there was insufficient evidence to

con n e c t the defendant to the DEA o bject. Id. at 48. L ikewise, in Guiton the d efe n d a n t was charg ed with o ne count of selling or transporting cocaine, and the prosecution
soug h t to prove that the defenda n t t ransported cocaine and that he sold it. 847 P.2d a t 46–47. The problem was that the prosecution failed to p resent sufficient evidence in support o f its theory that the defendant sold cocaine, and the reviewing
court could not definitively determine fro m the g eneral verdict whether the jury

convicted based on the valid theory of transportation or the invalid theory of sale. Id. at 47.

6 T h e Calif

o rn ia Co u rt o f

A pp eal also treated th ese as sep arate issu es.S M I T H V

. L O P E Z 29

B e cause in both Griffin and Guiton
, it was clear from the beg inning what theories the prosecution soug ht to p rove, the defendant’s Six th Amendment rig ht to notice of the nature o f the accusations w as not implicated. G riffin

, 502 U.S. at 47; Guiton
, 8 47 P.2d a t 46–47 ; s e e a lso Griffin

, 502 U.S. at 48 ( e x p l aining that it was unnecessary to discuss the Six th Amendment). The only question in those cases was whether
courts should automatically reverse b ased on the assumption that, absent a contrary indication in the record, the jury based its verdict on a factually unsupported theory of the crime. I n contrast, in cases interpreting the S ix th Amendment’s
g uarantee o f notice, the problem was that the prosecution did
not articulate the specific charg es, enhancements, o r theories which it soug h t to prove. See, e

. g. , Russel l

, 3 6 9 U.S. at 766–68; Gautt
, 489 F .3d at 998–99; Sheppard

, 909 F .2d at 1235; G ivens
, 786 F .2d at 1380

. The Six th A mendment notice problem is separate and unrelated to the q u e s tion o f whether a factually unsupported jury instruction, by i tself, requires reversal.

F or 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 h olding that Smith was prejudiced by the trial court’s violation of his fundamental rig ht to notice of the accusations
ag ainst him. Guiton ’s prejudice standard is different from the Brecht harmless error standard, which applies to the violation alleg ed 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. B y contrast, under Brecht federal courts must

reverse a conviction if a constitutional error “had substantial

a n d injurious effect or influence in d etermining the jury ’ s

v e r d i c t .” Brecht

, 507 U.S. at 623. The Brecht standard i sS M I T H V

. L O P E Z

30

different, and less demanding

, than the Guiton standard. Cf. Mancuso v. Olivarez

, 292 F .3d 939, 9 5 0 ( 9 t h Cir. 2 002) (“‘The inquiry cannot be merely whether there was enoug h to support the result, apart from the phase affected by the error. I t is rather, even so, whether the erro r i t s e lf had substantial influence. I f so, or if one is left in g rave doubt, the conviction
cannot stand.’” (quoting Kotteakos v. United States
, 328 U.S. 750, 765 (1946))). A ccording ly

, we are not constr a i n ed b y § 2254(d)(1) in deciding that the trial court’s error in this case

was n ot harmless. See W

illiams v. Taylor

, 529 U.S. 3 62, 406 (2000).

CONCL USI ON

The prosecution’s c onduct affirmatively led Smith to believe it wou l d not rely o n an aiding -and-abetting liability theory

. T hus, the a iding -and-ab e tting jury instruction violated Smith’s fundamental rig ht to r eceive notice of the
nature of the charg es ag ainst him and have a m e a ning f ul opportunity to prepare a defense. Given the closely balanced evidence, we cannot say that the trial court’ s error was harmless. Therefore, we affirm t h e judg ment of the district court g ranting a conditional writ of habeas corpus.

AF F IRMED.