                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 MARVIN VERNIS SMITH,                       No. 12-55860
     Petitioner-Appellee,
                                             D.C. No.
               v.                   8:11-cv-01076-ODW-MRW

 RAUL LOPEZ, Warden,
   Respondent-Appellant.                      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 aiding-
and-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 Respondent-
Appellant.

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 specifically did 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 try Smith 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 surgery weeks 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-and-
abetting 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-and-
abetting 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 aiding-
and-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 solely on the theory defendant 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 aiding-
and-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 jury was 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-and-
abetting 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) “contrary to” clearly established
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 aiding-
and-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-and-
abetting 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 constitutionally adequate
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 cross-
examination 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.”4 It is puzzling,
however, how anyone could divine even a remote possibility
of an aiding-and-abetting theory from the preliminary hearing
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 the manner 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 aiding-
and-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-and-


  4
    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-and-
abetting 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.
