Filed 12/4/17



      IN THE SUPREME COURT OF CALIFORNIA

In re HECTOR MARTINEZ               )                               S226596
                                    )
           on Habeas Corpus.        )                        Ct.App. 4/1 D066705
                                    )
                                    )                        San Diego County
                                    )                     Super.Ct. No. SCD224457
____________________________________)


        Petitioner Hector Martinez was convicted of first degree murder after the
jury was instructed on both a direct aiding and abetting theory and a natural and
probable consequences theory. After his conviction, we held in People v. Chiu
(2014) 59 Cal.4th 155 (Chiu) that a natural and probable consequences theory of
liability cannot serve as a basis for a first degree murder conviction. It is
undisputed that the trial court in this case committed Chiu error. The sole question
is whether the error was prejudicial. We hold that on a petition for writ of habeas
corpus, as on direct appeal, Chiu error requires reversal unless the reviewing court
concludes beyond a reasonable doubt that the jury actually relied on a legally valid
theory in convicting the defendant of first degree murder. Because we are unable
to reach such a conclusion based on the record here, we vacate Martinez’s first
degree murder conviction.
                                          I.
        Martinez was convicted of the first degree murder of Guillermo Esparza
(Pen. Code, § 187, subd. (a) (all undesignated statutory citations are to this code)),
assault of Esparza with a semiautomatic firearm (§ 245, subd. (b)(1)), and assault
of Jimmy Parker with force likely to cause great bodily injury (§ 245,



                         SEE CONCURRING OPINION
subd. (a)(1)). In a general verdict, the jury found true allegations that each crime
was committed for the benefit of, at the direction of, and in association with a
criminal street gang (§ 186.22, subd. (b)(1)); that Martinez was vicariously armed
with a firearm in the commission of the murder (§ 12022, subd. (a)(1)); that the
codefendants were principals in the commission of the murder; and that a principal
used a firearm and proximately caused great bodily injury and death (§ 12022.53,
subds. (d), (e)(1)). The trial court sentenced Martinez to a determinate term of six
years plus an indeterminate term of 50 years to life.
       The facts of the crime committed by Martinez and his codefendant Darren
Martinez (no relation to petitioner) are summarized by the Court of Appeal as
follows: Late in the evening on August 20, 2009, Darren’s girlfriend was with
Darren and Martinez when she saw Darren with a gun. She objected to his having
a gun at her house and asked him to take the gun away. Darren, accompanied by
Martinez, left the house but did not dispose of the gun. A few hours later,
Martinez, Darren, and Darren’s girlfriend were in her car at a drive-thru restaurant.
She noticed a gun in Darren’s lap. When she was driving home, Darren suddenly
told her to stop the car. Martinez and Darren got out of the car and ran up to
Jimmy Parker and Guillermo Esparza, who were walking down the street.
Martinez asked Parker, “Where are you from?” Parker mentioned the name of a
group that was not a gang but was engaged in tagging. Martinez punched Parker,
and they fought. Parker heard Darren say, “This is Lomas,” and Darren shot
Esparza, who died as a result. Martinez hit Parker once more after the gunshot
was fired. Martinez and Darren then ran from the crime scene.
       At trial, Detective Nestor Hernandez testified that Martinez and Darren
were documented Lomas gang members, that gang members commonly carried
weapons when preparing to assault someone or enter rival gang territory, that the
question “where are you from?” is a challenge to those perceived to be trespassing

                                          2
on gang territory, and that gang members can be expected to stand up for one
another.
       The court instructed the jury with CALCRIM Nos. 400 and 401 regarding
aiding and abetting, and with CALCRIM No. 403 regarding the natural and
probable consequences doctrine. CALCRIM No. 403 provides in part: “To prove
that a defendant is guilty of murder, the People must prove that: [¶] 1. The
defendant is guilty of assault and/or battery; [¶] 2. During the commission of
assault and/or battery, a coparticipant in that assault and/or battery committed the
crime of murder; [¶] AND [¶] 3. Under all of the circumstances, a reasonable
person in the defendant’s position would have known that the commission of the
murder was a natural and probable consequence of the commission of the assault
and/or battery.”
       Martinez timely appealed, contending among other things that his first
degree murder conviction should be reversed because the trial court’s instruction
on the natural and probable consequences doctrine “failed to correctly inform the
jury that [the defendants were] guilty of premeditated murder only if the jury
found that premeditated murder, and not merely murder, was the natural and
probable consequence of the target crimes.” The Court of Appeal rejected that
argument based on its reading of People v. Favor (2012) 54 Cal.4th 868, 878–880.
We denied Martinez’s petition for review without prejudice to any relief he might
obtain under Chiu, which was pending before this court at the time. We
subsequently held in Chiu that a natural and probable consequences theory cannot
be a basis for convicting a defendant of first degree murder. (Chiu, supra, 59
Cal.4th at p. 166.)
       Martinez filed this writ petition in the Court of Appeal, arguing that he is
entitled to have his conviction reduced to second degree murder under Chiu.
While recognizing that the jury instruction on natural and probable consequences

                                          3
was error under Chiu, the Court of Appeal affirmed Martinez’s first degree murder
conviction because it was supported by “sufficient evidence.” We granted review
to address the proper standard of prejudice for Chiu error on a petition for writ of
habeas corpus.
                                          II.
       In Chiu, we said that “the connection between the defendant’s culpability
and the perpetrator’s premeditative state is too attenuated to impose aider and
abettor liability for first degree murder under the natural and probable
consequences doctrine, especially in light of the severe penalty involved and the
. . . public policy concern of deterrence. [¶] Accordingly, we hold that punishment
for second degree murder is commensurate with a defendant’s culpability for
aiding and abetting a target crime that would naturally, probably, and foreseeably
result in a murder under the natural and probable consequences doctrine. We
further hold that where the direct perpetrator is guilty of first degree premeditated
murder, the legitimate public policy considerations of deterrence and culpability
would not be served by allowing a defendant to be convicted of that greater
offense under the natural and probable consequences doctrine.” (Chiu, supra, 59
Cal.4th at p. 166.)
       We went on to say: “When a trial court instructs a jury on two theories of
guilt, one of which was legally correct and one legally incorrect, reversal is
required unless there is a basis in the record to find that the verdict was based on a
valid ground. (People v. Guiton (1993) 4 Cal.4th 1116, 1128–1129; People v.
Green (1980) 27 Cal.3d 1, 69–71.) Defendant’s first degree murder conviction
must be reversed unless we conclude beyond a reasonable doubt that the jury
based its verdict on the legally valid theory that defendant directly aided and
abetted the premeditated murder.” (Chiu, supra, 59 Cal.4th at p. 167.)



                                          4
       The Attorney General contends that a different standard of prejudice should
apply with respect to Chiu error when a defendant seeks to attack his conviction
not by direct appeal, as in Chiu, but collaterally through a petition for writ of
habeas corpus. The Attorney General relies on a line of our earlier cases in which
we said: “Habeas corpus is available in cases where the court has acted in excess
of its jurisdiction. [Citations.] For purposes of this writ as well as prohibition or
certiorari, the term ‘jurisdiction’ is not limited to its fundamental meaning, and in
such proceedings judicial acts may be restrained or annulled if determined to be in
excess of the court’s powers as defined by constitutional provision, statute, or
rules developed by courts. [Citations.] In accordance with these principles a
defendant is entitled to habeas corpus if there is no material dispute as to the facts
relating to his conviction and if it appears that the statute under which he was
convicted did not prohibit his conduct.” (In re Zerbe (1964) 60 Cal.2d 666, 667–
668 (Zerbe), italics added; see People v. Mutch (1971) 4 Cal.3d 389, 396 (Mutch)
[applying same standard]; In re Earley (1975) 14 Cal.3d 122, 125 (Earley)
[same].)
       In determining the prejudicial effect of Chiu error in a habeas corpus
proceeding, the Courts of Appeal have differed on the appropriate standard. (See
In re Johnson (2016) 246 Cal.App.4th 1396, 1406 [adopting Chiu standard of
prejudice and rejecting the standard set forth in the “older line of habeas corpus
cases”]; In re Lopez (2016) 246 Cal.App.4th 350, 360–361 [Zerbe and Mutch set
forth the proper standard for determining whether Chiu error is prejudicial in a
habeas corpus proceeding].)
       The justification for requiring habeas corpus petitioners to meet a more
demanding standard of prejudice was explained by Justice Traynor in In re Bell
(1942) 19 Cal.2d 488. Bell involved a county ordinance prohibiting labor
picketing. A portion of the ordinance prohibiting peaceful picketing was clearly

                                           5
unconstitutional, whereas another portion prohibiting various acts of violence was
clearly constitutional. (Id. at pp. 496–498.) The general verdict on its face was
ambiguous as to which portions of the ordinance the petitioners were convicted of
violating. The court recognized that “[t]he ambiguity of the judgment in the
present case would thus clearly warrant a reversal of the conviction on appeal or
other direct attack.” (Id. at p. 500, citing Stromberg v. California (1931) 283 U.S.
359, 363.) But the petitioners in Bell had exhausted their appeals, and habeas
corpus “is in the nature of a collateral attack, and a judgment that is collaterally
attacked carries with it a presumption of regularity. [Citation.] . . . The
presumption, however, is not conclusive in a habeas corpus proceeding but places
upon petitioners the burden of proving that their convictions were based not upon
the constitutional but upon the unconstitutional provisions of the ordinance.
[Citation.] Unless they can sustain this burden they must be considered as having
been convicted of violating the valid provision relating to acts of violence, and the
judgment must be upheld.” (Bell, at pp. 500–501.) In order to carry this burden, a
petitioner may rely on evidence outside the trial record. (Id. at p. 504.)
       As we have emphasized, this presumption of regularity stems from the
recognition that “ ‘habeas corpus is an extraordinary remedy “and that the
availability of the writ properly must be tempered by the necessity of giving due
consideration to the interest of the public in the orderly and reasonably prompt
implementation of its laws and to the important public interest in the finality of
judgments.” ’ ” (In re Reno (2012) 55 Cal.4th 428, 451.) The interest in finality
has led this court to develop various procedural bars to collateral attacks on the
judgment. The bar most relevant to this case is the so-called Waltreus rule: A
writ of habeas corpus will not issue for a claim that was raised and rejected on
appeal. (Reno, at p. 476; see In re Waltreus (1965) 62 Cal.2d 218, 225
(Waltreus).) There are exceptions to this rule. One such exception applies “when

                                           6
there has been a change in the law affecting the petitioner.” (In re Harris (1993) 5
Cal.4th 813, 841 (Harris).) To trigger this exception, the change in the law must
have retroactive effect. We have said that a change in the criminal law will be
given retroactive effect when a rule is substantive rather than procedural (i.e., it
alters the range of conduct or the class of persons that the law punishes, or it
modifies the elements of the offense) or when a judicial decision undertakes to
vindicate the original meaning of the statute. (In re Lopez (2016) 246 Cal.App.4th
350, 357–359.) Here, as the Attorney General concedes, Chiu is retroactive. (See
id. at p. 359.)
       The application of procedural bars and limitations on the retroactivity of
changes in the criminal law serves to protect the finality of judgments on collateral
review. The Attorney General argues that even when a petitioner has surmounted
these hurdles, as is the case here, the imposition of an additional hurdle –– a
heightened standard of prejudice that a habeas corpus petitioner must meet –– is
necessary to safeguard finality. But the case law applying the heightened standard
does not support this position. In many of the cases cited by the Attorney General,
there was no change in the law, and the court was simply asked to review a
constitutional claim rejected on appeal. (See Bell, supra, 19 Cal.2d at p. 495; In re
Klor (1966) 64 Cal.2d 816, 817–818, 822; Zerbe, supra, 60 Cal.2d at p. 667.) As
noted, the courts in these cases assigned habeas corpus petitioners “the burden of
proving that their convictions were based not upon the constitutional but upon the
unconstitutional provisions of the ordinance” (Bell, at p. 501) or the burden of
showing that “there is no material dispute as to the facts relating to his conviction
and . . . the statute under which he was convicted did not prohibit his conduct”
(Zerbe, at p. 668). These standards generally correspond to two other exceptions
to the Waltreus rule. First, “where the claimed constitutional error is both clear
and fundamental, and strikes at the heart of the trial process . . . an opportunity for

                                           7
a third chance at judicial review (trial, appeal, postappeal habeas corpus) [is]
justified.” (Harris, supra, 5 Cal.4th at p. 834.) Second, review of a previously
litigated claim is justified where the trial court acted in excess of jurisdiction and
“ ‘there [was] no material dispute as to the facts.’ ” (Id. at p. 840, citing Zerbe, at
p. 668.)
       Other cases cited by the Attorney General did involve a change of law. In
Mutch, supra, 4 Cal.3d 389, petitioner sought relief from a kidnapping conviction
in connection with a robbery pursuant to section 209 after this court clarified in
People v. Daniels (1969) 71 Cal.2d 1119, 1139, that such a conviction could not
be based on “movements of the victim [that] are merely incidental to the
commission of the robbery . . . .” (Mutch, at p. 394; see ibid. [Daniels overruled
the contrary rule on kidnapping set forth in People v. Chessman (1951) 38 Cal.2d
168, 192].) In Mutch, the court first determined that Daniels’s construction of
section 209 should be given retroactive effect because Daniels had not redefined
the crime of kidnapping but simply declared what the Legislature’s intent had been
in enacting the 1951 amendment to section 209. (Mutch, at p. 394.) The court
then recapitulated the Zerbe standard that a habeas corpus petitioner is entitled to
relief only “ ‘if there is no material dispute as to the facts relating to his conviction
and if it appears that the statute under which he was convicted did not prohibit his
conduct.’ ” (Id. at p. 396.) In Mutch, the petitioner was able to meet that burden.
(Id. at p. 399.) In Earley, a case in which the same issue was raised and the same
standard of prejudice articulated, the petitioner was not able to meet the burden,
and we denied relief. (Earley, supra, 14 Cal.3d at pp. 125, 132–133.)
       Unlike the present case, the petitioners in Mutch and Earley claimed they
were actually innocent of kidnapping under section 209 because the statute did not
proscribe their conduct. (Mutch, supra, 4 Cal.3d at p. 395 [“the issue is ‘whether
the acts of [defendant], on the record in this case, constitute the kind of conduct

                                            8
proscribed by section 209’ ”]; Earley, supra, 14 Cal.3d at p. 125 [petitioner seeks
relief “on the ground that his conduct did not violate section 209” as construed in
Daniels].) In evaluating this claim, the court applied the rule established in Zerbe
that “a defendant is entitled to habeas corpus if there is no material dispute as to
the facts relating to his conviction and if it appears that the statute under which he
was convicted did not prohibit his conduct.” (Zerbe, supra, 60 Cal.2d at p. 668.)
The granting of relief in such circumstances would in effect be a holding that there
was insufficient evidence to convict the petitioner of kidnapping when section 209
was properly construed, and it would therefore bar retrial on the kidnapping
charge. (See People v. Eroshevich (2014) 60 Cal.4th 583, 591.)
       Martinez’s claim is different. He contends the jury was improperly
instructed on what constitutes aiding and abetting a first degree murder. Such an
erroneous instruction deprives a defendant of the right to a jury trial under the
Sixth Amendment to the United States Constitution; that right implies a right to a
jury properly instructed in the relevant law. (See Neder v. United States (1999)
527 U.S. 1, 12.) A reversal of his conviction on that basis does not bar retrial.
(See People v. Collins (1992) 10 Cal.App.4th 690, 698.) A petitioner in these
circumstances does not carry the burden of demonstrating that his conviction was
based on insufficient evidence. Rather, once he has shown that the jury was
instructed on correct and incorrect theories of liability, the presumption is that the
error affected the judgment: “ ‘Jurors are not generally equipped to determine
whether a particular theory of conviction submitted to them is contrary to law —
whether, for example, the action . . . fails to come within the statutory definition of
the crime. When, therefore, jurors have been left the option of relying upon a
legally inadequate theory, there is no reason to think that their own intelligence
and expertise will save them from that error.’ ” (People v Guiton (1993) 4 Cal.4th
1116, 1125, quoting Griffin v. United States (1991) 502 U.S. 46, 59.) Of course,

                                           9
the presumption of error can be rebutted by a showing “beyond a reasonable doubt
that the jury based its verdict on the legally valid theory.” (Chiu, supra, 59
Cal.4th at p. 167.)
       Thus, both the nature and the procedural posture of the claim presented in
this case distinguishes it from the claims considered in the cases on which the
Attorney General relies. Because the claim was presented after a change in the
law given retroactive effect, it is not barred by Waltreus or any other procedural
rule designed to safeguard the finality of judgments against collateral attack. And
the claim does not allege actual innocence or insufficiency of the evidence; it
alleges a deprivation of the right to have a jury properly decide a defendant’s
culpability. Under these circumstances, it is inappropriate to place on a habeas
corpus petitioner the burden of proving that the jury relied on the legally incorrect
theory in order to vindicate his constitutional right to a jury trial. We hold that
such a habeas corpus petitioner is in the same position as a defendant raising this
type of error on direct appeal, and the same rule should apply: The “first degree
murder conviction must be reversed unless we conclude beyond a reasonable
doubt that the jury based its verdict on the legally valid theory that defendant
directly aided and abetted the premeditated murder.” (Chiu, supra, 59 Cal.4th at
p. 167.) We express no view on whether the same rule would apply to an
individual asserting the same claim in a habeas corpus petition when there has
been no intervening change in the law (cf. Bell, supra, 19 Cal.2d at pp. 500–501)
or whether such a claim would fit into some other exception to the Waltreus rule.
       The Attorney General argues in the alternative that we should adopt the
federal standard of prejudice articulated in Hedgpeth v. Pulido (2008) 555 U.S. 57,
derived from Brecht v. Abrahamson (1993) 507 U.S. 619, 637 (Brecht). Under
this standard, a collateral attack on a state court judgment in a federal habeas
corpus proceeding on the ground that the jury had been instructed on legally valid

                                          10
and invalid theories will succeed only if the error “ ‘had substantial and injurious
effect or influence in determining the jury’s verdict.’ ” (Hedgpeth, at p. 58.) The
high court has further clarified that neither party has a burden of proof or
persuasion, but that reversal of the verdict is required where “a conscientious
judge is in grave doubt as to the harmlessness of an error.” (O’Neal v. McAninch
(1995) 513 U.S. 432, 437.)
       The federal standard is based in part on the concern for preserving the
finality of judgments against collateral attack. (See Brecht, supra, 507 U.S. at
p. 637.) But it is not clear that what amounts to a “grave doubt” standard of
prejudice is fairer or more workable than the beyond a reasonable doubt standard
articulated in Guiton and Chiu. At least with respect to the type of claim that
Martinez raises in this case, the state law framework discussed above sufficiently
addresses such finality concerns and properly balances those concerns with the
need to correct serious constitutional error on collateral review. We decline to
adopt the federal standard.
                                         III.
       In this case, the Court of Appeal correctly recited the Chiu prejudice
standard. But the court did not go on to inquire whether it could conclude beyond
a reasonable doubt that the jury based its verdict on the legally valid theory that
Martinez directly aided and abetted the premeditated murder. Rather, it concluded
there was “sufficient evidence” that Martinez acted as a direct aider and abettor:
“Martinez was aware the codefendant carried a gun in the vehicle because he was
aware the codefendant had it earlier, and after the girlfriend had told the
codefendant to remove it from her house, Martinez accompanied the codefendant
who had promised to dispose of it. Further, the gang expert’s testimony provided
the jury with a basis to find that Martinez likely was emboldened to challenge
Parker and Esparza—by asking them where they were from—precisely because

                                          11
Martinez knew the codefendant was carrying a gun and Martinez relied on his
codefendant’s support as he attacked the others. Further, Martinez’s use of
violence would enhance the respect he received within the gang and for the gang
among rival gangs. Lastly, Martinez encouraged and facilitated the first degree
murder by attacking Parker, thus simultaneously preventing Parker from defending
Esparza, and freeing up the codefendant to focus exclusively on Esparza, which
the codefendant did by shooting and killing him.”
       The Court of Appeal’s analysis, while showing that the jury could
reasonably have found Martinez guilty as a direct aider and abettor of the murder
of Esparza, does not show beyond a reasonable doubt that the jury actually relied
on that theory. We conclude that the record does not permit us to rule out a
reasonable possibility that the jury relied on the invalid natural and probable
consequences theory in convicting Martinez of first degree murder.
       An instruction on an invalid theory may be found harmless when “other
aspects of the verdict or the evidence leave no reasonable doubt that the jury made
the findings necessary” under a legally valid theory. (People v. Chun (2009) 45
Cal.4th 1172, 1205.) The Attorney General points to nothing in the verdict
showing beyond a reasonable doubt that the jury made the findings necessary to
convict Martinez as a direct aider and abettor. The Attorney General’s position,
like the Court of Appeal’s, is based on its review of the evidence. But the
evidence in this case does not compel the conclusion that the jury must have relied
on a direct aider and abettor theory.
       The evidence shows that Martinez was engaged in a fight with Parker and
that the only assistance he rendered to his codefendant was incidental to his assault
on Parker –– that is, his assault prevented Parker from coming to Esparza’s
assistance. Although the Court of Appeal and the Attorney General may be
correct that there is sufficient evidence to convict Martinez of directly aiding and

                                         12
abetting, the evidence also supports the theory that the murder was a natural and
probable consequence of the assaults that Martinez and his codefendant
committed.
       This conclusion is bolstered by the fact that the prosecutor argued the
natural and probable consequences theory to the jury at length during closing
argument and rebuttal. Moreover, an inquiry by the jury during its deliberations
suggested that it was considering the natural and probable consequences theory of
liability. The jury asked to clarify the meaning of the instruction regarding
“Aiding and Abetting: Intended Crimes,” which states: “To prove that a defendant
is guilty of a crime based on aiding and abetting that crime, the People must prove
that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that
the perpetrator intended to commit the crime; [¶] 3. Before or during the
commission of the crime, the defendant intended to aid and abet the perpetrator in
committing the crime; [¶] AND [¶] 4. The defendant’s words or conduct did in
fact aid and abet the perpetrator’s commission of the crime. [¶] Someone aids
and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he
or she specifically intends to, and does in fact, aid, facilitate, promote, encourage,
or instigate the perpetrator’s commission of that crime.” (CALCRIM No. 401.)
       The jury sent the court a note that said: “Clarification request on
description of #401 Aiding and Abetting: [¶] Point #2 says: ‘The defendant knew
that the perpetrator intended to commit the crime,’ [¶] What is meant by ‘the
crime’? Did aider and abett[or] have to know or even expect the possibility that it
will be murder (for count #1)? Or does it mean any crime?” The court replied,
“This is what the jury has to decide. Refer to instructions 400, 401 and 403, read
together.” The court added, “ ‘[A]ny crime’ means any crime the defendants are
on trial for.’ ” The jury’s query and the trial court’s response, with its reference to
the natural and probable consequences instruction (CALCRIM No. 403), suggest

                                          13
that some of the jurors’ ambivalence about convicting Martinez on a direct aiding
and abetting theory may have been resolved by relying on the theory that the
murder was a natural and probable consequence of the assaults committed by
Martinez and his codefendant.
       In sum, we conclude that the Attorney General has not shown beyond a
reasonable doubt that the jury relied on a legally valid theory in convicting
Martinez of first degree murder.




                                         14
                                   CONCLUSION
       Because the Chiu error here was prejudicial, we reverse the judgment of the
Court of Appeal and remand with directions to enter an order granting Martinez
habeas corpus relief and vacating his conviction for first degree murder. If the
prosecution elects not to retry Martinez, the trial court shall enter judgment
reflecting a conviction of second degree murder and sentence him accordingly.
                                                         LIU, J.


WE CONCUR:

CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
JOHNSON, J.*




*      Associate Justice of the Court of Appeal, Second Appellate District,
Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

                                         15
                  CONCURRING OPINION BY KRUGER, J.



       At Hector Martinez’s trial for first degree murder, the jury was instructed
on two alternative theories of guilt, both based on Martinez’s having aided and
abetted a killing perpetrated by his codefendant. This court’s later decision in
People v. Chiu (2014) 59 Cal.4th 155 made clear that one of those theories—the
so-called natural and probable consequences theory—was invalid. Invoking Chiu,
Martinez now petitions for a writ of habeas corpus. The Attorney General opposes
the grant of relief. He argues that it is Martinez’s burden to establish that he could
not have been found guilty under the remaining, legally valid theory, and Martinez
has not sustained that burden. I agree with the majority that it is not Martinez’s
burden to prove this negative; it is enough that the jury realistically could have
relied on the invalid theory in rendering its verdict. Martinez is entitled to a new
trial before a properly instructed jury.
       I write separately to explain why, in my view, this court’s cases do not
support the far more demanding rule the Attorney General proposes. Martinez
raises a claim of what is sometimes called alternative theory error: He challenges
his conviction on the basis that the jury in his case “was instructed on alternative
theories of guilt and may have relied on an invalid one.” (Hedgpeth v. Pulido
(2008) 555 U.S. 57, 58 (Hedgpeth); see, e.g., Stromberg v. California (1931) 283
U.S. 359 (Stromberg).) As the majority points out, many of the cases on which
the Attorney General relies involved a different sort of claim: that is, a claim to
unconditional release on grounds that the defendant was actually innocent of the
crime of which he was convicted. (Maj. opn., ante, at pp. 8–9.) The context is
important. For example, when the court in People v. Mutch (1971) 4 Cal.3d 389,
396 noted that “ ‘a defendant is entitled to habeas corpus . . . if it appears that the
statute under which he was convicted did not prohibit his conduct,’ ” the context
makes clear that the court was merely acknowledging that the defendant’s claim of
innocence in that case, if sustained, would entitle him to the relief he sought. The
court was not, as the Attorney General would have it, requiring all habeas
petitioners to prove their innocence in order to secure relief from a jury verdict
rendered unreliable by flawed instructions.
       I would place In re Bell (1942) 19 Cal.2d 488 (Bell) in a different category,
however. The petitioners in Bell had been convicted of violating an anti-picketing
ordinance that they challenged as unconstitutional. On appeal, the superior court
(which was the highest court to which petitioners could appeal) rejected the
constitutional challenge and affirmed petitioners’ convictions. (Id. at p. 491.)
Petitioners then renewed the constitutional challenge in habeas corpus petitions
filed in the superior court, the Court of Appeal, and, ultimately, this court. The
threshold question before this court was whether the constitutionality of the
ordinance could be tested by a habeas petition, despite the traditional view that
habeas corpus lies only to test the jurisdiction of the court whose judgment is
challenged and not to correct errors committed in the exercise of that jurisdiction.
(Id. at p. 492.) Answering that question in the affirmative, this court proceeded to
strike down provisions of the ordinance prohibiting peaceful picketing, while
upholding one provision insofar as it prohibited picketing by acts of violence. (Id.
at pp. 496–498.)
       This partial invalidation created something of a dilemma, because the
record in the petitioners’ case did not specify which provision—the valid one or

                                           2
the invalid one—formed the basis of their conviction. (Bell, supra, 19 Cal.2d at
p. 499.) The court acknowledged that had the case arisen on direct review, this
ambiguity would have warranted reversal of the conviction. (Id. at p. 500, citing
Stromberg, supra, 283 U.S. at p. 368.) The court also acknowledged that if the
statute had been held “entirely unconstitutional,” then petitioners would have been
entitled to release from custody. (Bell, at p. 498.) But because the claim arose on
habeas corpus, and because the statute of conviction was only partly invalid, the
court reasoned that petitioners were entitled to relief only if it was “clear” that they
were not convicted of violating the valid portion of the statute. (Id. at p. 499,
citing Ex parte Morrison (1891) 88 Cal. 112 (Morrison).) Applying that rule, the
court concluded that petitioners “failed to sustain the burden of proving that they
were not tried and convicted” under the valid portion of the anti-picketing
ordinance because the record revealed evidence of violent acts. (Bell, at p. 504.)
       Unlike the other cases on which the Attorney General relies, Bell does
suggest that a reasonably convincing claim of actual innocence under any valid
theory of liability is a prerequisite to habeas relief when a jury has rendered a
general verdict after being presented with both valid and invalid theories. And I,
unlike the majority, do not think the suggestion is readily cabined to claims not
“presented after a change in the law given retroactive effect.” (Maj. opn., ante, at
p. 10.) After all, there had been a retroactive change in the law in Bell, too: The
anti-picketing ordinance, which had been upheld in petitioners’ case on direct
review, was ruled unconstitutional in part on habeas. I do not see why it matters
that petitioners sought habeas relief in the very same case in which the
constitutional ruling was rendered, rather than invoking a favorable constitutional
ruling rendered in some other case involving some other set of picketers.
       The more pertinent point about Bell, as I see it, is that it was decided under
the influence of authorities taking a different view of the scope of the writ of

                                           3
habeas corpus than we now hold. Today we understand habeas generally to
“ ‘permit[] judicial inquiry into a variety of constitutional and jurisdictional
issues,’ ” acting as a “ ‘safety valve’ . . . for cases in which a criminal trial has
resulted in a miscarriage of justice.” (In re Reno (2012) 55 Cal.4th 428, 450.) But
as noted, the traditional view was that habeas corpus existed only to test the
jurisdiction of the court whose judgment is challenged and not to correct errors
committed in the exercise of that jurisdiction. (Bell, supra, 19 Cal.2d at p. 492;
see also, e.g., In re Reno, supra, at p. 450.)
       Of course, by the time Bell was decided, courts had begun to recognize that
this rule had become “more a fiction than anything else” (Wainwright v. Sykes
(1977) 433 U.S. 72, 79), and Bell itself recognized the trend toward using habeas
“to test the constitutionality not only of a statute but of the procedure in
petitioner’s trial, even though the trial court has jurisdiction to try the petitioner”
(Bell, supra, 19 Cal.2d at p. 493). But in adopting its restrictive approach to a
claim of alternative theory error raised on habeas, Bell reached well back into the
old regime, relying on a one-paragraph 1891 opinion holding that a habeas
petitioner was not entitled to release where it was unclear that he had been
convicted under the invalid portion of a partially invalid statute. (Morrison, supra,
88 Cal. 112, cited in Bell, supra, at p. 499.) The underlying premise of that
opinion was that habeas provided a vehicle for relief from convictions that were
“void,” such as a conviction entered under an invalid statute, but not as a vehicle
for the correction of errors committed by a court with jurisdiction over the person
and the subject matter. (See, e.g., Ex parte Mirande (1887) 73 Cal. 365, 371;
Morrison, at p. 112.) Bell itself represented an important chapter in the story of
the expansion of habeas beyond this historical understanding. But as Bell’s
reliance on Morrison indicates, the analysis had not entirely caught up with these
developments.

                                            4
       Bell also, as the majority notes, invoked the notion that a judgment that is
collaterally attacked on habeas carries with it a presumption of regularity. (Bell,
supra, 19 Cal.2d at pp. 500–501; see maj. opn., ante, at p. 6.) But the presumption
of regularity alone does not explain Bell’s choice to analyze the claim in that case
as limited to a claim that the convictions had been entered under an invalid portion
of the ordinance, nor does it otherwise justify erecting such a high bar to relief in
cases of alternative theory error. The presumption of regularity, we have since
explained, is designed to protect society’s legitimate interest in the finality of its
criminal judgments: “If a criminal defendant has unsuccessfully tested the state’s
evidence at trial and appeal and wishes to mount a further, collateral attack, ‘ “all
presumptions favor the truth, accuracy, and fairness of the conviction and
sentence; defendant thus must undertake the burden of overturning them.
Society’s interest in the finality of criminal proceedings so demands[.]” ’ ” (In re
Reno, supra, 55 Cal.4th at p. 451.) Here, Martinez has discharged that burden by
demonstrating that the jury at his trial received instructions that were later exposed
as flawed in Chiu. The presumption of regularity does not require Martinez to
bear the further burden of proving that this admitted irregularity led the jury to
return a verdict that no properly instructed jury conceivably could have rendered.
       Since Bell was decided, it has been sparingly invoked for the rule that the
Attorney General urges here; in In re Klor (1966) 64 Cal.2d 816, 822, the court
cited Bell under comparable circumstances but found its exacting standard to be
satisfied. At this point, many decades later, it seems appropriate to recognize that
the standard is rooted in an outmoded understanding of the scope of the writ and
should no longer be followed. I would disapprove In re Bell (1942) 19 Cal.2d
488, and In re Klor (1966) 64 Cal.2d 816, to the extent they are inconsistent with
this conclusion.



                                           5
       The Attorney General also argues in the alternative that even if Martinez need
not show that he could not have been convicted under a valid theory, we should adopt
the harmlessness standard that applies in federal habeas proceedings, which would
require Martinez to show that the flawed jury instructions “ ‘had substantial and
injurious effect or influence in determining the jury’s verdict.’ ” (Hedgpeth, supra,
555 U.S. at p. 58, quoting Brecht v. Abrahamson (1993) 507 U.S. 619, 623.) Under
that standard, a jury verdict may be reversed if a court has “grave doubt” as to
whether the verdict would have been the same absent the error. (O’Neal v. McAninch
(1995) 513 U.S. 432, 436–437.) For the reasons the majority gives, I think this
standard would be satisfied here: The facts of the case, the prosecutor’s reliance on
the natural and probable consequences doctrine at argument and rebuttal, and the
jury’s inquiry during deliberations all at least give rise to grave doubt about the effect
of the erroneous instruction on the jury’s verdict. (See maj. opn., ante, at pp. 10–11.)
But we are not bound to adopt this federal standard, and I agree with the majority that
it is unnecessary to introduce yet another harmlessness standard into California law in
order to safeguard finality interests already accounted for elsewhere in the state law
habeas framework. I accordingly concur.


                                                   KRUGER, J.




                                           6
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Martinez
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 5/15/15 – 4th Dist., Div. 1
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S226596
Date Filed: December 4, 2017
__________________________________________________________________________________

Court: Superior
County: San Diego
Judge: Robert F. O’Neill

__________________________________________________________________________________

Counsel:

Marilee Marshall & Associates and Marilee Marshall for Petitioner Hector Martinez.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Donald E. de Nicola, Deputy State Solicitor
General, Lise Jacobson and Kimberley A. Donohue, Deputy Attorneys General, for Respondent State of
California.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Marilee Marshall
Marilee Marshall & Associates
595 E. Colorado Boulevard, Suite 324
Pasadena, CA 91110
(626) 564-1136

Kimberley A. Donohue
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 645-3196
