Filed 9/14/16
                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                        DIVISION TWO


In re LESLIE BRIGHAM,                                 A144572
        on Habeas Corpus.
                                                      (Alameda County
                                                      Super. Ct. No. 86632)




        Petitioner was convicted in 1987 of first degree murder as an aider and abettor.
In 2014, the California Supreme Court held that an aider and abettor may be convicted of
first degree premeditated murder only under direct aiding and abetting principles, not
under the natural and probable consequences doctrine. (People v. Chiu (2014) 59 Cal.4th
155, 158-159 (Chiu).) Petitioner filed this writ, claiming the record does not establish
beyond a reasonable doubt that the jury convicted him of first degree murder on a legally
authorized ground. He seeks reversal of his conviction and remand for a new trial or
reduction of the conviction to second degree murder. We will grant the petition.
                                 STATEMENT OF THE CASE
        As described in our opinion on petitioner’s appeal from his 1987 conviction
(People v. Brigham (1989) 216 Cal.App.3d 1039, 1042 (Brigham)), petitioner was
charged by information with the first degree murder of Hosea Barfield (Pen. Code,
§ 1871), with allegations that he personally used a firearm and inflicted great bodily
injury on the victim, and that he had been convicted of a serious felony for which he
received probation in New Mexico. (Pen. Code, §§ 12022.5; 667.) A jury convicted
petitioner of first degree murder, but found that he did not personally use a firearm or

        1
            Further statutory references will be to the Penal Code.


                                                1
inflict great bodily injury. Petitioner waived jury trial on the enhancement allegation of
prior serious felony conviction, and the court found it true. Petitioner was sentenced to a
prison term of 25 years to life on the murder conviction, with a consecutive five-year
term for the prior. (Brigham, supra, 216 Cal.App.3d at p. 1042.)
       On appeal, a different panel of this court struck the five-year enhancement,
affirmed the judgment (over the dissent of Presiding Justice Kline), and denied a
contemporaneous petition for writ of habeas corpus. (Brigham, supra, 216 Cal.App.3d at
p. 1057.)
       The present petition was filed on March 19, 2015. After considering respondent’s
informal opposition to the petition and petitioner’s reply thereto, we issued an order to
show cause why the requested relief should not be granted. Respondent filed its return on
November 17, 2015, and petitioner filed his traverse on December 11, 2015.
                                STATEMENT OF FACTS2
       On the evening of January 21, 1986, Barbara Dawson and her cousin Catherine
Barfield experienced car trouble while parked on East 14th Street, near 61st Avenue.
Mrs. Barfield, who lived nearby in the 65th Village, telephoned her husband and 14-year-
old son Hosea Barfield (Barfield), who both agreed to come help. As the two women
walked back to the car, they saw Barfield across the street walking along East 14th to
meet them. (Brigham, supra, 216 Cal.App.3d at p. 1042.)
       Upon reaching the car, while starting to unlock the door, Ms. Dawson saw a man
wearing dark clothes and a ski mask pulled down over his face come around the corner.
The man lifted a rifle-type gun and shot it several times. Ms. Dawson ducked down, then
flagged a passing car. She did not see the man when she got up. (Brigham, supra, 216
Cal.App.3d at p. 1043.)
       As Ms. Dawson approached the driver’s side of the car, Mrs. Barfield went to join
her son at the passenger side. Noticing a clicking noise, she turned and saw a man


       2
        The Statement of Facts is taken from our opinion on the prior appeal. (Brigham,
supra, 216 Cal.App.3d 1039.)


                                             2
standing by the corner barbershop with a dark ski mask covering his face and a rifle-type
gun in his hands. Barfield told her to run, and as she did so, she saw the gun fire. Mrs.
Barfield called the police from a store, then returned to find her son dead on the sidewalk.
(Brigham, supra, 216 Cal.App.3d at p. 1043.)
       The driver of the car Ms. Dawson flagged down testified that he heard shots as he
was driving down East 14th, approaching 61st. He looked to his left and saw a man
crouched down and running. The man appeared to be wearing a drab-colored army
jacket with a fur collar; the driver could not see the man’s face or hands. (Brigham,
supra, 216 Cal.App.3d at p. 1043.)
       A pathologist testified that Barfield had at least three gun shot wounds to his neck,
back, arm, and chest, and extensive internal injuries in his chest and brain. The police
recovered three spent .223 caliber casings at the scene, which a ballistics expert said
could have been fired by either an AR-15 or an HK-93. In his opinion, however, the
bullets had not been fired from an HK-93. (Brigham, supra, 216 Cal.App.3d at p. 1043.)
       Nearly nine months after the murder, when the police investigation had reached a
dead end, petitioner approached an Oakland police officer and asked to talk to a homicide
investigator about a “ ‘mistaken identity murder’ ” on East 14th Street. After a voluntary
preliminary interview, petitioner was admonished about his rights and gave two taped
statements. Petitioner related that on the night of the murder, he and another man,
Norbert Bluitt (Bluitt), were ordered by “ ‘The Man’ ” (a person petitioner refused to
identify) to kill “Chuckie,” whom “ ‘The Man’ ” had held a grudge against for some time
and petitioner considered an enemy of the group. Petitioner thought the group Chuckie
was part of was “ ‘out to kill me.’ ” (Brigham, supra, 216 Cal.App.3d at pp. 1043-1044.)
       “ ‘The Man’ ” arranged for automatic weapons to be delivered to petitioner and
Bluitt; petitioner said his was an “HK-9,” Bluitt had a similar gun and Dual Moore had a
handgun. A ballistics expert testified that petitioner must have been referring to an HK-
93. (Brigham, supra, 216 Cal.App.3d at p. 1044.)
       Petitioner, Bluitt and Moore set out to find Chuckie, with Moore driving.
Petitioner said that he was wearing dark clothes and a rolled-up ski mask, and Bluitt was


                                             3
wearing a baseball cap marked with an “ ‘N’ ” pulled low over his face. Petitioner, an
experienced hit man, stated that the only time he would put a ski mask “ ‘on my face’ ”
was “ ‘when I’m tryin’ ta hit, kill somebody.’ ” Petitioner had “ ‘worked’ ” with Bluitt
before and knew Bluitt was “ ‘just hardheaded.’ ” (Brigham, supra, 216 Cal.App.3d at p.
1044.)
         The hit men arrived at the 65th Village, where Chuckie was supposed to be,
parked, and walked “ ‘in the back way’ ” to a porch where a group of men was gathered.
The group scattered. Following one of the departing men, petitioner and his companions
ran back to their car and drove toward East 14th on 64th, by a place known as
“Plucky’s,” where they saw “ ‘a young guy.’ ” (Brigham, supra, 216 Cal.App.3d at p.
1044.) Seeing Barfield from the car, petitioner said it was Chuckie and Bluitt said,
“ ‘ [“]we’re gonna get him.[”] ’ ” As they got closer, petitioner said, “ ‘man, that is not
Chuckie, man.’ ” Bluitt said, “ ‘we’re gonna get him’ ” and directed the driver to make a
right turn and stop. Petitioner and Bluitt both got out of the car with their weapons.
Petitioner went, with his weapon, to the street corner near where the shooting occurred,
saw an officer in a police car, then returned his gun to the car and told Bluitt, “ ‘[P]olice
right there, man. Don’t do it. It ain’t cool. That’s not the dude, man. Come on.’ ”
Bluitt said, “ ‘[“M]an, fuck dat. We’s gonna waste it up. We’s gonna let dese niggers
know we serious.[”]’ ” Petitioner tried to grab Bluitt’s arm, but Bluitt fired more than
twice, hitting Barfield in the face. (Brigham, supra, 216 Cal.App.3d at pp. 1044-1045.)
         At the end of the police interview, petitioner identified photographs of Bluitt,
Moore and the AR-15 rifle Bluitt carried. (Brigham, supra, 216 Cal.App.3d at p. 1045.)
Ms. Dawson had identified the AR-15 military rifle as being most like the gun she saw in
the hands of the shooter, choosing it over an HK-93 assault rifle. (Brigham, supra, 216
Cal.App.3d at p. 1043.)
         The investigating officer testified that Moore told him Bluitt was wearing a dark
gray hood. Both Ms. Dawson and Mrs. Barfield testified that the killer was not wearing a
baseball cap. (Brigham, supra, 216 Cal.App.3d at p. 1044.)



                                               4
                                        DISCUSSION
                                               I.
       Petitioner has filed this petition for writ of habeas corpus without seeking relief
from the trial court, and respondent has raised no objection to this court exercising
original jurisdiction. “ ‘It has long been the law in California that, while a Court of
Appeal may have original jurisdiction in a habeas corpus proceeding, it has the discretion
to deny a petition without prejudice if it has not been first presented to the trial court.’
(In re Kler (2010) 188 Cal.App.4th 1399, 1403.) ‘ “Generally speaking, habeas corpus
proceedings involving a factual situation should be tried in superior court rather than in
an appellate court, except where only questions of law are involved.” . . .’ (In re of
Hillery (1962) 202 Cal.App.2d 293, 294, quoting 24 Cal.Jur.2d, Habeas Corpus, § 68, pp.
524-525; In re Davis (1979) 25 Cal.3d 384, 389 [exercising original jurisdiction where
the petitions raised issues of law and there were no material factual issues].)” (In re
Johnson (2016) 246 Cal.App.4th 1396, 1402 (Johnson).) Resolution of the issue
presented here does not require further factual determinations but rather analysis of legal
argument and assessment of prejudice, both issues appropriate for an appellate court.
Accordingly, we elect to exercise our jurisdiction to resolve the writ petition.
                                              II.
       As we have said, petitioner was convicted of first degree murder as an aider and
abettor. The jury’s rejection of the charged enhancements for personal use of a firearm
and personal infliction of great bodily injury make this clear. “There are two distinct
forms of culpability for aiders and abettors. ‘First, an aider and abettor with the
necessary mental state is guilty of the intended crime. Second, under the natural and
probable consequences doctrine, an aider and abettor is guilty not only of the intended
crime, but also “for any other offense that was a ‘natural and probable consequence’ of
the crime aided and abetted. ” ’ (People v. McCoy (2001) 25 Cal.4th 1111, 1117 . . . .)”
(Chiu, supra, 59 Cal.4th at p. 158.) “A nontarget offense is a ‘natural and probable
consequence’ of the target offense if, judged objectively, the additional offense was
reasonably foreseeable. ([People v.] Medina[ (2009)] 46 Cal.4th [913,] 920.) The


                                               5
inquiry does not depend on whether the aider and abettor actually foresaw the nontarget
offense. (Ibid.) Rather, liability ‘ “is measured by whether a reasonable person in the
defendant’s position would have or should have known that the charged offense was a
reasonably foreseeable consequence of the act aided and abetted.” ’ (Ibid.) Reasonable
foreseeability ‘is a factual issue to be resolved by the jury.’ (Id. at p. 920.)” (Chiu,
supra, 59 Cal.4th at pp. 161-162.)
       “The natural and probable consequences doctrine is based on the principle that
liability extends to reach ‘the actual, rather than the planned or “intended” crime,
committed on the policy [that] . . . aiders and abettors should be responsible for the
criminal harms they have naturally, probably, and foreseeably put in motion.’ (People v.
Luparello (1986) 187 Cal.App.3d 410, 439, italics added; see [People v.]
Prettyman[ (1996)] 14 Cal.4th [248,] 260, quoting Luparello.)” (Chiu, supra, 59 Cal.4th
at pp. 164-165.) “In the context of murder, the natural and probable consequences
doctrine serves the legitimate public policy concern of deterring aiders and abettors from
aiding or encouraging the commission of offenses that would naturally, probably, and
foreseeably result in an unlawful killing.” (Chiu, supra, 59 Cal.4th at p. 165.)
       Chiu considered these principles in the context of a case where the target offense
of assault or disturbing the peace resulted in a murder. (Chiu, supra, 59 Cal.4th at p.
160.) For policy reasons, the court held that “an aider and abettor may not be convicted
of first degree premeditated murder under the natural and probable consequences
doctrine.” (Id. at pp. 158-159.) The court explained: “A primary rationale for punishing
such aiders and abettors—to deter them from aiding or encouraging the commission of
offenses—is served by holding them culpable for the perpetrator’s commission of the
nontarget offense of second degree murder.” (Id., at p. 165.) “However, this same public
policy concern loses its force in the context of a defendant’s liability as an aider and
abettor of a first degree premeditated murder. First degree murder, like second degree
murder, is the unlawful killing of a human being with malice aforethought, but has the
additional elements of willfulness, premeditation, and deliberation which trigger a
heightened penalty. (People v. Knoller[ (2007)] 41 Cal.4th [139,] 151.) That mental


                                              6
state is uniquely subjective and personal. It requires more than a showing of intent to
kill; the killer must act deliberately, carefully weighing the considerations for and against
a choice to kill before he or she completes the acts that caused the death. (People v.
Koontz (2002) 27 Cal.4th 1041, 1080; People v. Anderson (1968) 70 Cal.2d 15, 26-27.)
. . . [T]he 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 above-stated public policy concern of deterrence.”
(Chiu, supra, 59 Cal.4th at p. 166.)
        Chiu further explained that aiders and abettors “may still be convicted of first
degree premeditated murder based on direct aiding and abetting principles[,]” under
which “the prosecution must show that the defendant aided or encouraged the
commission of the murder with knowledge of the unlawful purpose of the perpetrator and
with the intent or purpose of committing, encouraging, or facilitating its commission.”
(Chiu, supra, 59 Cal.4th at pp. 166-167.) “An aider and abettor who knowingly and
intentionally assists a confederate to kill someone could be found to have acted willfully,
deliberately, and with premeditation, having formed his own culpable intent. Such an
aider and abettor, then, acts with the mens rea required for first degree murder.” (Id. at p.
167.)
        Respondent maintains that Chiu is inapplicable where, as here, the target offense is
itself premeditated murder.3 The Chui opinion did not suggest any exceptions to the rule
it stated. In respondent’s view, however, there is no unfairness in holding petitioner

        3
         Respondent has not taken issue with petitioner’s argument that Chiu is
retroactive. “The Chiu decision set forth a new rule of substantive law by altering the
range of conduct for which a defendant may be tried and convicted of first degree
murder.” (In re Lopez (2016) 246 Cal.App.4th 350, 358.) Like other cases making
similar changes in substantive criminal law (In re Lucero (2011) 200 Cal.App.4th 38, 45-
46 (Lucero) [People v. Chun (2009) 45 Cal.4th 1172 (Chun) retroactive]; In re Hansen
(2014) 227 Cal.App.4th 906, 918-920 (Hansen) [Chun retroactive]), Chiu has been held
to apply retroactively. (In re Lopez, supra, 246 Cal.App.4th at pp. 357-360; see Johnson,
supra, 246 Cal.App.4th at p. 1404, fn. 2.)


                                              7
liable for the premeditated murder of Barfield because petitioner intended to facilitate a
premeditated murder, albeit the murder of Chuckie rather than Barfield. Respondent
argues that where the target offense is premeditated murder and the perpetrator commits
that offense against a different victim, there is no “disjunction” between the aider and
abettor’s intent to commit the target offense and the perpetrator’s intent to commit the
non-target offense. In effect, respondent maintains that petitioner acted with the intent of
a direct aider and abettor, albeit with a different intended victim, and limiting the
prosecution to second degree murder in this situation would confer a windfall upon
petitioner.
       Respondent’s argument evokes the doctrine of transferred intent, under which “a
defendant who shoots with the intent to kill a certain person and hits a bystander instead
is subject to the same criminal liability that would have been imposed had ‘ “the fatal
blow reached the person for whom intended.’ ” (People v. Bland (2002) 28 Cal.4th 313,
321, quoting People v. Suesser (1904) 142 Cal. 354, 366.) Indeed, respondent argues that
in the present case, the prosecutor used the natural and probable consequences theory “as
a proxy for the transferred intent doctrine.” But, as respondent points out, the jury was
also instructed on transferred intent. This theory would have established petitioner’s
liability as a direct aider and abettor without resort to consideration of natural and
probable consequences. Respondent does not explain why the prosecutor would have
needed to use the natural and probable consequences doctrine to “substitute for” or
“supplement” the transferred intent theory.
       If the jury rejected petitioner’s defense, the transferred intent theory would have
easily directed it to find petitioner guilty of the premeditated murder of Barfield.4 But if
the jury believed that petitioner did not intend to kill or assist in the killing of someone
other than Chuckie, told Bluitt the person they were following was not Chuckie and tried
to stop Bluitt from shooting, and that Bluitt intentionally and deliberately shot Barfield

       4
         Of course, the jury also could have found petitioner guilty as a direct aider and
abettor without reliance on the transferred intent theory if it believed petitioner shared
Bluitt’s intent to kill Barfield knowing Barfield was not Chuckie.


                                               8
anyway, the jury instructions would not have permitted reliance on the theory of
transferred intent, because this theory applies when the perpetrator intends to kill one
victim and unintentionally kills another. CALJIC No. 8.65 directs the jury, “When one
attempts to kill a certain person, but by mistake or inadvertence kills a different person,
the crime, if any, so committed is the same as though the person originally intended to be
killed, had been killed.” To the same effect, CALCRIM No. 562 instructs, “If the
defendant intended to kill one person, but by mistake or accident killed someone else
instead, then the crime, if any, is the same as if the intended person had been killed.” The
natural and probable consequences theory does not expressly refer to concepts such as
mistake or inadvertence; it asks whether a reasonable person in the aider and abettor’s
position would have known that the perpetrator’s premeditated murder of a different
victim was a natural and probable consequence of the originally premeditated murder.
Thus the jury could have relied upon this doctrine to find petitioner guilty if it believed
that a reasonable person, knowing what petitioner knew about the situation and about
Bluitt, would or should have known it was reasonably foreseeable that Bluitt would
commit a premeditated murder of a different victim. Natural and probable consequences
was not used by the prosecutor as a proxy for transferred intent; it was an alternate theory
offered to enable the jury to find petitioner guilty even if it believed he did not intend to
aid and abet the intentional murder Bluitt actually committed.
       Respondent’s argument that Chiu does not apply where the target crime is
premeditated murder, despite some superficial appeal, is not persuasive. The appeal lies
in the fact that, unlike the defendant in Chiu, petitioner intended to facilitate a
premeditated murder, not some lesser offense. But, if the jury accepted petitioner’s
defense, petitioner intended only to facilitate one specific premeditated murder, the
murder of Chuckie. Respondent’s argument assumes that the mens rea of a person who
knowingly acts with the intention of assisting in the premeditated murder of a specific
victim necessarily transfers to an intention to assist in killing a completely unrelated
victim the perpetrator independently decides to kill instead.



                                               9
       The Chiu decision was based upon the “uniquely subjective and personal” mental
state required for conviction of first degree premeditated murder—the “willfulness,
premeditation, and deliberation” that trigger the harsher penalty for first degree murder.
(Chui, supra, 59 Cal.4th at p. 166.) It was this subjective element of deliberation and
careful weighing of considerations that led Chui to conclude that an aider and abettor
who did not personally have the mens rea required for first degree murder could not be
held liable under the natural and probable consequences doctrine. (Id. at pp. 166-167.) If
his defense was believed, petitioner did not intend to kill or assist Bluitt in killing anyone
other than Chuckie, and once he realized Chuckie was not the person in their sights, he
tried to stop Bluitt from shooting. As we have said, if Bluitt intended to kill Chuckie and
thought he was doing so, but accidentally killed Barfield, petitioner would have been
liable as a direct aider and abettor under the doctrine of transferred intent; his aiding and
abetting of the intended murder in essence assumed the risk that the perpetrator would
mistakenly kill the wrong victim. But Bluitt’s independent, intentional, deliberate and
premeditated decision to kill a different victim would reflect a personal and subjective
state of mind that was insufficiently connected to petitioner’s culpability for aiding and
abetting the (intended) murder of Chuckie to justify holding petitioner liable for Bluitt’s
premeditated independent act.
       As applied to this case, Chui directs that petitioner could be found guilty of the
first degree premeditated murder of Barfield as a direct aider and abettor, only if he
“aided or encouraged the commission of the murder [of Barfield] with knowledge of the
unlawful purpose of the perpetrator and with the intent or purpose of committing,
encouraging, or facilitating its commission.” (Chiu, supra, 59 Cal.4th at p. 167.) If he
did not intend to commit, encourage or facilitate the premeditated murder of Barfield, he
could not be found guilty of that offense on the theory that the murder of Barfield was a
natural and probable consequence of the crime he did intent to commit, encourage or
facilitate (the premeditated murder of Chuckie). As we have said, however, the jury in
the present case was instructed on both direct aiding and abetting and the natural and
probable consequences theory.


                                              10
       Assessing whether the error in Chiu was harmless, the court explained, “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.)
       Respondent argues that this test should not be employed on collateral review.
Instead, respondent argues that petitioner is not entitled to relief on this petition because
he cannot show he was not guilty of first degree murder as a matter of law. Respondent
argues that Chiu narrowed the scope of substantive liability for the crime but did not
redefine it, and that under these circumstances, “petitioner is only ‘ “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.
[Citations.]” . . .’ (People v. Mutch (1971) 4 Cal.3d 389, 396 (Mutch ), quoting In re
Zerbe (1964) 60 Cal.2d 666, 667-668.)” (Johnson, supra, 246 Cal.App.4th at p. 1404.)
In other words, “a petitioner must demonstrate ‘as a matter of law’ that his conduct did
not violate the statute of conviction. (In re Earley (1975) 14 Cal.3d 122, 125 [(Earley)],
superseded by statute on other grounds in People v. Vines (2011) 51 Cal.4th 830, 869.)”
(Johnson, supra, 246 Cal.App.4th at p. 1404.) Petitioner cannot satisfy this test,
respondent urges, because he could have been found guilty of first degree murder under
the doctrine of transferred intent.
       Respondent’s position on the assessment of Chiu error in the habeas context was
rejected in Johnson, supra, 246 Cal.App.4th at pp. 1406-1407. As Johnson explained,
cases involving changes in law analogous to Chiu have employed the Chapman5 beyond
a reasonable doubt standard on habeas review. In Chun, supra, 45 Cal.4th 1172, the

       5
           Chapman v. California (1967) 386 U.S. 18.


                                              11
Supreme Court “reconsidered the scope of the second degree felony-murder rule and
expressly overturned its previous holding that shooting at an occupied vehicle could form
the basis for such a conviction.” (Johnson, supra, 246 Cal.App.4th at p. 1405.) This
change was the basis for a habeas petition in Lucero, supra, 200 Cal.App.4th 38, in which
the jury instructions permitted a murder conviction to be predicated on such a shooting.
After concluding that Chun applied, the Lucero court found the error “harmless beyond a
reasonable doubt” (Lucero, supra, 200 Cal.App.4th at p. 52), as “ ‘[n]o juror who
correctly followed the instructions could arrive at a verdict of attempted murder without
addressing the question of malice aforethought and resolving it against Lucero. Hence,
this is a case where “other aspects of the verdict . . . leave no reasonable doubt that the
jury made the findings necessary for conscious-disregard-for-life malice. . . .” (Chun,
supra, 45 Cal.45th [Cal.4th] at p. 1205.)’ (Lucero, at p. 51.)” (Johnson, supra, 246
Cal.App.4th at p. 1405.) Hansen, supra, 227 Cal.App.4th 906, 922-928, applied the
beyond a reasonable doubt standard for harmless error in the long-final case that was
expressly overruled by Chun, finding prejudice because nothing in the jury’s verdict
showed it relied upon the legally valid theory rather than the invalid felony murder
theory, or made the findings necessary to support the valid theory.
       Johnson found the reasoning of Lucero and Hansen more applicable to the Chiu
situation than that of Earley and Mutch, the same cases respondent relies upon in the
present case. Johnson explained that “Chun and Chiu represent changes in the law, not
merely a narrowing of the court’s interpretation of the law as advanced by respondent,”
and the error does not require the court “ ‘ “to review determinations of fact made upon
conflicting evidence after a fair trial” ’ ”6 but rather “goes to the reliability of the


       6
         This quote in Johnson is from the dissenting opinion in Neal v. State of
California (1960) 55 Cal.2d 11, 23 (disapproved on other grounds in People v. Correa
(2012) 54 Cal.4th 331), which disagreed with the majority’s view that the case was
appropriate for habeas corpus review. Contrary to the majority’s view of the case as
involving a question of law on undisputed facts, dissenting Justice Schauer viewed the
case as presenting a question of sufficiency of the evidence and stated, “The subject use
of habeas corpus is squarely contrary to the following rules: ‘[H]abeas corpus may not be

                                               12
conviction and the question of guilt or innocence of the crime for which petitioner was
convicted—first degree premeditated murder. As the Supreme Court in Chiu noted, there
is a significant difference between first degree premeditated murder and second degree
murder—a sentence of 25 years to life versus 15 years to life.” (Johnson, supra, 246
Cal.App.4th at pp. 1406-1407.)
       By contrast, Mutch and Earley “only addressed insufficiency of the evidence
claims and the ‘excess of jurisdiction’ exception to the Waltreus/Dixon rules limiting
relitigation of appellate claims on habeas.”7 (Johnson, supra, 246 Cal.App.4th at p. 1407,
fn. omitted.) In Mutch and Earley, subsequent to the petitioners’ convictions of
kidnapping for the purpose of robbery under section 209, People v. Daniels (1969) 71
Cal.2d 1119, 1139, held—contrary to previous interpretations of the statute—that the
asportation element of the offense intended by the Legislature is not satisfied by
movements of the victim that are “merely incidental to the commission of the robbery
and do not substantially increase the risk of harm over and above that necessarily present
in the crime of robbery itself.” (Earley, supra, 14 Cal.3d at pp. 126-127; Mutch, supra, 4
Cal.3d at p. 394.) Both cases applied the principle 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.
[Citations.]’ ” (Mutch, supra, 4 Cal.3d at p. 396, quoting In re Zerbe (1964) 60 Cal.2d
666, 667-668; Earley, supra, 14 Cal.3d at p. 125.) In both, the question was whether the


used instead of an appeal to review determinations of fact made upon conflicting
evidence after a fair trial. [Citations.] Likewise, the writ is not available to correct errors
or irregularities relating to ascertainment of the facts when such errors could and should
have been raised by appeal. [Citations.]’ (In re Dixon (1953) 41 Cal.2d 756, 760.)”
       7
          The referenced rules illustrate the principle that “[p]roper appellate procedure . . .
demands that, absent strong justification, issues that could be raised on appeal must
initially be so presented, and not on habeas corpus in the first instance.” (In re Harris
(1993) 5 Cal.4th 813, 829; In re Waltreus (1965) 62 Cal.2d 218, 225 [petitioner
precluded from raising claim previously raised and rejected on appeal]; In re Dixon,
supra, 41 Cal.2d at p. 759 [petitioner precluded from raising claim that was not raised on
appeal but should have been]; Johnson, supra, 246 Cal.App.4th at p. 1407, fn. 4.)


                                              13
evidence showed that as a matter of law the movement of the victim was incidental to the
robbery and, therefore, the defendant’s conduct did not violate section 209. (Mutch,
supra, 4 Cal.3d at p. 396; Earley, supra, 14 Cal.3d at pp. 130-131.) If it did, relief via
habeas corpus was appropriate to rectify the error of the court’s act in “excess of its
jurisdiction.” (Mutch, supra, 4 Cal.3d at p. 396.)
         Unlike the situation in Mutch and Earley, the issue here is not whether the facts
support petitioner’s conviction but whether the jury could have relied upon an invalid
legal theory in convicting him. We agree with Johnson that “the scope of California
habeas corpus review is not so limited as respondent suggests based on Mutch and
Earley. Rather, the Supreme Court’s Chiu opinion effected a significant change in the
law of aiding and abetting, eliminating the natural and probable consequences doctrine as
a basis for a conviction of first degree murder. There is no question that the arguments
and jury instructions allowed the jury to base its murder finding on the now-discredited
theory of natural and probable consequences; accordingly, as instructed by our Supreme
Court, we now turn to the question of prejudice.” (Johnson, supra, 246 Cal.App.4th at p.
1407.)
         We cannot conclude beyond a reasonable doubt that the jury based its verdict on
the legally valid theory that petitioner directly aided and abetted the premeditated murder
and not on the legally invalid natural and probable consequences doctrine. As no felony
murder theory was offered at trial, and the jury’s rejection of the personal use and
infliction of great bodily injury enhancements demonstrates that petitioner was not
convicted as the actual perpetrator, petitioner was necessarily convicted as an aider and
abettor. The jury was instructed on the natural and probable consequences theory, and
this theory was argued by the prosecution. This theory would have provided the route to
conviction if the jury believed part or all of petitioner’s defense, and that defense was not
implausible. While a defendant’s statements to the police might often be dismissed as
self-serving, in this case petitioner was not a suspect attempting to dispel suspicion when
he spoke with the police. As earlier indicated, petitioner voluntarily contacted the police
almost nine months after the murder, after investigation of the murder had reached a dead


                                              14
end, when there is no apparent reason it was in his interest to do so. (Brigham, supra,
216 Cal.App.3d at p. 1043.) There is simply no way to tell from the verdict whether the
jury relied on the invalid natural and probable consequences theory or viewed appellant
as a direct aider and abettor.
       Petitioner’s first degree murder conviction cannot stand. In this situation, Chiu
found it appropriate to reverse the first degree murder conviction and allow the People to
either accept a reduction to second degree murder or retry the greater offense under a
direct aiding and abetting theory. We will grant the petition for writ of habeas corpus to
provide the same relief. (Johnson, supra, 246 Cal.App.4th at pp. 1408-1409.)
                                       DISPOSITION
       The petition for writ of habeas corpus is granted. The judgment of conviction is
vacated and the matter is remanded to the superior court with directions to allow the
People to accept a reduction of the conviction to second degree murder or elect to retry
petitioner on first degree murder under a direct aiding and abetting theory. If the People
do not elect to bring petitioner to trial within the time prescribed by law, the trial court
shall enter judgment reflecting a conviction of second degree murder and shall resentence
petitioner accordingly.

                                                   _________________________
                                                   Miller, J.


We concur:


_________________________
Richman, Acting P.J.


_________________________
Stewart, J.




                                              15
Trial Court: Superior Court of Alameda County


Trial Judge: Hon. Joseph Carton


Attorneys for Petitioner              Jonathan Soglin
                                      Paula Rudman
                                      Under appointments by the Court of Appeal

Attorneys for Respondent
                                      Kamala D. Harris
                                      Attorney General
                                      Gerald A. Engler
                                      Chief Assistant Attorney General
                                      Jeffrey M. Laurence
                                      Senior Assistant Attorney General
                                      Seth K. Schalit
                                      Supervising Deputy Attorney General
                                      Dorian Jung
                                      Deputy Attorney General




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