                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 RONALD TAYLOR,                                    No. 11-55247
             Petitioner-Appellant,
                                                  D.C. No. 2:09-
                      v.                         cv-05267-ODW-
                                                       OP
 MATTHEW L. CATE, Secretary of the
 California Department of
 Corrections and Rehabilitation,                     OPINION
                Respondent-Appellee.


        Appeal from the United States District Court
            for the Central District of California
         Otis D. Wright II, District Judge, Presiding

                   Argued and Submitted
           February 3, 2014—Pasadena, California

                    Filed November 19, 2014

Before: Mary M. Schroeder and Richard R. Clifton, Circuit
      Judges, and John R. Tunheim, District Judge.*

               Opinion by Judge Schroeder
 Partial Concurrence and Partial Dissent by Judge Clifton

 *
   The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
2                         TAYLOR V. CATE

                           SUMMARY**


                          Habeas Corpus

    The panel reversed the district court’s judgment denying
a habeas corpus petition and remanded with instructions to
grant the writ in a case in which Ronald Taylor, who was
convicted and originally sentenced for felony murder based
on a jury finding that Taylor was the shooter, was resentenced
as an aider and abettor after the State of California concluded
that he was not the shooter.

    The panel held that the right to a jury trial in this case
means that Taylor had the right to have a jury decide what
conduct he committed, and that resentencing on the basis of
facts that the jury did not find, and indeed that conflicted with
what the jury did find, violated his Sixth Amendment rights.
The panel wrote that there was no trial error that could be
subject to harmless error analysis, and concluded that Taylor
is entitled to a new trial.

    Judge Clifton concurred in part and dissented in part. He
agreed that constitutional error arose when the State
resentenced Taylor as an aider and abettor. But he disagreed
that the correct remedy is to grant the writ and order a retrial.
He would hold that the error in this case is amenable to
harmless error review, and would remand for further
proceedings to determine whether Taylor suffered prejudice.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                       TAYLOR V. CATE                          3

                         COUNSEL

Kurt David Hermansen (argued), Law Office of Kurt David
Hermansen, San Diego, California, for Petitioner-Appellant.

Kamala D. Harris, Attorney General of California, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Kenneth C. Byrne,
Supervising Deputy Attorney General, and Eric E. Reynolds
(argued), Deputy Attorney General, Los Angeles, California,
for Respondent-Appellee.


                          OPINION

SCHROEDER, Circuit Judge:

    In 1987, two people entered a fast food restaurant, and
one of them shot and killed the owner, Lewis Lim. A jury
found that petitioner Ronald Taylor was the shooter, and
convicted him of felony murder predicated on attempted
robbery. The state trial court sentenced Taylor to life without
the possibility of parole on the basis of the jury’s finding that
he was the shooter. In 1996, Taylor told the State that
although he had been at the restaurant on the day of the
crime, his cousin, Hugh Hayes Jr., was actually the shooter.
The State believed Taylor and sought to have him
resentenced as an aider and abettor. The state trial court
resentenced Taylor as an aider and abettor to a term of
imprisonment with the possibility of parole.

   Taylor objected to resentencing, contending that the jury
had not found him guilty of aiding and abetting the robbery,
and that he was entitled to a new trial. The state courts did
4                     TAYLOR V. CATE

not resolve Taylor’s claim for procedural reasons, so he
petitioned the federal court for a writ of habeas corpus,
arguing that the State may not continue to hold him in prison
on the theory that he aided and abetted a robbery, when the
jury did not find the facts necessary to convict him of aiding
and abetting. We agree. The State may not imprison Taylor
for a criminal role the jury considered and expressly found he
did not play.

                     BACKGROUND

    On November 19, 1987, two men drove into the parking
lot of Pioneer Chicken in Sunland, California. The taller of
the two men entered the restaurant and requested the restroom
key from Rajinder Kaur, an employee working behind the
counter. Kaur gave him the key, and he left the restaurant to
use the restroom, which had an outside entry, while the
shorter of the two men was sitting on the hood of the car.
The taller man then reentered the restaurant, walked behind
the counter, and while he gave Kaur the key with his left
hand, he pulled a gun from his pocket with his right hand.
The shorter man had by that time entered the restaurant and
was sitting in the dining area.

    The owner of the restaurant, Lewis Lim, then came out of
the kitchen. While the gunman was distracted by Lim, Kaur
went through the kitchen door to summon help. Kaur
testified she heard a punch and a gunshot. Lim was later
found dead, having been shot in the back of the head. As
Kaur was trying to leave, the shorter man hit her on the back
and threw her to the ground. The two men fled in the car in
which they had arrived.
                      TAYLOR V. CATE                         5

    Police later found the car abandoned in a parking lot. It
had been wiped down with brake fluid, but police discovered
the palm print of petitioner Ronald Taylor on the driver’s side
rear window. When Taylor was arrested, he did not tell
police the identity of his companion.

    In March 1988, the Los Angeles County district attorney
filed a three-count information against Taylor. Count 1
charged that Taylor murdered Lim, in violation of California
Penal Code § 187(a). Count 1 specially alleged that Taylor
committed the murder while in the commission of a robbery,
a “special circumstance” under Penal Code § 190.2(a)(17)
that was punishable by death or life without parole. Count 1
also specially alleged that Taylor personally used a firearm
during the offense under Penal Code §§ 1203.06(a)(1) and
12022.5, and that a principal was armed with a firearm during
the offense under Penal Code § 12022(a). Counts 2 and 3
alleged that Taylor committed attempted robbery and grand
theft auto.

    At Taylor’s trial, the prosecutor sought a conviction under
a theory of felony murder, because Lim was killed during an
attempted robbery. The prosecutor argued that the man who
shot Lim was guilty of attempted robbery as a principal, and
that the second man was guilty of attempted robbery as an
aider and abettor. The trial court instructed the jury on both
felony murder and aiding and abetting liability.

    There was a dispute at trial about whether Taylor, if he
was present, was the shooter or the second man, and about
whether the second man intended the robbery. The
prosecutor contended that both the shooter and the second
man, who was arguably acting as a lookout, knowingly
participated in the robbery. The prosecutor therefore argued
6                     TAYLOR V. CATE

that the evidence showed that Taylor was the shooter, but that
if the jury disagreed, the jury should find that Taylor actively
participated as the lookout. Defense counsel argued that any
involvement Taylor had was as the second man and that he
did not know that his companion intended to rob the
restaurant.

    The prosecutor also sought a finding of the “special
circumstance”—murder in the commission of a robbery.
Under California law, the “special circumstance” can apply
to an aider and abettor only if the aider and abettor has the
intent to kill. Cal. Penal Code § 190.2(c). The prosecutor
acknowledged in closing that this was a felony murder case
and that he did not prove that the lookout intended to kill
Lim. The prosecutor therefore correctly told the jury that in
order to find the “special circumstance,” the jury had to find
that Taylor was the actual shooter.

    The jury found Taylor guilty of murder, attempted
robbery, and grand theft auto. The jury found true the
“special circumstance” that Taylor committed the murder
during the commission of a robbery, and also the allegations
that Taylor personally used a firearm and that a principal was
armed with a firearm. The jury therefore found that Taylor
was the shooter, not the second man.

     On the basis of the “special circumstance” finding, the
trial court sentenced Taylor to life without the possibility of
parole. Cal. Penal Code § 190.2(a)(17). The California Court
of Appeal affirmed Taylor’s conviction, and the California
Supreme Court denied his petition for review in 1991.

   In 1996, Taylor contacted the Los Angeles Police
Department and reported that although he had been at the
                      TAYLOR V. CATE                          7

restaurant on the day of the crime, his cousin, Hugh Hayes
Jr., was the one who shot Lim. The State investigated
Taylor’s claim. Taylor’s brother told investigators that Hayes
admitted to him shortly after the murder that he shot Lim.
Hayes’s former girlfriend told investigators that she
overheard Hayes talking on the phone and admitting to the
shooting. Kaur, the restaurant employee working behind the
counter, positively identified Hayes in a photographic lineup.
Trial testimony established that it was the taller of the two
men who shot Lim, and investigators discovered that Hayes
is much taller than Taylor.

    In January 1999, the State tried Hayes for the murder of
Lim, but the jury found him not guilty. Nonetheless, both the
original case detective and the officers who investigated
Hayes continued to believe that Hayes, not Taylor, was the
shooter. In March 1999, the district attorney wrote to the
California Board of Prison Terms and requested that Taylor’s
case be returned to the trial court for resentencing, given the
new evidence that Taylor was not the shooter. The Board
denied the request.

    In 2004, Taylor, acting pro se, filed his fifth state habeas
corpus petition, arguing that he was not the shooter and
asking for a new trial. In May 2005, while the California
Supreme Court was considering Taylor’s petition, the district
attorney again wrote to the California Department of
Corrections and the California Board of Prison Terms to
request that they recall Taylor’s sentence. The district
attorney repeated that new evidence—including the
statements of Taylor’s brother and Hayes’s former girlfriend,
as well as Kaur’s identification of Hayes—showed that
Hayes, not Taylor, was the shooter. The California Supreme
Court then instructed the California Attorney General to
8                      TAYLOR V. CATE

submit an informal response to Taylor’s petition that
addressed the district attorney’s requests.

    In its informal response, the State suggested that the
California Supreme Court issue an order to show cause to the
State regarding Taylor’s claim that he was not the shooter.
This would allow the State to file a statement of non-
opposition to Taylor’s claim. The State added, however, that
even if Taylor was not the shooter, he was an aider and
abettor, and urged that he was therefore properly convicted of
the underlying crime of felony murder. The State suggested
that the trial court strike the “special-circumstance” and
firearm-use findings and resentence Taylor as an aider and
abettor. The record does not indicate that Taylor, still acting
pro se, had an opportunity to respond.

    In March 2006, the California Supreme Court issued an
order requiring the State to show cause why Taylor was “not
factually innocent of the special circumstance and the
firearm-use allegation, and why he should not be
resentenced.” In its response filed in the trial court, the State
conceded that Taylor was actually innocent of the “special-
circumstance” and firearm-use findings. The State again
argued, however, that Taylor was properly convicted of
felony murder because the jury could have found that, as the
second man, he aided and abetted the attempted robbery. The
State urged that the trial court strike the special findings and
resentence Taylor as an aider and abettor.

    Taylor, still acting pro se, filed a “Motion to Stop All
Sentencing,” arguing that the trial court could not resentence
him as an aider and abettor because the jury never found that
he was an aider and abettor. The trial court, however, refused
to consider Taylor’s argument on the ground that it could not
                      TAYLOR V. CATE                          9

consider matters outside the scope of the California Supreme
Court’s order. The court resentenced Taylor as an aider and
abettor to twenty-five years to life.

    Taylor obtained counsel and appealed. The California
Court of Appeal affirmed the trial court’s decision. It held
that the court correctly declined to address Taylor’s claim that
he was improperly resentenced for a crime no jury had found
he committed, because the Supreme Court’s order referred to
resentencing. Under California law, the trial court must limit
its inquiry upon remand from the Supreme Court to the
matters identified in the remand order. See, e.g., People v.
Lewis, 91 P.3d 928, 936 (Cal. 2004); People v. Bloyd, 729
P.2d 802, 820 (Cal. 1987). The appellate court did not
“express any view on the merits” of Taylor’s claim. The
California Supreme Court denied Taylor’s petition for review.
Taylor then petitioned the California Supreme Court for a
writ of habeas corpus, again arguing that he could not be
resentenced as an aider and abettor because the jury never
found that he was an aider and abettor. The Court denied the
petition.

    Taylor then turned to federal district court and urged the
same ground in a petition for relief under 28 U.S.C. § 2254.
The magistrate judge applied the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d)(1), and
concluded that the state court’s resentencing was a decision
entitled to deference, and that it was not unreasonable. The
district court adopted the magistrate judge’s decision and
denied a certificate of appealability. This court issued a
certificate of appealability on the following issue: “whether
resentencing appellant as an aider and abettor violated
appellant’s due process and jury trial rights.”
10                    TAYLOR V. CATE

                       DISCUSSION

    We review the district court’s denial of Taylor’s habeas
petition de novo. Gonzalez v. Knowles, 515 F.3d 1006, 1011
(9th Cir. 2008). The district court said that the state court’s
rejection of Taylor’s claim was reasonable under AEDPA. It
treated the resentencing as if it were the product of a reasoned
decision on Taylor’s due process claim. As the State
acknowledges on appeal, however, the district court erred in
applying AEDPA’s deferential standard of review. The
California courts never addressed Taylor’s claim that he was
denied due process when he was resentenced for an offense
no jury found he committed. See 28 U.S.C. § 2254(d)
(AEDPA’s standard of review applies to claims “adjudicated
on the merits in State court proceedings”). Because there is
no state court decision on the merits, we review Taylor’s
claim de novo.

    It is undisputed that the jury found Taylor shot Lim, but
Taylor was resentenced for assisting someone else commit
the robbery. Taylor argued he was entitled to a new trial and
a jury finding that he was an aider and abettor before he could
be sentenced as one. The state trial court agreed with Taylor
that, in hindsight, the jury was incorrect and that he was not
the shooter, but nonetheless resentenced Taylor as an aider
and abettor on the basis of facts the jury did not find. The
state courts never even considered the claim that the
resentencing violated his right to a jury trial as guaranteed by
the Sixth and Fourteenth Amendments.

   We conclude that the right to a jury trial in this case
means that Taylor had the right to have a jury decide what
conduct he committed. The Sixth Amendment and the Due
Process Clause “entitle a criminal defendant to a jury
                      TAYLOR V. CATE                        11

determination that [he] is guilty of every element of the crime
with which he is charged, beyond a reasonable doubt.”
Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (alteration
in original) (citation and internal quotation marks omitted);
see also United States v. Gaudin, 515 U.S. 506, 510 (1995);
Sullivan v. Louisiana, 508 U.S. 275, 277–78 (1993). This
right is “one of our most vital barriers to governmental
arbitrariness,” Reid v. Covert, 354 U.S. 1, 10 (1957), and
“fundamental to the American scheme of justice,” Duncan v.
Louisiana, 391 U.S. 145, 149 (1968). Resentencing on the
basis of facts that the jury did not find, and indeed that
conflicted with what the jury did find, violated Taylor’s Sixth
Amendment rights.

    The dissent tries to compare this case to one involving
prosecutorial misconduct during trial. Since such misconduct
would be reviewed for its effect on the jury under the
harmless error standard, see Hayes v. Brown, 399 F.3d 972,
984 (9th Cir. 2005), and the prosecutor in this case did not
even commit misconduct, the dissent asks us to conclude
there must be review for harmless error here too. That
argument does not come to grips with the problem in this
case, which is the absence of any jury verdict to support the
sentencing.

    The state essentially asks us to ignore what the jury
found. The state contends it is sufficient that the jury was
instructed on aiding and abetting, along with felony murder.
Yet the jury had to choose between two mutually inconsistent
roles. To convict Taylor as an aider and abettor under
California law, the jury would had to have found that he
specifically intended to encourage or assist someone else in
robbing the restaurant. People v. Perez, 113 P.3d 100,
103–05 (Cal. 2005) (noting a person cannot aid and abet
12                    TAYLOR V. CATE

himself). We know the jury did not make this finding
because it concluded Taylor was the person who robbed
Pioneer Chicken and shot Lim.

    Because we know the jury actually found that Taylor was
the shooter, the State’s reliance on Griffin v. United States,
502 U.S. 46 (1991), is misplaced. In Griffin, the Court held
that when the prosecutor puts multiple theories to a jury, one
of which is factually unsupported, the jury may be trusted to
have relied on the theory that is supported by the evidence.
Id. at 56. But in this case, since the prosecutor told the jury
it could not find the “special circumstance” true if it found
that Taylor was an aider and abettor, we know that the jury
found that Taylor was the shooter. We thus cannot assume
that the jury relied on aiding and abetting, because the jury’s
findings reveal it did not.

    The actual identity of the shooter was not known to the
prosecutor during trial. The State’s evidence was properly
presented to the jury. There was no trial error that could be
subject to harmless error analysis. Neither the Petitioner nor
the State has suggested that there was. Harmless error
analysis is often utilized where an omission or misinstruction
on the law may not have affected the jury verdict. See, e.g.,
Neder v. United States, 527 U.S. 1, 15 (1999); California v.
Roy, 519 U.S. 2, 5–6 (1996); see also Arizona v. Fulminante,
499 U.S. 279, 307–08 (1991) (“The common thread
connecting these cases is that each involved ‘trial
error’—error which occurred during the presentation of the
case to the jury, and which may therefore be quantitatively
assessed in the context of other evidence presented in order
to determine whether its admission was harmless . . . .”);
Hedgpeth v. Pulido, 555 U.S. 57, 60–62 (2008) (holding
harmless error analysis appropriate where the jury was
                      TAYLOR V. CATE                        13

instructed on multiple theories of guilt that would have
supported conviction, and one theory which was legally
invalid under California law).

     The prosecutor in this case presented alternative theories
of guilt, each of which was legally valid: that Taylor was the
shooter, or that Taylor was an aider and abettor. In this case,
unlike Hedgpeth, we know which theory the jury relied on.
Because the prosecutor sought a penalty that could be
imposed only if Taylor were the shooter, the jury was asked
to find he was the shooter, and the trial record fully supports
that finding. We now have extrinsic evidence that Taylor was
not the shooter, but no jury has ever heard it. Taylor’s
resentencing on the basis of such evidence violated the Sixth
Amendment and due process.

    The dissent agrees that Taylor should not have been
resentenced on the basis of conduct the jury found he did not
commit. The dissent says we should remand to the district
court to review the trial record for harmless error. Yet no
error can be found in the trial record. The error was in the
resentencing. Resentencing Taylor for a criminal role on
which the jury was instructed, but did not find, violates his
Sixth Amendment right to be tried and convicted by a jury.
And it does so in a way that is not amenable to harmless error
analysis. Taylor is entitled to a new trial.

                      CONCLUSION

    The judgment of the district court is REVERSED and the
case REMANDED with instructions to grant the writ.
14                    TAYLOR V. CATE

CLIFTON, Circuit Judge, concurring in part and dissenting
in part:

    The State of California concluded that it had sentenced
the petitioner in this case, Ronald Taylor, too harshly.
Although the State thought he was guilty of murder, the crime
for which he had been convicted, it concluded that he was an
aider and abettor and not a principal. The State made this
determination because Taylor, after denying his guilt at trial,
subsequently came clean about his involvement in the crime
and fingered the likely principal in an effort to get a lighter
sentence. The State eventually came to the same conclusion.
Although it was under no obligation to do so, the State then
laudably moved to give him that lighter sentence as an aider
and abettor.

    On Taylor’s petition for habeas corpus, the majority rules
that the State may not resentence Taylor but must instead
retry him or let him go. I expect that it may be difficult for
the State to retry him successfully more than a quarter
century after the crime was committed, for reasons having
nothing to do with Taylor’s actual guilt or innocence. Thus,
the result of our decision may well be to free Taylor and wipe
this crime off his record. By punishing California for doing
the right thing in reducing Taylor’s sentence, our decision
will create a disincentive for states to correct prisoners’
sentences in similar situations in the future.

    That result is both illogical and unwarranted under the
law. I agree with the majority, albeit with some hesitation,
that constitutional error arose when the State resentenced
Taylor as an aider and abettor, given that the jury originally
found that Taylor was the principal. But I disagree that the
correct remedy is to grant the writ and order a retrial.
                          TAYLOR V. CATE                              15

Instead, I would hold that the error in this case is amenable to
harmless error review, as is ordinarily the case when an error
is discerned on habeas corpus review, and would remand to
the district court for further proceedings to determine whether
Taylor suffered prejudice.

I. Background

    The following facts emerged at trial and, with one small
exception noted below, are undisputed in the record before
us. On November 19, 1987, petitioner Ronald Taylor and
another man stole a car with the intent to use it to commit a
robbery. The two men drove to a Pioneer Chicken restaurant
in Sunland, California. The first man entered the restaurant
and requested the key to the lavatory from Rajinder Kaur, the
attendant behind the counter. Kaur gave him the key, and the
man went out of the restaurant to the lavatory, which was
entered from the outside. The man kept the lavatory door ajar
and watched until two customers drove off. The second man
was sitting on the hood of the car in which the men had
arrived.1

     The first man then reentered the restaurant, walked behind
the counter, and gave Kaur the key back with his left hand
while pulling a gun from his pocket with his right. The
second man had by then also entered the restaurant and was
sitting in the dining area near the restaurant cook. The owner


 1
    This is the small exception. During a subsequent preliminary hearing
in connection with charges brought against Hugh Hayes, Jr., the person
Taylor eventually identified as the actual shooter, Taylor stated that the
second man (who Taylor had by then confessed was himself) sat in the
car. Wherever the second man was sitting, he was able to see the lavatory,
so the difference appears immaterial.
16                    TAYLOR V. CATE

of the restaurant, Lewis Lim, came out of the kitchen. While
the gunman was distracted by Lim, Kaur went through the
kitchen door to summon help. The gunman then punched
Lim and shot him through the head. As Kaur was trying to
leave, the second man struck her on the back and threw her to
the ground. The two men fled in the stolen car in which they
had come. The car was later found wiped down with brake
fluid to remove fingerprints, but Taylor’s palm print was
found on it.

    Taylor was arrested and charged with murdering Lim in
violation of California Penal Code § 187(a). The State also
alleged three special circumstances. First, it alleged that
Taylor committed the murder while engaged in the
commission of a robbery in violation of Penal Code
§ 190.2(a)(17). Next, the State alleged that Taylor personally
used a firearm during the crime. Third, the State alleged that
a principal was armed with a firearm during the offense.

    There was a dispute at trial whether Taylor, if he was
present at all, was the shooter or the second man. The second
man could be held guilty of murder under an aiding and
abetting theory, and the jury was instructed on this theory.
But, as the prosecutor acknowledged at the time, the jury
could not properly find Taylor guilty of the § 190.2(a)(17)
special circumstance on an aiding and abetting theory. Under
California law, someone found guilty as “an actual killer”
does not need to “have had any intent to kill at the time of the
commission of the offense” for the special circumstance to be
found true, but someone who aided and abetted the murder is
subject to the special circumstance only if it is found that he
acted with “the intent to kill.” Cal. Penal Code § 190.2(b),
(c). The prosecutor conceded that he had not proven that the
second man had the intent to kill Lim, so the jury could not
                      TAYLOR V. CATE                         17

convict Taylor of the special circumstance if it found Taylor
was the second man. This made a difference for Taylor’s
sentence: Taylor would only be eligible for life without
parole or death if the jury found the special circumstance true.
Cal. Penal Code § 190.2(a). Otherwise, Taylor would be
eligible for a term of 25 years to life. Cal. Penal Code
§ 190(a).

    At trial, Taylor could not deny, in light of his palm print,
that he had helped wipe down the stolen getaway car, but he
otherwise tried to minimize his involvement. His attorney
argued that he wasn’t “necessarily . . . even there at the time
of the robbery.” If he was there, the attorney argued, he was
the second man, and he had no idea that the shooter planned
to commit a robbery. Or, the attorney argued to the jury, the
shooter might simply have wanted to execute Lim, not
commit a robbery. If the jury believed this last theory, then
even if it found that Taylor was the shooter, it could not
convict Taylor of the first special circumstance, robbery
murder.

    In the face of the evidence against him, Taylor’s defense
amounted to a high-risk gamble. Taylor lost. The jury found
him guilty of first degree murder, attempted robbery, and the
unlawful taking of a vehicle. The jury also found that the
murder was committed while Taylor was engaged in an
attempted robbery and that Taylor personally used a firearm.

    After the verdict was rendered but before the sentence
was imposed, Taylor told his lawyer that he was present
during the robbery but that someone else was the shooter.
Taylor filed a motion for new trial or, in the alternative,
sought to strike the finding that he was the shooter and had
personally used a firearm. The trial court denied that motion,
18                     TAYLOR V. CATE

and he was sentenced to life without parole. The verdict was
upheld on appeal, and the California Supreme Court denied
Taylor’s petition for review.

    Seven years later, hoping that “somehow [he wouldn’t]
die in prison,” Taylor tried again to convince the State that he
had not been the actual killer, identifying his cousin, Hugh
Hayes, Jr., as the shooter. The Los Angeles Police
Department and Los Angeles County District Attorney’s
Office concluded that was true, and the district attorney’s
office filed an information charging Hayes with murder.
Taylor testified at Hayes’s preliminary hearing that he and
Hayes stole the car and drove around with a loaded gun
looking for a place to rob, and that he had been with Hayes at
the Pioneer Chicken during the attempted robbery. In 1999,
Hayes was tried for the murder but was acquitted. There was,
therefore, no adjudication inconsistent with the jury verdict
finding that Taylor was the actual shooter. Nonetheless, that
same year, the district attorney attempted to have Taylor’s
sentence recalled but failed.

    Even though the State had not managed to convict the
man it thought was the actual killer, the district attorney still
supported the effort to reduce Taylor’s sentence. In 2006, the
California Supreme Court issued an order to show cause why
Taylor should not be resentenced. The State agreed that
Taylor should be resentenced, and Taylor was resentenced to
25 years to life as an aider and abettor, plus an additional six
years for his prior prison time and felony record.

    In 2008, after the resentencing and an unsuccessful
appeal, Taylor filed another habeas corpus petition with the
California Supreme Court. Taylor’s argument was that the
jury had already found factually that he was not the aider and
                      TAYLOR V. CATE                         19

abettor in Lim’s murder; because it had determined that he
was the principal, so he could not be sentenced and held as an
aider and abettor. The petition was summarily denied.

    Taylor filed a habeas petition in federal district court.
The district court, following the magistrate judge’s
recommendation, denied relief. But the majority has now
accepted Taylor’s argument and has ordered the writ to be
granted, requiring the State either to retry Taylor or free him.

II. Discussion

    As discussed in detail below, our opinion here leads to a
result that seems to me strange and even a bit perverse. The
evidence that Taylor aided and abetted murder was very
strong. It seems unlikely that he has actually been prejudiced.
Yet, the majority’s remedy may well lead to Taylor being
freed and the conviction wiped from his record. At a
minimum, it imposes on the State the burden of trying to
convict Taylor of a crime committed long ago, following a
fair trial in which he could have been honest about his role
but instead gambled for a full acquittal and lost. Moreover,
this case has only arisen because California moved to
resentence Taylor. Otherwise, Taylor would have had no
basis for obtaining the writ. We should not punish California
for doing the right thing, nor should we create an incentive
for states in the future to avoid doing the right thing.

    In my view, this case does not represent the kind of
“extreme malfunction[] in [a] state criminal justice system[]”
that may justify granting federal habeas relief. Harrington v.
Richter, 131 S. Ct. 770, 786 (2011) (quoting Jackson v.
Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J.,
concurring in judgment)). There is no malfunction of any
20                    TAYLOR V. CATE

kind, let alone an extreme one, when a state voluntarily
moves to resentence a prisoner in response to that prisoner’s
belated confession.

  It does not have to be like this. The Sixth and Fourteenth
Amendments do not compel this illogical result.

     A. The Sixth Amendment violation

    Although the issue is not free from doubt, I agree with the
majority that there has been a Sixth Amendment violation in
this case. This violation stems from California’s resentencing
of Taylor under an aiding and abetting theory when the jury
did not find all the “elements” of aiding and abetting. See
Apprendi v. New Jersey, 530 U.S. 466, 477 (2000)
(reaffirming that a criminal defendant is entitled to “a jury
determination that [he] is guilty of every element of the crime
with which he is charged, beyond a reasonable doubt”
(quoting United States v. Gaudin, 515 U.S. 506, 510 (1995))
(emphasis added)). I therefore concur in part with the
majority.

    I say that the issue is not free from doubt, however,
because the federal courts have declined to treat the
“elements” of aiding and abetting liability like the elements
of a crime for all purposes. It is not Apprendi error to fail to
allege the elements of aiding and abetting in an indictment.
See, e.g., United States v. Schuh, 289 F.3d 968, 976 (7th Cir.
2002). This is because aiding and abetting is not itself a
substantive offense. See United States v. Armstrong, 909
F.2d 1238, 1241 (9th Cir. 1990). Rather, aiding and abetting
is only a theory of criminal liability and does not have
elements.
                       TAYLOR V. CATE                          21

     Normally, the failure of a jury to “find” a particular
theory is not an issue that arises on appellate review. Jurors
need not agree on a single theory of liability. Schad v.
Arizona, 501 U.S. 624, 645 (1991). And jurors are presumed
to be capable of determining which theory of liability, if any,
fits the facts of a particular case. Griffin v. United States, 502
U.S. 46, 59 (1991). The issue of whether a jury has “found”
a theory is usually not a question for an appellate court.

    Nevertheless, I am persuaded that, in this unusual case,
the failure of the jury to convict Taylor on an aiding and
abetting theory should be treated like the failure of a jury to
find an element of a crime. As the majority points out, we
know that the jury settled on a theory that Taylor was the
shooter, not an aider and abettor. We have previously
considered the failure of a jury to find the elements of aiding
and abetting liability as similar to the failure to find the
elements of a crime. See, e.g., Martinez v. Borg, 937 F.2d
422, 423 (9th Cir. 1991) (holding that “Beeman error is
constitutional error because the jury did not have the
opportunity to find each element of the crime beyond a
reasonable doubt,” and going on to apply harmless error
review) (citing People v. Beeman, 674 P.2d 1318 (Cal.
1984)). Therefore, I agree that there is a constitutional
violation in this case.

    B. The proper remedy

    I respectfully disagree with the majority, however, that
the correct remedy for this constitutional violation is the
granting of the writ. This resentencing error flowed directly
from an inadvertent error by the State at Taylor’s trial, as well
as from Taylor’s high-risk defense gamble. We should
22                     TAYLOR V. CATE

therefore consider whether this error, like other trial errors, is
amenable to review for harmless error.

    When a prisoner challenges his sentence or conviction on
collateral attack in federal court, and the court concludes that
his constitutional rights have been infringed, the error falls
into one of two categories. Only a “very limited” number of
constitutional errors are deemed “structural” and require
automatic reversal. Johnson v. United States, 520 U.S. 461,
468 (1997). These include grave defects tainting the entire
process, such as a biased judge or the total deprivation of the
right to counsel. See id. at 468–69 (citing Gideon v.
Wainwright, 372 U.S. 335 (1963), and Tumey v. Ohio, 273
U.S. 510 (1927)). If the error does not fall into this very
limited category, it is a “trial error” and is subject to
harmlessness analysis, whereby the court is required to
determine whether the error had a “substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht
v. Abrahamson, 507 U.S. 619, 631 (1993) (quoting Kotteakos
v. United States, 328 U.S. 750, 776 (1946)). See generally
Arizona v. Fulminante, 499 U.S. 279, 306–12 (1991)
(dividing errors into “structural defects” and “trial errors”).

    A “trial error” is an “error which occurred during the
presentation of the case to the jury, and which may therefore
be quantitatively assessed in the context of other evidence
presented in order to determine whether its admission was
harmless beyond a reasonable doubt.” Fulminante, 499 U.S.
at 307–08. It is clear that, even though Taylor’s trial was fair,
there was an “error” in the presentation of the case to the jury.
The State presented a theory that turned out to be wrong.
This theory led the jury wrongly to find that Taylor was the
actual shooter.
                      TAYLOR V. CATE                        23

     That was a result that everyone today agrees was
incorrect. If the State had not argued to the jury that Taylor
was the shooter, the jury would not have found that he was.
I therefore disagree with the majority that “[t]here was no
trial error that could be subject to harmless error analysis.”
Maj. op. at 12. The trial error was that the State presented a
theory that turned out to be wrong.

     The only reason the majority reaches the conclusion that
this was not a “trial error” is that the State was not aware of
its error at the time. See Maj. op. at 12 (“The actual identity
of the shooter was not known to the prosecutor during trial.”).
But this does not make a difference in distinguishing between
trial errors and structural defects. For that purpose, an error
is an error, regardless of whether someone is aware of it or
not. The error was no more “structural” because it was
unknowingly committed.

    The majority assumes, in effect, that the error was
structural because it does not fit neatly into an established
category of trial error. That is backwards. It is the category
of structural errors that is the exception, not the rule.

    Suppose, in contrast to the actual facts here, the
prosecutor had actually known that Taylor was not the actual
shooter but argued and presented evidence to that effect to the
jury anyway. That would be trial error subject to harmless
error review. We have held that it is not structural error for
a prosecutor knowingly to put a false theory to a jury. Hayes
v. Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en banc). That
kind of behavior by the prosecutor—described by us in Hayes
as “pernicious” and surely worse than what happened
here—would be considered a trial error and would not lead to
an automatic reversal. Id. at 981 (quoting Willhoite v.
24                    TAYLOR V. CATE

Vasquez, 921 F.2d 247, 251 (9th Cir. 1990) (Trott, J.,
concurring)).

    But because the State did not knowingly present a
factually false theory in this case—did not act perniciously
here—the majority concludes that the error here was
structural and does require an automatic reversal, without
requiring Taylor to demonstrate actual prejudice. That result
is counterintuitive, as well as at odds with precedent. It
makes no sense to disregard the customary requirement for
actual prejudice because the State unknowingly presented a
false theory at trial. Logic compels that we conclude that the
error in this case was a trial error.

    Supreme Court precedent also leads to this conclusion.
The Court has established that, even on direct review, a
failure by the jury to find an element of a crime is susceptible
to harmless error analysis. Neder v. United States, 527 U.S.
1, 11 (1999). The failure of the jury to find the “elements” of
aiding and abetting should not render the resentencing error
structural, as the majority concludes.

    The majority’s approach is all the weaker because, unlike
Neder, this case is on collateral and not direct review. As
noted above, we have the power to grant the writ only as a
“guard against extreme malfunctions in the state criminal
justice systems.” Richter, 131 S. Ct. at 786 (quoting Jackson,
443 U.S. at 332 n.5 (Stevens, J., concurring in judgment)).
And there is no malfunction when the State willingly chooses
to reduce a prisoner’s sentence on account of his tardy
confession.

   There is analogous precedent from the Supreme Court on
which we should rely. The case most similar to this situation
                       TAYLOR V. CATE                          25

is Hedgpeth v. Pulido, 555 U.S. 57 (2008) (per curiam).
California prosecuted Pulido for the same crime as here,
aiding and abetting felony murder. The State presented two
inconsistent theories: first, that Pulido formed the intent to aid
and abet the underlying felony before the murder; and second,
that he formed the necessary intent after the murder. Pulido,
555 U.S. at 59. Under California law, the second theory was
invalid.

    On habeas review, our court held that the error was
structural. Pulido v. Chrones, 487 F.3d 669 (9th Cir. 2007)
(per curiam). The Supreme Court reversed us. Even though
one of the theories of aiding and abetting was invalid as a
matter of law, harmless error review still applied.

    Here, as in Pulido, the State put forward two mutually
inconsistent theories of the defendant’s guilt: that Taylor was
the shooter or that he was the second man. We know that the
jury adopted one of these theories, that he was the actual
shooter, and implicitly rejected the other. The Supreme Court
reversed us in Pulido because it would be “patently illogical”
to “draw[] a distinction between alternative-theory error and
the instructional error[] in Neder.” 555 U.S. at 61 (internal
quotation marks omitted). All that separates this case from
Pulido is that one of the theories here was wrong as a matter
of fact, not of law.

    When a jury errs by accepting an incorrect legal theory,
we apply harmless error review. In this rare situation when
we know that the prosecutor caused the jury to credit the
wrong evidence, there is no reason to apply a more stringent
standard.
26                    TAYLOR V. CATE

    Comparing this case to trial error cases is enough to show
that the error in this case should be subject to harmlessness
review. Comparing this situation to structural errors leads to
the same result. In fact, because structural defects are “the
exception and not the rule,” the majority should bear the
burden of explaining why the resentencing error in this case
warrants automatic reversal. Pulido, 555 U.S. 61. It cannot
do so.

     The Supreme Court has held that an error is structural
when it “necessarily render[s] a trial fundamentally unfair”
and “vitiates all the jury’s findings.” Neder, 527 U.S. at 11
(quoting Rose v. Clark, 478 U.S. 570, 577 (1986), and
Sullivan v. Louisiana, 508 U.S. 275, 281 (1993)). Taylor’s
trial and resentencing were fair. The jury’s most important
findings remained intact, even considering Taylor’s revised,
post-conviction version of events. It is hard to see the
“fundamental unfairness” of a trial process where the
defendant gambles on being acquitted, the jury convicts him
of a crime in which he is indisputably involved, and the State
then invests considerable effort to reduce his sentence in
response to the defendant’s post-trial admissions.

     California’s decision to give Taylor the benefit of his
belated confession did not “vitiate all the jury’s findings.”
The most important findings stand: Taylor was present at the
scene of the crime and was involved in an attempted robbery
in which Lim was murdered. The only finding that is vitiated
is that Taylor pulled the trigger. This is far short of what is
required for us to find structural error.
                      TAYLOR V. CATE                         27

   C. The consequences of the majority’s remedy

    As noted above, to obtain habeas relief in federal court a
petitioner must ordinarily demonstrate that the error had a
“substantial and injurious effect or influence in determining
the jury’s verdict.” Brecht, 507 U.S. at 631. By concluding
that the error here was structural, the majority opinion
relieves Taylor of that burden. That probably makes a critical
difference. I would remand to the district court for the parties
to address that question and for the district court to make a
factual determination. Based on the record as it appears to
me at this point, however, the evidence against Taylor
appeared strong, and I think it would be an uphill climb for
him to make that showing.

    Under California law, an aider and abettor must “share the
specific intent of the perpetrator” of a crime in order to be
found guilty. Beeman, 674 P.2d at 1326. In this case, Taylor
would be guilty of aiding and abetting felony murder if he
knew that the gunman entered Pioneer Chicken in order to
rob it. It is doubtful that the jury would have concluded
otherwise. Indeed, Taylor has since admitted that he and the
gunman intended to rob a fast food restaurant that day and
stole a car for that purpose. He admitted that they had robbed
five or six restaurants in the previous month. Taylor’s sole
defense would presumably be that he didn’t know that Hayes
was planning to rob that particular restaurant. This seems
extraordinarily weak, and the proposition that he could have
persuaded the jury that his companion did not intend to rob
the Pioneer Chicken seems fanciful. At oral argument before
us, Taylor’s counsel conceded that the argument that he was
28                        TAYLOR V. CATE

not planning to rob the Pioneer Chicken was flimsy. We
should not pretend otherwise.2

     But retrying Taylor at this point would not be easy. The
killing took place in 1987, more than a quarter century ago.
Witnesses lose their memories, disappear, or die. Even with
Taylor’s testimony, Hayes was acquitted by a jury when he
was tried years after the events. In addition, Taylor could
have an argument that a retrial on an aiding and abetting
theory would be barred under the Double Jeopardy Clause.
See, e.g., Ashe v. Swenson, 397 U.S. 436 (1970); Santamaria
v. Horsley, 133 F.3d 1242 (9th Cir. 1998) (en banc). Taylor’s
counsel has understandably been quiet about this argument,
responding to inquiry at oral argument by saying only that the
question is not currently before this court. At a minimum, the
majority opinion imposes on the State the burden of trying to
convict Taylor of a crime committed long ago, following a
fair trial in which he had could have been honest about his
role but instead gambled for a full acquittal and lost.

    This result is all the more bizarre considering how this
case comes before us. Taylor objects that the State
committed error in his resentencing. If California had not


 2
    Moreover, the crime underlying the felony murder, attempted robbery,
may have been complete as soon as the gunman went into the lavatory to
case the joint. In California, attempt may consist of “a direct but
ineffectual act” done toward the commission of a crime. Cal. Jury Instr.
6.00; see, e.g., People v. Dillon, 668 P.2d 697, 704 (Cal. 1983)
(substantial evidence supported the jury’s finding that the defendant
committed attempted robbery, where the defendant and his companions
“watched for their opportunity” to rob a marijuana field without entering
it). There was testimony in the first trial that Taylor watched the gunman
go into the lavatory and keep the door ajar, so he would have known that
the gunman planned a robbery.
                       TAYLOR V. CATE                         29

moved to resentence him, this case would not be here.
Taylor’s only option would be to plead that, contrary to the
jury verdict, he was actually innocent of the personal use of
a firearm special circumstance. But this claim, without any
supporting constitutional challenge, would likely fail. See
Herrera v. Collins, 506 U.S. 390, 404–05 (1993).

    To avoid all of this, the State could simply have declined
to resentence Taylor. But we should be glad that it did. It
would have been wrong for the State to hold Taylor on a
theory of personal liability when it sought to convict Hayes
under the same theory. “[T]here is surely something
troubling about having the same sovereign, particularly acting
through the same prosecutor, urge upon two juries a
conviction of both A and B, when it is clear that the crime
was committed by either A or B.” Thompson v. Calderon,
120 F.3d 1045, 1070 (9th Cir. 1997) (en banc) (Kozinski, J.,
dissenting), rev’d, 523 U.S. 538 (1998).

    We should not punish the State of California for doing the
right thing in this case by forcing it to retry Taylor or free
him. Neither should we discourage other prosecutors from
doing the right thing in the future. Justice is not served by the
result reached here.

    I respectfully dissent.
