Filed 7/14/17 In re Cortez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



In re ADRIAN NATHANIEL CORTEZ

on

Habeas Corpus.
D071551

(San Diego County
Super. Ct. Nos. SCS189535,
HSC11536)

ORIGINAL PROCEEDING in habeas corpus. Petition granted with directions.

Lynda A. Romero, under appointment by the Court of Appeal, for Petitioner.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Respondent.
In 2006, a jury convicted Adrian Nathaniel Cortez of first degree premeditated murder as either an aider and abettor, or as a conspirator. In closing argument, the prosecutor told the jury that although Cortez was not present when the victim was killed by someone else, Cortez was culpable because the killing was a "natural and probable consequence of the common plan or design of the conspiracy. And this is the theory in which the defendant Cortez is responsible for the murder . . . ." (Italics added.)
There was nothing wrong with the prosecutor's first degree murder theory in 2006, but the law changed in 2014 when 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, and not under the natural and probable consequences doctrine. (People v. Chiu (2014) 59 Cal.4th 155, 158-159 (Chiu).)
Relying on Chiu, Cortez filed this habeas corpus petition, asserting the record does not establish beyond a reasonable doubt that the jury convicted him of first degree murder on a legally authorized ground. The respondent, Director of the Department of Corrections and Rehabilitation (Department), concedes Chiu error occurred in this case. However, the Department contends the error was harmless because the instructions and evidence support a verdict on a valid theory of direct aiding and abetting.
We conclude the Chiu error was prejudicial. We grant the petition and remand to the superior court with directions to allow the People to accept a reduction of Cortez's murder conviction to second degree murder or elect to retry him on first degree murder under a theory or theories other than natural and probable consequences. (See In re Brigham (2016) 3 Cal.App.5th 318, 333 (Brigham).)
FACTUAL AND PROCEDURAL BACKGROUND
The facts are from our prior opinion in People v. Cortez (Oct. 2, 2008, D049716) [nonpub. opn.] (Cortez I).
A. The Conspiracy and Murder
Cortez was the leader of a criminal gang in Chula Vista called Varrio Chula Vista (VCV). In 2004, a member of a rival gang, Otay, shot VCV gang member Benjamin "Rocky" Moreno. A few weeks later, several VCV gang members met to discuss this shooting. VCV gang members Raymond Pacheco, William Parra, Jacob Sowder, and Jahaziel Fausto attended this meeting. At the meeting, Cortez asked whether anyone would be willing to shoot an Otay gang member to retaliate for Moreno's shooting. Fausto and Sowder volunteered, and Parra agreed to drive. Cortez gave Fausto a gun.
Pacheco, Parra, Fausto, and Sowder left the meeting in Parra's car. When they saw several people in a public park, Parra parked the car. Fausto exited the car and approached the people in the park, asking them, "Where are you from?" Arturo Manzo, an Otay gang member, said, "Otay." Fausto then shot Manzo with the gun Cortez had given him. When Manzo fell to the ground, Fausto fired more shots at him.
Manzo died. Police found five shell casings within 15 feet of his body. After killing Manzo, Fausto ran back to Parra's car, saying he got "the guy from Otay."
B. The Charges
In 2006, the San Diego County District Attorney filed a third amended information (information) jointly charging Cortez and Fausto with (1) conspiracy to commit assault with a deadly weapon (Pen. Code, §§ 182, subd. (a)(1), 245, subd. (a)(1); count 1); and (2) murder (§ 187, subd. (a); count 2). The information also alleged gang and firearm enhancements and that Cortez had a prior robbery conviction for which he served a prison term and that was a strike under the "Three Strikes" law.
C. The Murder Theory Against Cortez
As the prosecution was nearing the end of its case-in-chief, and outside the jury's presence, the prosecutor discussed with the court "the natural and probable consequence[s] theory." The court stated it would instruct the jury that a conspirator is criminally responsible "for any act of any member of the conspiracy if that act is done to further the conspiracy, and that act is a natural and probable consequence of the common plan or design of the conspiracy." Further, the court summarized the evidence supporting the natural-and-probable-consequences instruction, stating:
"There is the testimony at the trial that they had this meeting, that it was for purposes of putting in work or getting revenge for Rocky having been shot. [¶] There is testimony that . . . Cortez handed a gun to . . . Fausto, and that . . . Fausto then, with the others in the automobile, went around looking for members of the rival gang in order to get revenge for the shooting.

"They came upon the people at [the] Park, and . . . Fausto got out of the car with the gun in his possession, went over and shot one of the people that they believed to be a member of the rival gang. So giving a person a gun, this jury [could] conclude[] that is the natural and probable consequence of the conspiracy to commit the crime of assault with a deadly weapon . . . . [I]f you shoot someone, the natural and probable consequence, even if you only intend to frighten them, is that the bullet may find its target into the heart, and that person may die."

The prosecutor replied, "That's correct. Exactly as you had it written, Your Honor, is what I intended to argue . . . . I think you outlined it perfectly." (Italics added.)
D. Conspiracy Instructions
The court instructed the jury about conspiracy liability under the natural and probable consequences doctrine, stating:
"A member of a conspiracy is criminally responsible for the crimes that he or she conspires to commit, no matter which member of the conspiracy commits the crime.

"A member of the conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy. . . . [¶] . . . [¶]

"To prove that . . . Cortez is guilty of the crime of murder, as charged in [c]ount [t]wo, the People must prove that: [¶] 1. The defendant conspired to commit . . . assault . . . in violation of . . . section 245[, subdivision] (a)(1); [¶] 2. A member of the conspiracy committed [m]urder, a violation of . . . section 187[, subdivision] (a), to further the conspiracy; and [¶] 3. Murder . . . was a natural and probable consequence of the common plan or design of the crime that the defendant conspired to commit." (Boldface and some capitalization omitted, italics added.)

E. Instructions on Aiding and Abetting—Natural and Probable Consequences
The court also instructed the jury that Cortez could be convicted of murder as an aider and abettor under the natural and probable consequences doctrine, stating:
"A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. Two, he or she may have aided and abetted someone else, who committed the crime. . . .

"Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime." (Boldface and some capitalization omitted.)

"Although not present at the time of the killing . . . Cortez may be guilty of murder . . . if he aided and abetted or conspired with someone else to commit assault . . . and murder, was a natural and probable consequence of the common plan or design of the crime that the defendant aided and abetted or conspired to commit." (Boldface and some capitalization omitted, italics added.)

F. Instructions on Aiding and Abetting—Direct Liability
The court also instructed the jury that it could convict Cortez of murder under direct aiding and abetting principles, stating:
"To prove that . . . Cortez 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." (Boldface and some capitalization omitted.)

"To be guilty of murder as an aider and abettor, . . . Cortez must have known of the perpetrator's unlawful purpose and must have formed the intent to aid, facilitate, promote, instigate, or encourage the commission of the murder before the commission of the murder." (Boldface and some capitalization omitted.)

G. The Prosecutor's Closing Argument—Natural and Probable Consequences
In closing argument, the prosecutor first told the jury that Cortez conspired with Fausto to commit assault with a deadly weapon:
"Fausto and Cortez are both charged with the conspiracy to commit a crime. That agreement at the meeting on October 16th to retaliate against Otay and that crime that they are charged with conspiring to do is an assault with a deadly weapon resulting in great bodily injury. That was the conspiracy."

Then, the prosecutor told the jury a conspirator is also liable for a crime that is the natural and probable consequence of the target offense:
"A member of the conspiracy is also responsible for any act of any member of that conspiracy if it is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy."

Next, the prosecutor told the jury to convict Cortez of murder under a conspiracy theory because murder was the natural and probable consequences of the assault:
". . . And this is the theory in which the defendant Cortez is responsible for the murder of Arturo Manzo. Because when you give a gun to a fellow gang member with the intent that he goes out to use that gun and he shoots him, when he kills him, you are responsible for that act. . . ." (Italics added.)

"What is the natural and probable consequence? [It i]s one that a reasonable person would know is likely to happen if nothing unusual intervenes. You have to look at the ultimate result in this case. Is it natural and probable that when someone has a firearm that you have given them and they go out to shoot someone, is it probable that that person may result in their death? Is it likely? That is what you have to determine." (Italics added.)

"And I would surmise that at any time you fire a gun at someone, even if you didn't intend to kill them, it is probable that person is going to die. And if the person dies as a result of that, you can be liable for that act. And that is what happened in this case." (Italics added.)

Later in closing argument, the prosecutor told the jury Cortez was also liable as an aider and abettor:
"[T]he law says [a] person who aids and abets a crime with knowledge of the unlawful purpose of the perpetrator—he gave him that gun knowing he was going to go out and retaliate against Otay—he encouraged or facilitated the crime. He is the one who riled up the VCV homies. He is the one—Adrian Cortez is the one who requested volunteers to retaliate, go blast those fools from Otay for what they did to Rocky. He instigated this incident."

Then, the prosecutor told the jury that it should convict Cortez of murder as an aider and abettor under the natural and probable consequences doctrine:
"In order to be found liable in the theory of aiding and abetting, you do not have to be present once again. One who aids and abets a crime is not only guilty of that crime, but also guilty of other crimes committed by a principal which is the natural and probable consequences of that crime. If you intend to go out and assault gang members and you aid and abet in that crime by providing the firearm to do it and a murder results from it, you are just as liable." (Italics added.)

Next, encompassing both conspiracy and aiding and abetting, the prosecutor again told the jury to convict Cortez of murder under the natural and probable consequences doctrine:
"[A]s I said to you earlier, the target crime, the target crime of the conspiracy was the assault with a deadly weapon, force likely to produce great bodily injury. The judge will give you all of the elements of each of those offen[s]es.

"So you once again go through them and see if they fit what happened in this case. He encouraged or instigated, provided the gun. Fausto was armed with a firearm. Arturo Manzo was murdered. Crime of murder was a natural and probable consequence of the target crime, assault with a deadly weapon. . . . (Italics added.)

". . . The whole reason that he requested volunteers to go retaliate was to shoot one of the Otay gang members. Did he say to him, 'I want you to kill him'? No, he didn't say that . . . . But when you tell someone to go shoot someone, is it natural that death may result? And that is really the standard that you have to use." (Italics added.)

H. Verdict
The jury convicted Cortez of conspiracy to commit assault, and first degree murder. The jury found true the gang and firearm enhancements. At a bifurcated proceeding, Cortez admitted the prior conviction allegations.
I. Sentencing, Appeals, Resentencing
The court sentenced Cortez to a total term of 76 years to life in prison. Cortez appealed. We vacated the sentence for various sentencing errors and remanded for resentencing. (Cortez I, supra, D049716.)
On remand, the trial court sentenced Cortez to 51 years to life on count 2, consisting of a 25-year-to-life sentence, doubled, and a one-year consecutive term for the prior prison term allegation, with a concurrent two-year term as to count 1. (See People v. Cortez (Apr. 14, 2010, D055056) [nonpub. opn.] at p. 3 (Cortez II).)
Cortez again appealed, contending the court committed sentencing error. The People also argued that the court had failed to impose any term for the firearm enhancement as to count 2, and thus imposed an unauthorized sentence. (Cortez II, supra, D055056, at pp. 3-5.) This court again reversed and remanded to correct sentencing errors. (Id. at pp. 5-6.)
At the resentencing hearing, the court sentenced Cortez to prison for 76 years to life, consisting of 25 years to life, doubled, plus a consecutive 25 years for the firearm enhancement on count 2 and a consecutive one-year term for the prison prior. (See People v. Cortez (Mar. 21, 2011, D058166) [nonpub. opn.] at p. 4 (Cortez III).)
Cortez appealed again. This court affirmed in Cortez III.
J. Habeas Petitions in Superior Court
In July 2015, Cortez filed a document in the superior court entitled "Petition for writ of error coram nobis." (Italics added.) There, Cortez asserted the trial court abused its discretion in imposing a $10,000 restitution fine without determining his ability to pay.
In December 2015, Cortez filed another document entitled "Petition for writ of error coram nobis" in the superior court. (Italics added.) There, Cortez asserted, among other claims, that he "stands wrongfully imprisoned" because he was convicted in violation of Chiu.
The superior court deemed Cortez's petitions to be petitions for writ of habeas corpus and denied them.
K. This Habeas Petition
In January 2017, Cortez filed the instant petition for writ of habeas corpus, seeking reversal of his first degree murder conviction under Chiu. He also requested this court take judicial notice of the records in his prior appeals. We granted the request for judicial notice and issued an order to show cause.
DISCUSSION
I. THE CHIU ERROR IS PREJUDICIAL IN THIS CASE
A. Direct Aiding and Abetting/Natural and Probable Consequences
An aider and abettor may be convicted of crimes committed by the perpetrator under two alternative theories: directing aiding and abetting, and the natural and probable consequences doctrine. (People v. McCoy (2001) 25 Cal.4th 1111, 1117-1118 (McCoy).) Under direct aiding and abetting principles, the defendant is guilty of the intended (or target) offense if he or she acted with knowledge of the criminal purpose of the perpetrator and with an intent or purpose of either committing, or of encouraging or facilitating commission of, the target offense. (Id. at p. 1118.)
An aider and abettor can also be guilty of unintended crimes under the natural and probable consequences doctrine. When the aider and abettor acts with knowledge of the criminal purpose of the perpetrator and with an intent or purpose of either committing, or of encouraging or facilitating commission of, the target offense, he or she is guilty of both the intended crime and any other offense (the nontarget offense) committed by his or her confederate that was a " ' "natural and probable consequence" ' " of the target crime. (McCoy, supra, 25 Cal.4th at p. 1117.) "Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault." (Ibid.)
The natural and probable consequences doctrine applies not only to aiding and abetting but also to conspiracy. (People v. Rivera (2015) 234 Cal.App.4th 1350, 1356 (Rivera).) "Under both these theories, the extension of liability to additional reasonably foreseeable offenses rests on the 'policy [that] conspirators and aiders and abettors should be responsible for the criminal harms they have naturally, probably and foreseeably put in motion.' " (Ibid.)
B. Chiu
In Chiu, supra, 59 Cal.4th 155, the California Supreme Court held "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 Chiu court explained 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 . . . ." (Id. at p. 166.)
The court in Chiu, supra, 59 Cal.4th 155 also held that "[w]hen 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. [Citations.] 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." (Id. at p. 167.)
Chiu is retroactive to convictions, like Cortez's here, that were final on appeal when Chiu was decided. (In re Lopez (2016) 246 Cal.App.4th 350, 354 (Lopez).) Moreover, Chiu applies not only to aider and abettor liability, but also where the jury is instructed it may find first degree murder based on the theory that the murder was a natural and probable consequence of another target crime committed pursuant to a conspiracy. (Rivera, supra, 234 Cal.App.4th at pp. 1355-1356.)
C. The Department Concedes Chiu Error Occurred
Here, the Department concedes, "Pursuant to the high court's holding in Chiu, the jury was improperly instructed that it could find first degree premeditated murder was a natural and probable consequence of conspiracy to commit assault." However, the Department contends "the error was harmless because the instructions and the evidence support a verdict based on a valid legal theory of direct aiding and abetting."
D. The Error Was Prejudicial
The Department's primary argument is the error is harmless because Cortez has failed to show he was not guilty of first degree murder as a matter of law, a requirement for habeas corpus relief generally. The Department contends that although Chiu "narrowed [the] scope" of substantive liability for that crime, it did not redefine the crime. The Department contends that under these circumstances, Cortez is entitled to habeas corpus only if " 'as a matter of law,' his conduct did not violate the statute under which he was convicted."
This same argument has been made, and rejected, in two cases the Department does not cite: In re Johnson (2016) 246 Cal.App.4th 1396, 1404 (Johnson) and Brigham, supra, 3 Cal.App.5th at pages 329-330.
Johnson, supra, 246 Cal.App.4th 1396 involves a habeas corpus petition following a conviction for first degree murder. The petitioner asserted his conviction was invalid under Chiu. In Johnson, as here, the respondent asserted the petition should be denied because the petitioner was unable to show he was not guilty of first degree murder as a matter of law. (Johnson, at pp. 1403-1404.) The court rejected that argument because Chiu "represent[s] changes in the law, not merely a narrowing of the court's interpretation of the law . . . ." (Johnson, at p. 1406.) The Johnson court also rejected the respondent's argument because Chiu error "goes to the reliability of the conviction and the question of guilt or innocence of the crime for which the petitioner was convicted—first degree premeditated murder." (Id. at p. 1407.) Johnson holds the standard for assessing the prejudicial effect of Chiu error when raised in a petition for habeas corpus is whether the error is harmless beyond a reasonable doubt. (Ibid.)
The court in Brigham, supra, 3 Cal.App.5th 318 considered the same issue, in the context of a habeas corpus petition following a conviction for first degree murder as an aider and abettor. There, like the Department does here, the respondent asserted the Chapman beyond-a-reasonable-doubt standard should not be used on collateral review; rather, respondent asserted the petitioner must show he was not guilty of first degree murder as a matter of law. (Brigham, at pp. 329-330.) The Brigham court rejected this argument, on much the same grounds as it was rejected in Johnson, supra, 3 Cal.App.5th at pages 1403-1405. The court in Brigham applied the Chapman standard in assessing the prejudicial effect of Chiu error raised in a habeas corpus petition. (Brigham, at p. 332.)
The Department filed its return in this case in April 2017, which is 11 months after Johnson and seven months after Brigham. The analysis in these cases is persuasive and the Department makes no attempt to provide a basis for us to distinguish or disagree with these holdings. (See The MEGA Life & Health Ins. Co. v. Superior Court (2009) 172 Cal.App.4th 1522, 1529 [stare decisis serves important goals and absent good reasons, we ordinarily follow the decisions of other courts of appeal].)
Moreover, in In re Hansen (2014) 227 Cal.App.4th 906 (Hansen), this court considered a similar issue raised in a habeas corpus petition, and we applied the Chapman standard in assessing the prejudicial effect of such error. In Hansen, the habeas corpus petitioner had been convicted in 1992 of second degree murder. The jury also convicted him of shooting at an inhabited dwelling. (Id. at p. 910.) At the time of his conviction, the offense of shooting at an inhabited dwelling could form the basis for a second degree felony-murder conviction. However, 15 years later, in People v. Chun (2009) 45 Cal.4th 1172 (Chun), the California Supreme Court reconsidered the scope of the second degree felony-murder rule and held that the offense of shooting at an inhabited dwelling was "assaultive" in nature, and thus merged with a resulting homicide, such that the second degree felony-murder rule could not apply. (Id. at p. 1200.) Relying on Chun, the defendant in Hansen filed a petition for a writ of habeas corpus, asserting the holding in Chun applied to the theory of second degree murder presented at his trial, and required reversal of his conviction. (Hansen, at p. 911.)
In Hansen we held the Chun error was prejudicial under the Chapman standard for prejudice where the jury is instructed on alternative theories, one of which is legally correct and the other legally incorrect. (Hansen, supra, 227 Cal.App.4th at p. 921.)
The reasoning in Hansen is equally applicable here. Both Chun and Chiu represent changes in the law, not merely a narrowing of the court's interpretation of the law as the Department contends. (Johnson, supra, 246 Cal.App.4th at p. 1406.) Moreover, as in Hansen, here the error affects the reliability of the petitioner's conviction, and not merely a review of factual determinations made upon conflicting evidence after a fair trial. (See discussion of Hansen in Johnson, at pp. 1405-1407.)
Based on the jury instructions and the prosecutor's closing argument in this case, we cannot conclude beyond a reasonable doubt that the jury convicted Cortez for first-degree murder on the legally valid theory that he directly aided and abetted the premeditated murder, and not on the legally invalid natural and probable consequences doctrine.
The court instructed the jury on the natural and probable consequences doctrine, both in the context of conspiracy and also under aider and abettor liability. Indeed, the court instructed the jury it could convict Cortez of murder on a natural and probable consequences theory a third time, in instructing on Cortez's alibi defense, stating:
"Although not present at the time of the killing, . . . Cortez may be guilty of murder . . . if he aided and abetted or conspired with someone else to commit assault . . . and murder, was a natural and probable consequence of the common plan or design of the crime that the defendant aided and abetted or conspired to commit." (Boldface and some capitalization omitted.)

In closing argument, the prosecutor told the jury the natural and probable consequences doctrine was not merely one way to convict Cortez of murder, but rather was "the theory" under which the jury should convict him of murder. (Italics added.) In closing argument, the prosecutor also told the jury that whether Manzo's death was a "natural and probable" consequence of Cortez's giving Fausto a gun was "what you have to determine." Then, for a third time in closing argument, the prosecutor told the jury it should convict Cortez of murder under an aiding and abetting theory because the murder was "the natural and probable consequences." Relentlessly pressing the natural and probable consequences theory, the prosecutor urged the jury to convict Cortez of first degree murder because the "[c]rime of murder was a natural and probable consequence of the target crime." And finally, the prosecutor finished his closing argument by telling the jury they must apply the natural and probable consequences doctrine, stating, "[W]hen you tell someone to go shoot someone, is it natural that death may result? And that is really the standard that you have to use." (Italics added.)
Asserting the error is harmless, the Department overlooks the prosecutor's closing argument and instead focuses on the jury instruction for first degree murder, which states:
"The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused death." (Boldface and capitalization omitted.)

The Department contends that under this instruction, the jury could not convict Cortez of first degree murder without finding that Cortez himself, a "defendant," had the requisite mental state, and therefore the Chiu error is harmless.
We disagree with the Department's argument because it is based on an interpretation of the first degree murder instruction that is too narrow and out of context. Fausto and Cortez were tried together. The jury could have reasonably understood the term "defendant" in this instruction to refer to the defendant shooter (Fausto), particularly in light of (1) other instructions permitting a finding of murder culpability under the natural and probable consequences doctrine; and (2) the prosecutor's closing argument, quoted below, where he told the jury it was the shooter's (Fausto's) mental state that was determinative:
"And if you believe that there was an intent to kill, there was a thought about it, willfully premeditated prior to the shooting of Arturo Manzo by defendant Fausto, it is first-degree murder. If you don't believe that it was willful premeditation and deliberated, but you still believe it was an intentional act by defendant Fausto to shoot Arturo Manzo and he died as a result of that, that is second-degree murder." (Italics added.)

At the very least, without a clarification that the natural and probable consequences doctrine was limited to second degree murder, the instructions as a whole effectively permitted the jury to convict Cortez of first degree premeditated murder as either an aider and abettor, or on a conspiracy theory, that was legally invalid under Chiu.
The Department also contends the error was harmless, asserting the evidence "leave[s] no room for doubt that [Cortez] directly aided and abetted [the] premeditated murder." This argument is untenable, and it begs the fundamental question of why the prosecutor would have so persistently argued the natural and probable consequences theory if the evidence of direct aider and abettor liability was actually overwhelming as the Department now asserts. The issue is not whether substantial evidence supports a first degree murder conviction on a theory of direct aiding and abetting. The issue is whether the record shows beyond a reasonable doubt that the jury relied on a legally valid theory, and the record here falls well short. While the evidence is sufficient to support a finding that Cortez directly aided and abetted an intentional, premeditated murder, there is also ample evidence from which the jury could have concluded his intent was only to encourage and assist in the assault of a rival gang member, an act that ultimately led to Manzo's death. For example, Pacheco testified he was surprised when he heard gunshots and was not expecting anyone to be killed. Moreover, there was no evidence that Cortez told anyone to kill an Otay gang member.
Because Fausto's use of a gun to assault an Otay gang member would likely result in death—under the erroneous natural and probable consequences instructions, the jury did not need to resolve whether Cortez himself had the requisite mental state for premediated murder. Nothing in the record indicates the jury resolved that issue under some other finding, nor does the record demonstrate beyond a reasonable doubt the jury based its verdict on the legally valid direct aiding and abetting theory.
Whatever the possible grounds for the jury's first degree murder verdict against Cortez might have been in theory, in light of the jury instructions and the prosecutor's closing arguments, in reality the jury almost certainly convicted Cortez of first degree murder under the natural and probable consequences doctrine—which is legally impermissible under Chiu, supra, 59 Cal.4th at page 159.
DISPOSITION
The petition is granted. The judgment is vacated to the extent Cortez was convicted of first degree murder, count 2. In accordance with Chiu, this matter is remanded to the trial court with directions to allow the People to accept a reduction of the conviction on count 2 to second degree murder, or to elect to retry Cortez for first degree murder under a theory or theories other than natural and probable consequences. If the People accept the reduction of the conviction on count 2 to second degree murder, then the true findings on the enhancements shall be reinstated, and the trial court shall resentence Cortez accordingly. (See Lopez, supra, 246 Cal.App.4th at pp. 361-362.)



NARES, J.

WE CONCUR:




McCONNELL, P. J.




AARON, J.