Postconviction determination that defendant was not the shooter who killed a victim during an attempted robbery did not mandate reversal of his felony murder conviction. In state court, a jury convicted Taylor of first degree felony murder and other offenses. The jury also found true allegations that the murder was committed while Taylor engaged in an attempted robbery and that Taylor personally was armed and used a firearm. These allegations required the jury to find that Taylor was the shooter and not the lookout during the crimes. He received an LWOP sentence. Seven years after his conviction, he disclosed that his cousin was the shooter and the State supported an effort to reduce Taylor’s sentence. Ultimately, the trial court vacated the special circumstance and firearm-use findings based on the new evidence that Taylor was not shooter. He was resentenced to 25 years to life for the felony murder as an aider and abettor. Taylor sought further relief, arguing that his resentencing violated due process and the Sixth Amendment because the jury had found that he was not an aider and bettor given that it found he was the shooter. The state court denied relief and Taylor pursued the claim in a federal habeas petition. The district court denied the petition. The Ninth Circuit considered the case en banc. Held: Denial of habeas affirmed. Taylor’s felony murder conviction rested on the jury’s findings that he had the specific intent to commit robbery and that a person was killed during the attempted robbery. The jury was instructed on aider and abettor liability for felony murder, as well as the theory Taylor was the shooter, and did not need to unanimously agree on a particular theory. Even though the jury incorrectly determined Taylor was the shooter when considering the special circumstance and fire-arm use allegations, there was no reason to assume that the jury rejected the lookout theory as invalid in convicting Taylor of felony murder, and Taylor never established his innocence as to the lookout theory. As a result, the sentencing judge did not violate Taylor’s constitutional rights.

The full opinion is available on the court’s website here: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/21/11-55247.pdf