Defendant denied right to jury trial when he was resentenced as an aider and abettor based on facts that conflicted with the jury’s findings. In 1987 two men entered a fast-food restaurant: one sat at a table in the dining room, arguably as a lookout, while the other went behind the counter and shot an employee during an attempted robbery. Taylor’s palm-print was found on the getaway car. At his trial for attempted robbery and murder, the prosecutor argued that the jury could convict Taylor under a theory of felony murder. The prosecutor argued that the man who shot the victim was guilty as a principal and that the lookout was guilty as an aider and abettor; he acknowledged that the jury could only find a special circumstance true if it found that Taylor was the actual shooter. Taylor was convicted and the jury found the special circumstance true. In 1996, Taylor told authorities that he had been at the restaurant on the day of the crime and that his cousin was the actual shooter. The authorities believed Taylor and investigated and prosecuted his cousin. Thereafter, Taylor filed a state habeas petition seeking a new trial because he was not the shooter. Instead of ordering a new the trial, the trial court resentenced Taylor as an aider and abettor. The state courts did not address his claim that he could not be resentenced as an aider and abettor because the jury had never found that he was an aider and abettor. He filed a federal habeas petition, which the district court denied. He appealed. Held: Reversed. The Sixth Amendment and due process clause “entitle a criminal defendant to a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” (Apprendi v. New Jersey (2000) 530 U.S. 466, 477.) In this case, the prosecutor’s two alternative theories of guilt were mutually inconsistent. The jury found that Taylor was the actual shooter and this finding shows that it did not rely on aiding and abetting. The trial court violated Taylor’s Sixth Amendment rights when it resentenced him based on facts that the jury did not find. The error is not amenable to harmless error review and Taylor is entitled to a new trial.