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True Finding on Gang-Killing Special Circumstance and Chiu Error / Harmless Error Review

Case Name: In re Lopez (2023) 14 Cal.5th 562
Case #: S258912
Last Updated: April 3, 2023

(1) Does a true finding on a gang-killing special circumstance (Pen. Code, §190.2, subd. (a)(22)) render Chiu error (People v. Chiu (2014) 59 Cal.4th 155) harmless? (2) To what extent or in what manner, if any, may a reviewing court consider the evidence in favor of a legally valid theory in assessing whether it is clear beyond a reasonable doubt that the jury based its verdict on the valid theory, when the record contains indications that the jury considered the invalid theory? (See People v. Aledamat (2019) 8 Cal.5th 1.)

On 12/22/2021, the court directed the parties to file supplemental briefs addressing the significance, if any, of Assembly Bill No. 333 (Stats. 2021, Ch. 699) to the issues presented in this case.


In 2005, Lopez was tried along with several codefendants for the murder of Gomez. A jury convicted Lopez and three of his codefendants of Gomez’s first degree premeditated murder and found true the gang-murder special circumstance (§ 190.2, subd. (a)(22)) and the criminal street gang sentencing enhancement (§ 186.22, subd. (b)(1)). Later, Lopez filed a petition for writ of habeas corpus challenging his conviction based on People v. Chiu (2014) 59 Cal.4th 155. The trial court agreed with Lopez and granted relief. The prosecution appealed, and the Court of Appeal reversed, holding that the Chiu error here was harmless beyond a reasonable doubt based on the gang-murder special circumstance, which required the jury to find that an aider and abettor acted with intent to kill. The California Supreme Court granted review to discuss the import of People v. Aledamat (2019) 8 Cal.5th 1 on this record. The court concluded:

the gang-murder special circumstance here does not necessarily render the Chiu error harmless beyond a reasonable doubt. However, a reviewing court may hold the error harmless where it would be impossible, based on the evidence, for a jury to make the findings reflected in its verdict without also making the findings that would support a valid theory of liability. (Aledamat, supra, 8 Cal.5th at p. 15.) Indications in the record that the jury may have actually relied on an invalid theory, such as a prosecutor’s closing argument or a jury note, do not preclude a finding of harmlessness if this standard is satisfied.

. . . .

The Court of Appeal was . . . incorrect to hold that the gang-murder special circumstance, standing alone, showed that the Chiu error was harmless beyond a reasonable doubt. And, while “overwhelming” evidence may demonstrate harmlessness, a court’s analysis of whether the evidence is “overwhelming” in this context is not as subjective or free-ranging as that term might imply. Instead, the analysis requires a court to rigorously review the evidence to determine whether any rational juror who found the defendant guilty based on an invalid theory, and made the factual findings reflected in the jury’s verdict, would necessarily have found the defendant guilty based on a valid theory as well. (Aledamat, supra, 8 Cal.5th at p. 15.) Based on its short discussion, the Court of Appeal does not appear to have fully appreciated the proper standard for harmlessness in this context. We therefore reverse the judgment of the Court of Appeal and remand for reconsideration in light of the standards we describe in this opinion.

This case was decided on 4/3/2023. Chief Justice Guerrero authored the opinion of the court, in which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and Evans concurred.

Review on this issue was also granted with briefing deferred in:

  • People v. Corder (B261370) [nonpub. opn.], review granted 7/20/2022 (S274705)
  • People v. Glukhoy (2022) 77 Cal.App.5th 576, review granted 7/27/2022 (S274792)
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