In In re Lopez, the Supreme Court today holds the Court of Appeal used an improper analysis when it found that instructing a jury on a legally invalid murder theory was harmless beyond a reasonable doubt. Although the Supreme Court could do the evaluation itself now, it “decline[s] to do so given the size and complexity of the underlying trial record,” and it sends the case back to the appellate court for a do-over under what it calls an “exacting” standard that “requires much of a reviewing court.”

The court’s unanimous opinion by Chief Justice Patricia Guerrero concludes a jury’s gang-murder special circumstance finding “does not necessarily render the [instructional] error harmless beyond a reasonable doubt.” On the other hand, the court says, “[i]ndications 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”; a lack of prejudice is still possible “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.”

The opinion tells the Court of Appeal on remand “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.”

The Supreme Court’s opting not to decide whether the error was harmless might be a function of more than just a large, complex record, the court’s stated reason for letting the Court of Appeal handle that task instead. Today’s opinion applies a test the court established in People v. Aledamat (2019) 8 Cal.5th 1 (see here). In Aledamat, although the justices agreed on what the standard is, they split on applying the standard to the case before them, finding harmless error by a bare 4-3 vote. It’s possible that the justices were similarly divided on whether the error in today’s case was prejudicial and preferred to issue a unanimous decision on just the aspects of the case about which there is consensus. (Related: Justice Guerrero says Supreme Court collegiality sometimes leads to narrow opinions.)

The court reverses the First District, Division One, Court of Appeal’s unpublished opinion. It disapproves the First District, Division Four, decision in People v. Thompkins (2020) 50 Cal.App.5th 365. The court denied review in Thompkins. [See: Disapprovals of review-denied opinions show the Supreme Court is not an error-correction court.]