ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
PHILLIP S. GUTIERREZ, District Judge.
Pursuant to 28 U.S.C. section 636, the Court has read and considered the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court also has read and considered Smith v. Lopez, ___ F.3d ___, 2013 WL 5303247 (9th Cir. Sept. 23, 2013) ("Smith"), a case decided after the Magistrate Judge issued the Report and Recommendation. As discussed below, the Smith decision does not control the outcome of the present case.
In Smith, the United States Court of Appeals for the Ninth Circuit upheld a grant of habeas relief on a claim that the petitioner had lacked adequate notice of the prosecution's theory that the petitioner aided and abetted the murder of his wife. The Information in Smith had charged the petitioner with first degree murder without mentioning aiding and abetting. Smith, 2013 WL 5303247, at *1-2. At trial, the prosecution introduced evidence to show that the petitioner bludgeoned his wife to death with a fireplace log roller and staged the crime scene to look like a burglary. Id. at *2. The defense responded that the petitioner, who was 70 years old and had undergone major shoulder surgery a few weeks before the murder, was physically incapable of wielding the heavy log roller. Id . The defense also presented evidence of an alibi. Id . The defense further insinuated that one of the petitioner's employees, a man who knew details of the crime scene not reported by the media, had bludgeoned the petitioner's wife to death. Id. at *2-3. After the defense rested, the trial court held a conference to discuss jury instructions. Id. at *3. At that conference, the court acceded to the prosecution's request to give the jury an instruction on aiding and abetting. Id. at *3.
The Smith Court stated that the charging document "was initially sufficient" to put the petitioner on notice that he could be convicted either as a principal or as an aider and abettor. The Court held, however, that the prosecution's conduct throughout the pretrial and trial proceedings affirmatively led the defense reasonably to believe that any potential aiding and abetting theory was "off the table." Id. at *7-8. The Smith Court deemed the case indistinguishable from Sheppard v. Rees , 909 F.2d 1234, 1236 n.2 (9th Cir. 1990), which, though a "narrow ruling" in a pre-AEDPA case, assertedly remained "instructive." Smith, 2013 WL 530237, at *8. The Smith Court noted that the prosecution had presented no evidence to support an aiding and abetting theory, a circumstance which distinguished earlier cases that had discerned adequate notice from the presentation of evidence. Id. at *9 (citation omitted). As the Smith Court emphasized, the prosecution had argued that the absence at the crime scene of DNA from anyone other than the petitioner, the victim, and a crime lab technician "meant that no unidentified perpetrator could have killed [the victim]." Id. at *8. Perhaps most significantly, the Smith Court reasoned that the petitioner's chosen defenses, alibi and physical inability, "would have been meaningless" against an aiding and abetting theory. Id. at *9.
The Smith decision does not dictate a result different from the result recommended by the Magistrate Judge. As discussed in the Report and Recommendation (and unlike the circumstance in Smith), there was evidence in the present case, both at the preliminary hearing and at trial, suggesting that Petitioner was the driver rather than the shooter, and hence could be found guilty based on an aiding and abetting theory. Furthermore, Petitioner's mistaken identification defense posited that Petitioner was not present in the car at all at the time of the shooting. Unlike the circumstances in Smith, Petitioner's chosen defense applied just as forcefully against an aiding and abetting theory of culpability as against a theory that Petitioner was the principal. Thus, legally and factually, the present case is materially distinguishable from the Smith decision.
The Court accepts and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on counsel for ...