Marvin Smith v. Raul Lopez, 2013 WL 5303247

Smith was charged with first-degree murder in California; the information allowed liability as a principal or aider-and-abettor.
The prosecution framed Smith as the sole perpetrator in opening statements and case-in-chief, with DNA evidence tying him to the scene and weapon.
A key defense theme was that Smith could not have killed Minnie Smith, supported by alibi and medical evidence of incapacity.
The trial court, over defense objection, granted an aiding-and-abetting instruction after the prosecution requested it at the jury instructions conference, near closing arguments.
Defense had little time to respond before rebuttal; closing arguments followed, and the jury convicted Smith on a general verdict of first-degree murder.
On direct appeal, the California Court of Appeal reversed; the California Supreme Court denied review; Smith then filed a federal habeas petition, which the district court granted; the Ninth Circuit affirmed the grant.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the aiding-and-abetting instruction violate notices rights?	Smith contends he was ambushed; notice insufficient.	People maintains notice was adequate from charging document and proceedings.	Yes; notice violation occurred.
Was the instructional error harmless beyond a reasonable doubt?	Close evidentiary balance means error could influence the verdict.	Prosecutor's theory remained within-supported theories and defense was able to counter.	Not harmless; relief affirmed.

Sheppard v. Rees, 909 F.2d 1234 (9th Cir. 1990) (ambush concerns when new theory is raised late)
Murtishaw v. Woodford, 244 F.3d 926 (9th Cir. 2001) (notice from opening or trial evidence)
Morrison v. Estelle, 981 F.2d 425 (9th Cir. 1992) (notice of felony-murder theory from trial evidence)
Russell v. United States, 369 U.S. 749 (1962) (requirement that charging document apprises defendant of charges)
Cole v. Arkansas, 333 U.S. 196 (1948) (right to notice of the nature of the accusation)
Guiton v. Griffin, 847 P.2d 45 (Cal. 1993) (prejudice standard in Guiton for ambiguous theories)
Griffin v. United States, 502 U.S. 46 (1991) (two theories of guilt; need for notice of charged theories)
Gautt v. Lewis, 489 F.3d 993 (9th Cir. 2007) (distinction between notice-based review and structural error)
Brecht v. Abrahamson, 507 U.S. 619 (1993) (harmless-error standard in constitutional errors)
Williams v. Taylor, 529 U.S. 362 (2000) (precludes reliance on state-theory prejudice where applicable)