In re Loza

In 2004, Cesar Loza handed a gun to a fellow gang member, who shot and killed a rival gang member. A jury convicted Loza of first degree premeditated murder after being instructed on two derivative liability theories: direct aider and abettor liability, and the natural and probable consequences theory. In 2014, our Supreme Court held that the natural and probable consequences theory can no longer support a premeditated murder conviction. ( People v. Chiu (2014) 59 Cal.4th 155 , 172 Cal.Rptr.3d 438 , 325 P.3d 972 ( Chiu ).)

In this habeas corpus proceeding, we cannot conclude beyond a reasonable doubt that the jury relied on the legally valid direct aider and abettor liability theory; therefore, we must vacate Loza's first *519 degree murder conviction. On remand, the prosecution may retry Loza for first degree murder (with proper jury instructions), or accept a second degree murder conviction. We also order the trial court to stay Loza's sentence on a substantive gang offense and to conduct a hearing, allowing the parties to make a record for any future youth related parole reviews. ( People v. Franklin (2016) 63 Cal.4th 261 , 269, 202 Cal.Rptr.3d 496 , 370 P.3d 1053 ( Franklin…