Smith v. Lopez, No. 12-55860 (9-23-13)(Thomas with Hurwitz and Beistline, Chief DJ AK).

The 9th affirmed the granting of habeas relief. In a murder prosecution, the prosecutor presented the case as if the petitioner was the actual murderer of his wife. The case was defended on that basis, with the petitioner arguing that he was physically incapable of committing the bludgeoning death, and that his employee had motive and opportunity. The prosecutor asked for and got an aiding and abetting instruction at the last moment, and argued that someone else could have done it. The 9th found that the petitioner did not have notice of the aiding and abetting charge, and his right to notice was violated.