Pulido v. Chrones

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL ROBERT PULIDO,  No. 05-15916

Petitioner-Appellee,

v.  D.C. No.

CV-99-04933-CW

CHRIS CHRONES, Warden,

Respondent-Appellant.



MICHAEL ROBERT PULIDO,  No. 05-16308

Petitioner-Appellant,

v.  D.C. No.

CV-99-04933-CW

CHRIS CHRONES, Warden,

OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the Northern District of California

Claudia Wilken, District Judge, Presiding

Argued and Submitted

June 13, 2006

Submission withdrawn August 1, 2006

Resubmitted May 30, 2007

San Francisco, California

Filed May 30, 2007

Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain, and

Sidney R. Thomas, Circuit Judges.

Per Curiam Opinion;

Concurrence by Judge O’Scannlain;

Concurrence by Judge Thomas

6505

6508 PULIDO v. CHRONES

COUNSEL

Jeremy Friedlander, Deputy Attorney General, San Francisco,

California, argued the cause for the respondent-appellant. Bill

Lockyer, Attorney General of the State of California; Robert

R. Anderson, Chief Assistant Attorney General; Gerald A.

Engler, Senior Assistant Attorney General; and Peggy S. Ruf-

fra, Supervising Deputy Attorney General were on the briefs.

J. Bradley O’Connell, San Francisco, California, argued the

cause for the petitioner-appellee and was on the brief.

PULIDO v. CHRONES 6509

OPINION

PER CURIAM:

We must consider whether a state court erred in affirming

a conviction for murder.

I

Michael Pulido was tried and convicted for his role in the

robbery of a Shell gasoline station in San Mateo, California

and the murder of an employee. He claims that the California

Supreme Court wrongly affirmed his conviction.

A

Because Pulido’s claims are fact-intensive, we consider the

facts—as presented by the California Supreme Court in its

opinion affirming Pulido’s conviction—in some detail:

Sometime between 1 a.m. and 5:30 a.m. on May

24, 1992, Ramon Flores, the cashier at a Shell gas

station in San Mateo, was shot in the head with a sin-

gle .45-caliber bullet, killing him within seconds. A

neighbor heard a loud bang coming from the direc-

tion of the gas station around 3:45 a.m., then a voice

yelling; he could not distinguish words, but told a

police detective it sounded like the person was

addressing someone else. A cash register taken from

the store was found the next morning in some road-

side bushes elsewhere in San Mateo. Defendant’s

fingerprints were on the cash register, as well as on

an unopened can of Coke found on the store counter.

No fingerprints of Michael Aragon, who defendant

testified committed the killing, were identified on

either the can or the register.

Arrested on an unrelated auto theft charge, defen-

dant volunteered that he had information about the

6510 PULIDO v. CHRONES

Shell station robbery. He led police to a location

where they found discarded, unused .45-caliber car-

tridges, which bore ejection markings resembling

those on a cartridge found on the gas station floor.

Defendant made a series of inconsistent exculpatory

statements to police, blaming the robbery and killing

successively on a man named Carlos Vasquez, on a

relative of defendant’s named Eduardo Alarcon and,

finally, on an unidentified Tongan man. In a tele-

phone conversation from jail with his uncle, Michael

Aragon, and Aragon’s cohabitant, Laura Moore,

however, defendant said he was alone during the

robbery.

At the time of the killing, defendant was staying

with Aragon, Moore and their children in their San

Mateo home. While he was staying with them, Ara-

gon, two of the children, and a neighbor saw defen-

dant with a pistol, which the neighbor identified as

a .45-caliber Colt. During that time, defendant twice

observed that the nearby Shell station would be easy

to rob because the attendant was always asleep. Ara-

gon told defendant to get rid of the gun because he,

Aragon, was on probation. He had been convicted in

1989 of burglary, possession of cocaine and contrib-

uting to the delinquency of a minor.

Aragon and Moore testified that defendant was at

home when they went to bed around midnight on

May 23, but was gone when they got up at around

3 a.m. to care for their baby. The next morning, Sun-

day, May 24, they awoke to find defendant asleep in

the living room with his clothes and shoes on. He

showed Aragon his wallet and said, “Look unc,

almost all ones.” Later that day, Moore discovered

defendant was carrying a handgun and insisted he

and Aragon dispose of it. At her direction, defendant

took the gun apart; Moore then boiled the pieces in

PULIDO v. CHRONES 6511

soapy water and put most of them in a bag, which

defendant and Aragon threw away near Candlestick

Park. Two pieces that Moore had retained to prevent

reassembly were later given to police and identified

as fitting a .45-caliber Colt.

After seeing a newspaper article about the killing,

Aragon asked defendant if he committed it. Defen-

dant denied he had, but a few days later, when Ara-

gon asked again, defendant admitted the crime. He

told Aragon he bought a Coke, then shot Flores in

the face, took the register and later threw it in some

bushes. In a letter from jail, however, defendant

wrote to Moore, “If Michael is reading this, tell him

I didn’t kill that guy, I was just messing with him.”

Defendant testified, blaming Aragon for the kill-

ing. Aragon, he stated, had seen where defendant

kept the pistol. On the night of May 23, defendant

and Aragon went out in Aragon’s car; defendant

thought the pistol was on the shelf where he usually

kept it. They went to Hunters Point, where Aragon

bought and smoked some cocaine. They left, but

returned later for Aragon to buy and smoke more

cocaine. Eventually the two arrived at the Shell sta-

tion in San Mateo. Aragon went inside, defendant

thought for matches or cigarettes. Defendant waited

outside. He heard a gunshot and ran into the store.

Aragon was holding defendant’s gun. Flores was

lying on the floor, bleeding from a large bullet

wound in his face. Defendant yelled at his uncle, ran

out of the store and got in the passenger seat of the

car. A few seconds later, Aragon came out, holding

the cash register in his left hand and the gun in his

right hand. He threw the register on defendant’s lap

and drove away.

As they were driving away from the scene, Ara-

gon told defendant to open the register. When defen-

6512 PULIDO v. CHRONES

dant did not comply, Aragon pointed the gun at him

and insisted. Defendant got a screwdriver from the

back of the car and pried the register open. At Ara-

gon’s command defendant gave him the money and

dumped the register in some bushes by the side of

the road. Defendant denied touching a Coke can in

the store that night; he suggested he might have

touched the can on some earlier occasion when he

bought a drink at the store.

The defense also presented evidence casting doubt

on Aragon’s credibility. While admitting a prior drug

possession conviction, Aragon denied he was still

using cocaine at the time of the killing. However,

Aragon’s sister (defendant’s aunt) testified he came

to her house on Sunday, May 24 or Monday, May

25, at which time he was “on something,” but did not

smell of alcohol. Her son described Aragon as acting

paranoid and smelling of crack cocaine. The sister

opined Aragon was a liar and a thief. A police detec-

tive testified that, when first interviewed, Aragon

said he had gotten up at 12:15 a.m. Sunday to take

care of the baby. When Aragon and Moore were

later interviewed together at the police station, both

said it was around 3 a.m. During a discussion about

the time period in which the killing occurred, Ara-

gon said to Moore, “That’s when I was with you,

remember?”

People v. Pulido, 936 P.2d 1235, 1237-38 (Cal. 1997).

B

On July 2, 1993, a jury convicted Pulido of first degree

murder, robbery, receiving stolen property, and auto theft.

The jury also returned a special circumstance finding of rob-

bery felony-murder, under Cal. Penal Code § 190.2(a)(17)(I).

The jurors deadlocked on allegations that Pulido personally

PULIDO v. CHRONES 6513

used a firearm and personally inflicted great bodily injury as

defined by Cal. Pen. Code §§ 12022.5(a), 1203.075. Thus, we

will assume for the purposes of our analysis that Pulido did

not personally murder Flores.

The trial court sentenced Pulido to life without the possibil-

ity of parole for murder with special circumstances. See Cal.

Pen. Code § 190.5(b). The California Court of Appeal

affirmed the murder conviction, People v. Pulido, 52 Cal.

Rptr. 2d 373 (Ct. App. 1996), as did the California Supreme

Court, Pulido, 936 P.2d 1235.

After filing various habeas petitions in the California supe-

rior court and California Court of Appeal, Pulido filed a pro

se habeas petition with the California Supreme Court, which

that court summarily denied on July 28, 1999. Pulido then

filed the present petition in the federal district court on

November 16, 1999. The district court granted Pulido’s peti-

tion on the grounds of prejudicial instructional error. The dis-

trict court rejected Pulido’s remaining claims, but granted a

partial certificate of appealability (“COA”) on four of these.

The State of California timely appealed the grant of the

petition, and Pulido timely cross-appealed the denial of his

petition on the four remaining grounds.1

II

Pulido asserts that the trial court’s erroneous jury instruc-

tions constituted prejudicial constitutional error and that the

state court decision affirming his conviction was both con-

trary to and an unreasonable application of clearly established

federal law.2 More specifically, Pulido claims that because of

1

In a concurrently filed memorandum disposition, we affirm the district

court’s denial of Pulido’s petition as to these issues. See Pulido v.

Chrones, Nos. 05-15916 & 05-16308 (filed May 30, 2007).”

2

Because Pulido filed his habeas petition after April 24, 1996, the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) gov-

6514 PULIDO v. CHRONES

multiple instructional errors, the jury could have convicted

him of felony-murder under an invalid legal theory: felony-

murder solely on the basis of post-murder involvement in the

robbery, for there was no contemporaneity finding linking

Pulido to pre-murder involvement in the robbery.3 The State

erns this case. The district court’s decision to grant or to deny a habeas

petition is reviewed de novo. Benn v. Lambert, 283 F.3d 1040, 1051 (9th

Cir. 2002).

AEDPA limits habeas relief to situations in which the state court’s deci-

sion was “contrary to, or involved an unreasonable application of, clearly

established federal law as determined by the Supreme Court.” 28 U.S.C.

§ 2254(d)(1); see Williams v. Taylor, 529 U.S. 362, 407-09 (2000). The

burden of proof rests with the petitioner, see Woodford v. Visciotti, 537

U.S. 19, 24 (2002) (per curiam), and for each claim, we analyze the last-

reasoned state court opinion, see Ylst v. Nunnemaker, 501 U.S. 797, 803

(1991).

A state court decision is “contrary to” clearly established federal law if

it arrives at a conclusion opposite to that reached by the Supreme Court

on a question of law. See Williams, 529 U.S. at 405-06. The state court

would also render a decision contrary to “clearly established Federal law”

if it “confront[ed] a set of facts that are materially indistinguishable from

a decision of [the Supreme] Court and nevertheless arrive[d] at a result

different from [its] precedent.” Id. at 406.

A state court’s decision involves an “unreasonable application” of fed-

eral law if it (1) “correctly identifies the governing rule but then applies

it to a new set of facts in a way that is objectively unreasonable,” or (2)

“extends or fails to extend a clearly established legal principle to a new

context in a way that is objectively unreasonable.” Hernandez v. Small,

282 F.3d 1132, 1142 (9th Cir. 2002). To warrant habeas relief, “[t]he state

court’s application of clearly established law must be objectively unrea-

sonable,” not merely incorrect. Lockyer v. Andrade, 538 U.S. 63, 75-76

(2003) (citing Williams, 529 U.S. at 409, 411). Even the federal court’s

“firm conviction” that the decision was “erroneous” is an insufficient basis

on which to grant relief. Id. at 75 (citation omitted).

3

In evaluating an allegedly erroneous jury instruction, we first deter-

mine whether the error, if any, amounted to constitutional error. See Mor-

ris v. Woodford, 273 F.3d 826, 833 (9th Cir. 2001). If there is

constitutional error, we consider whether the error was harmless; that is,

whether the error had a “ ‘substantial and injurious effect or influence in

determining the jury’s verdict.’ ” Id. (quoting Brecht v. Abrahamson, 507

U.S. 619, 637 (1993)).

PULIDO v. CHRONES 6515

responds that the California courts reasonably affirmed the

verdict because the jury’s special circumstance finding incor-

porated a contemporaneity finding.

A

The jury instructions in this case covered murder (Califor-

nia Jury Instructions, Criminal (“CALJIC”) 8.21), aiding and

abetting, (CALJIC 8.27 and CALJIC 9.40.1), robbery-murder

special circumstances (CALJIC 8.80.1, CALJIC 8.81.17,

CALJIC 8.83, and CALJIC 8.83.1), robbery (CALJIC 9.40),

and felony-murder (CALJIC 9.44, CALJIC 3.00, and CALJIC

3.01). The State concedes that two of these instructions were

defective.

[1] First, the felony-murder instructions were defective

because, in Pulido, the California Supreme Court held that

aiding and abetting a robbery after the killing of a victim does

not constitute felony-murder under California law. See 936

P.2d at 1238-43; id. at 1243 (refusing to extend the “felony-

murder rule to include aiders and abettors or conspirators who

join the felonious enterprise only after the murder has been

completed.”). Because the felony-murder instructions pre-

sented to the jury allowed conviction on the basis of after-the-

murder robbery involvement, the felony-murder instructions

are invalid and are insufficient to support the conviction,

which requires a finding of contemporaneity under California

criminal law. See id. at 1243-44.

[2] Second, the State concedes that one of the murder-

robbery special circumstance instructions was invalid. The

district court discovered a typographic error: the jury instruc-

tions substituted “or” for “and” in CALJIC 8.81.17, errone-

ously enlarging the scope of activity that would qualify as

murder-robbery under the special circumstance.4

4

CALJIC 8.81.17, as delivered to the jury, reads:

6516 PULIDO v. CHRONES

B

The California Supreme Court concluded that any instruc-

tional error was harmless because the special circumstance

verdict required the jury to make the necessary contemporane-

ity determination:

[D]efendant cannot demonstrate prejudice from

the asserted instructional error: “[T]he factual ques-

tion posed by the omitted instruction was necessarily

resolved adversely to defendant under other, prop-

erly given instructions.” (People v. Sedeno, [518

P.2d 913, 924 (Cal. 1974)]) Specifically, the jury

was instructed that the robbery-murder special-

circumstance allegation could not be found true

unless defendant was engaged in the robbery at the

time of the killing. In a modified form of No. 8.80.1

. . . the jury was directed to determine whether or not

“the murder was committed while the defendant was

engaged or was an accomplice in” robbery,

attempted robbery or the immediate flight from a

robbery. (Italics added.) In the special circumstance

verdict, consistent with this instruction, the jury

To find that the special circumstance, referred to in these instruc-

tions as murder in the commission of robbery is true, it must be

proved:

1. The murder was committed while the defendant was

engaged in the commission or attempted commission or a

robbery; or

2. The murder was committed in order to carry out or

advance the commission of the crime of robbery or to facili-

tate the escape therefrom or to avoid detection. In other

words, the special circumstance referred to in these instruc-

tions is not established if the robbery was merely incidental

to the commission of the murder.

(emphasis added to show typographical error; the “or” should read “and”).

PULIDO v. CHRONES 6517

found “that the said defendant, Michael Robert

Pulido, engaged in or was an accomplice in the com-

mission of or attempted commission of robbery dur-

ing the commission of crime charged in count 1

[murder].” (italics added.) By its special circum-

stance verdict the jury thus found—explicitly, unani-

mously and necessarily—that defendant’s

involvement in the robbery, whether as direct perpe-

trator or as aider and abettor, commenced before or

during the killing of Flores.

Defendant argues the special circumstance finding

is not dispositive because, under another portion of

CALJIC No. 8.80.1, the jury could have based its

finding on defendant’s being a “major participant” in

the robbery and acting with “reckless indifference to

human life.” Such a finding, defendant asserts, could

in turn have rested on defendant’s assisting Aragon

after the killing instead of seeking help for Flores.

We disagree. Postkilling assistance to Aragon, by

itself, could not have been the basis for the jury’s

explicit finding defendant “engaged in or was an

accomplice in the commission of or attempted com-

mission of robbery during the commission of [mur-

der],” nor could it have satisfied the instructional

requirement that “the murder was committed while

the defendant was engaged or was an accomplice in”

robbery. (Italics added.) The special circumstance

finding thus demonstrates the jury did not accept the

theory defendant joined the robbery only after Flores

was killed. Any error in the failure specially to

instruct on this issue was harmless.

For the same reason, no prejudice could have

arisen from the instructions actually given on dura-

tion of robbery and liability of accomplices for first

degree felony murder. Defendant contends these

instructions permitted the jury to convict him of

6518 PULIDO v. CHRONES

murder on the legally inadequate ground that he

assisted Aragon in taking away the robbery loot. An

instructional error presenting the jury with a legally

invalid theory of guilt does not require reversal,

however, if other parts of the verdict demonstrate

that the jury necessarily found the defendant guilty

on a proper theory. (People v. Guiton, [847 P.2d 45,

53 (Cal. 1997)].) As shown above, the jury’s true

finding on the robbery-murder special circumstance

so demonstrates.

Pulido, 936 P.2d at 1243-44 (emphasis in state court opinion).

As the foregoing discussion demonstrates, however, and as

the State now concedes, the special circumstance instruction

erroneously used the word “or” rather than “and” in joining

the contemporaneity prong to the “committed in order to carry

out or advance the commission of the crime” prong. Paradoxi-

cal though it may seem, the erroneous explanation in CALJIC

8.81.17 permitted the jury to find the special circumstance

that the murder was committed “while the defendant was

engaged in or was an accomplice in” robbery without in fact

finding that the acts were contemporaneous. This is so

because the jury was instructed that if it merely found that the

murder was committed “in order to carry out or advance” the

robbery, it should find that the special circumstance was satis-

fied. Nowhere was this erroneous description of the require-

ments for finding the special circumstance corrected. Thus,

the California Supreme Court’s conclusion that the jury “nec-

essarily” found the defendant guilty on a proper theory does

not follow.

C

[3] Pulido urges, and the district court agreed, that the Cali-

fornia Supreme Court decision was contrary to federal law

because it improperly applied harmless error analysis. In par-

ticular, Pulido contends that under our court’s recent decision

PULIDO v. CHRONES 6519

in Lara v. Ryan, 455 F.3d 1080 (9th Cir. 2006) (decided sub-

sequent to the district court proceedings in this case), the

instructional error was structural and therefore not subject to

harmless error review. In Lara, the defendant was convicted

of attempted murder after the jury had been instructed that it

could convict him under a theory of express malice or an

implied malice theory, the second of which was legally

improper. 455 F.3d at 1082. Relying primarily on the

Supreme Court’s decision in Sandstrom v. Montana, 442 U.S.

510 (1979), and this court’s decision in Keating v. Hood, 191

F.3d 1053 (9th Cir. 1999), we held that such error was struc-

tural and that “where a reviewing court cannot determine with

absolute certainty whether a defendant was convicted under

an erroneous theory” reversal is required. Lara, 455 F.3d at

1086. We concluded that because the jury had made a specific

finding that Lara had attempted to murder willfully, deliber-

ately, and with premeditation it was absolutely certain that the

jury had not convicted on the improper implied-malice theory.

[4] Here, the jury instructions leave open the possibility

that the jury convicted Pulido on a legally impermissible the-

ory, namely, that the defendant joined the robbery only after

Flores was killed. The typographical error in the contempora-

neity instruction relied upon by the California Supreme Court

introduces doubt into any inference to be drawn from the

jury’s finding as to the special circumstance. Because, unlike

in Lara, we cannot be “absolutely certain” that the jury found

that Pulido’s crime of robbery was committed contemporane-

ously with the murder, the verdict must be reversed.

D

Because Pulido’s conviction must be reversed under Lara’s

absolute certainty standard, we need not consider his alterna-

tive claims for relief.

III

For the foregoing reasons, the decision of the district court

is AFFIRMED.

6520 PULIDO v. CHRONES

O’SCANNLAIN, Circuit Judge, concurring specially:

I agree with the majority that our recent decision in Lara

v. Ryan, 455 F.3d 1080 (9th Cir. 2006), compels us to affirm

the district court’s grant of habeas relief. I write separately,

however, because I believe this circuit’s instructional error

jurisprudence cries out for review, preferably by our court sit-

ting en banc, or if not, by the Supreme Court.

I

In Lara, we rejected the state’s argument that instructional

errors of the sort at stake in this case (involving the possibility

of conviction on legally impermissible grounds) should be

reviewed for harmless error under the standard set forth in

Chapman v. California, 386 U.S. 18 (1967). Lara, 455 F.3d

at 1086. Chapman stands for the principle that a federal con-

stitutional error may be held harmless if a court is “able to

declare a belief that it was harmless beyond a reasonable

doubt.” Chapman, 386 U.S. at 24. Instead, purportedly relying

on Sandstrom v. Montana, 442 U.S. 510 (1979), we held in

Lara that because the error at stake “enabled the jury to

deliver a general verdict that potentially rested on different

theories of guilt, at least one of which was constitutionally

invalid,” the error must have been “structural” and not subject

to harmless error review. Lara, 455 F.3d at 1086.

It is true that Sandstrom held that a state trial court commit-

ted federal constitutional error by instructing a jury with a

rebuttable, burden-shifting presumption on an element of the

offense, even though it was not certain that the jury had relied

upon the burden-shifting instruction at issue. Sandstrom, 442

U.S. at 526. The Supreme Court in Sandstrom went on to cite

a much earlier case, Stromberg v. California, 283 U.S. 359,

to the effect that where a case is submitted to the jury on alter-

native theories, the unconstitutionality of one of the theories

requires that the verdict be set aside. Sandstrom, 442 U.S. at

526. But Lara’s reliance on Sandstrom as leading to the rejec-

PULIDO v. CHRONES 6521

tion of harmless error review for Sandstrom errors is dubious

at best, inasmuch as Sandstrom itself specifically reserved

judgment on that very question, however decisive its citation

of Stromberg may seem. Sandstrom, 442 U.S. at 526-27.1

Moreover, the distinction between structural errors and trial

errors relied upon in Lara is patently illogical.

Lara rightly recognizes that we review instructions that

omitted elements of offenses for harmless error. Lara, 455

F.3d at 1086. Lara describes such trial errors as “simply”

omitting or “merely” omitting elements from instructions, and

contrasts them with the allegedly more serious error of plac-

ing before the jury one correct and one incorrect instruction.

Id. But these uses of “simply” and “merely” represent nothing

more than rhetorical legerdemain: for the result of element-

omitting instructions is of course that the only theory placed

before the jury is constitutionally defective. And yet, as we

recognized in Lara, such errors are subject to harmless error

review. Thus, we implicitly decided in Lara that a jury

instruction adding a legally permissible theory to a legally

impermissible one somehow increases the gravity of the

error.

If logic is not enough to demonstrate our mistake in Lara,

then Supreme Court text ought to be. In Rose v. Clark, 478

U.S. 570 (1986), the Court clearly indicated its answer to the

question it had held in abeyance in Sandstrom, whether harm-

less error review is properly applied to Sandstrom errors:

We agree that the determination of guilt or inno-

cence . . . is for the jury rather than the court. . . .

1

In fairness, Lara claims also to be relying upon this court’s elabora-

tions of the Sandstrom opinion, especially our decision in Keating v.

Hood, 191 F.3d 1053 (9th Cir. 1999). Lara, 455 F.3d at 1086. Indeed,

Keating is quoted for the “absolute certainty” standard applied in Lara. Id.

at 1085. Nevertheless, as will be shown below, citations to our own con-

fused circuit law in this area cannot overcome the Supreme Court’s own

clear rejection of the structural error analysis adopted in Lara.

6522 PULIDO v. CHRONES

Harmless-error analysis addresses a different ques-

tion: what is to be done about a trial error that, in

theory, may have altered the basis on which the jury

decided the case, but in practice clearly had no effect

on the outcome? This question applies not merely to

Sandstrom violations, but to other errors that may

have affected either the instructions the jury heard or

the record it considered—including errors such as

mistaken admission of evidence, or unconstitutional

comment on a defendant’s silence, or erroneous limi-

tation of defendant’s cross-examination of a prosecu-

tion witness. All of these errors alter the terms under

which the jury considered the defendant’s guilt or

innocence, and therefore all theoretically impair the

defendant’s interest in having a jury decide his case.

The dissent’s argument—that the Sixth Amendment

forbids a reviewing court to decide the impact of a

trial error on the outcome . . . logically implies that

all such errors are immune from harmless error anal-

ysis. Yet this court has repeatedly held to the con-

trary . . . . Indeed, Chapman, the beginning of this

line of cases, applied harmless-error analysis to an

error that placed an improper argument before the

jury . . . . These decisions, ignored by the dissent,

strongly support the application of harmless-error

analysis in the context of Sandstrom error.

Rose, 478 U.S. at 58, n.11 (citations omitted). Even though

Rose did not squarely address the precise error at stake here

and in Lara, the logic of the opinion, as demonstrated by the

passage quoted, is unmistakable.

For this reason, shortly after Rose, the First Circuit rejected

the same logic we embraced more than twenty years later in

Lara:

Once the camouflage is stripped away, petitioner’s

assertion reduces to the strange claim that, because

PULIDO v. CHRONES 6523

the jury here received both a “good” charge and a

“bad” charge on the issue, the error was somehow

more pernicious than in Rose—where the only

charge on the critical issue was a mistaken one. That

assertion cannot possibly be right, so it is plainly

wrong.

Quigley v. Vose, 834 F.2d 14, 16 (1st Cir. 1987) (per curiam).

Our decision in Lara fails to note either Rose or Quigley, let

alone to distinguish them.

II

As the foregoing discussion makes clear, Lara’s attempt to

distinguish instructional errors involving impermissible alter-

native theories from any other instructional errors is logically

unsustainable and inconsistent with Supreme Court precedent.

Our reliance upon signaling words such as “merely” and

“simply” to describe serious constitutional errors such as

those at stake in Chapman serves, indeed, only to camouflage

the underlying reality and to create a distinction where there

is no difference—as if by playing with names, the scent of

Rose might be altered. I believe that Lara should be overruled

to correct our erroneous instructional error jurisprudence—if

not by our court sitting en banc then, in due course, by the

Supreme Court. Until that happens, I have no alternative but

to concur in the opinion of the court.

THOMAS, Circuit Judge, concurring:

Although I agree with the majority opinion that Lara v.

Ryan, 455 F.3d 1080 (9th Cir. 2006), requires us to treat the

instructional error at issue here as a structural error, I write

separately to emphasize that the result the majority reaches

would be the right result even under a harmless error stan-

dard. I also write to express my respectful disagreement with

6524 PULIDO v. CHRONES

the conclusion of my concurring colleague that Lara should

be overruled.

I

Under the harmless error standard, the government bears

the burden of demonstrating that the alleged error could not

have affected the outcome. Chapman v. California, 386 U.S.

18, 23-24 (1967). Specifically, the government must show

that it is “clear beyond a reasonable doubt that a rational jury

would have found the defendant guilty absent the error.”

Neder v. United States, 527 U.S. 1, 18 (1999).

When applying the harmless error standard in a case of

instructional error, the court must evaluate the record as a

whole. Id. at 19 (“Of course, safeguarding the jury guarantee

will often require that a reviewing court conduct a thorough

examination of the record.”). Although it might be possible to

conclude that an individual verdict form was sufficiently clear

to cure an instructional error, the relevant question must not

be so limited. Rather, the court must determine whether the

entire record, including not just curative instructions but all

aspects of the jury’s deliberative process, undoubtedly dem-

onstrates that a rational jury would have convicted the defen-

dant even if the error had not been made. In other words, as

the Supreme Court has specifically held, “a single instruction

to the jury may not be judged in artificial isolation but must

be viewed in the context of the overall charge.” Middleton v.

McNeil, 541 U.S. 433, 437 (2004) (quoting Boyde v. Califor-

nia, 494 U.S. 370, 378 (1990)).

II

The government offers two theories for finding that the

instructional error was harmless — or at least for finding that

the California Supreme Court did not unreasonably apply

Chapman v. California, 386 U.S. 18 (1967), when it con-

cluded that the error was harmless.

PULIDO v. CHRONES 6525

First, the government points out that one of the three spe-

cial circumstance robbery-murder instructions, CALJIC

8.80.1, required the jury to find that “the murder was commit-

ted while the defendant was engaged in or was an accomplice

in . . . robbery.” The state Supreme Court concluded and the

government now contends that that instruction sufficiently

cured any confusion arising from the flawed felony-murder

instruction and from the typographical error in CALJIC

8.81.17 because it clearly required contemporaneity between

the murder and the defendant’s involvement in the robbery.

Second, the government points out that the jury’s verdict

form for special circumstance robbery-murder specified that

Pulido “engaged in or was an accomplice in the commission

of or attempted commission of robbery during the commission

of the crime charged in Count 1 [murder].” According to both

the California Supreme Court and the government, that lan-

guage on the verdict form demonstrates that the jury found

“explicitly, unanimously and necessarily[ ] that defendant’s

involvement in the robbery . . . commenced before or during

the killing of Flores.” People v. Pulido, 936 P.2d 1235, 1243-

44 (Cal. 1997).

As should be apparent, both of the government’s theories

rely on isolated documents; in fact, both theories rely on iso-

lated quotations found within isolated documents. The gov-

ernment argues that those isolated quotations sufficiently

demonstrate the jury’s understanding of and reliance on con-

temporaneity. But the government’s and the California

Supreme Court’s analysis of isolated documents, as noted in

the first part of this opinion, does not suffice under Chapman

and Neder to prove harmlessness beyond a reasonable doubt.

Instead, the California Supreme Court and this court are

required to review the entire record to determine whether the

error caused harm. Our conclusion cannot rest on a verdict

form and an allegedly curative instruction taken in isolation;

it must include a careful review of the entire record to deter-

mine whether the government’s interpretation of isolated doc-

6526 PULIDO v. CHRONES

uments is consistent with other evidence of the jury’s

probable and actual thinking.

III

Once the entire record is considered in this case, it becomes

apparent that the supposedly curative instruction actually

aggravated, rather than curing, the instructional error. Further-

more, the entire record reveals that the multiple instructional

errors at issue in this case had great potential to — and did in

fact — cause jury confusion. As a result, one cannot conclude

beyond a reasonable doubt that the flawed instructions were

irrelevant to the outcome.

A

First, the portion of CALJIC 8.80.1 that supposedly cured

the errors is an extremely small portion of that instruction; the

instruction as a whole, particularly when read together with

other instructions given, actually aggravates the errors in the

felony-murder instructions and the special circumstance

instruction, CALJIC 8.81.17.

The allegedly curative language is contained solely in the

legal formulation of the special circumstance, which states

that the special circumstance is true if “the murder was com-

mitted while the defendant was engaged in or was an accom-

plice to . . . robbery.” The same instruction, however, later

clarifies the standards for finding the special circumstance

under various factual scenarios. Most importantly for pur-

poses of this case, the instruction provides special standards

for cases in which the “defendant was not the actual killer of

a human being” or in which the jury is “unable to decide

whether the defendant was the actual killer[.]” CALJIC

8.80.1, at 2. That is, the instruction lays out special guidelines

for convicting a non-triggerman of the special circumstance.

Because the jury hung on the question of whether Pulido

used a gun, we must assume that the jury’s special circum-

PULIDO v. CHRONES 6527

stance finding relied on those specific standards for non-

triggermen. In other words, because we know that the jury

could not decide whether Pulido was the triggerman and

because we must assume that the jury followed all instruc-

tions, we must also assume that the jury followed the special

circumstance guidelines that apply when a jury is “unable to

decide whether the defendant was the actual killer.”

In turn, those standards advise the jury that non-triggermen

are ineligible for the special circumstance “unless you [the

jury] are satisfied beyond a reasonable doubt that the defen-

dant with the intent to kill aided, abetted, counseled, com-

manded, induced, solicited, requested, or assisted any actor in

the commission of the murder in the first degree, or with reck-

less indifference to human life and as a major participant,

aided, abetted, counseled, commanded, induced, solicited,

requested, or assisted in the commission of the crime of rob-

bery . . . which resulted in the death of a human being.” Id.

The instruction, thus, specifically instructed the jury to find

the special circumstance in this case if it concluded either that

Pulido, with intent to kill, aided and abetted the murder or

that Pulido, with reckless indifference to life, aided and abet-

ted the robbery. As should be clear, those standards allow the

jury to find the special circumstance based solely on the the-

ory that Pulido aided and abetted the robbery with reckless

indifference to human life.

Once we consider that instruction in the context of the

entire record, it becomes apparent that the jury might have

found the special circumstance — might have found aiding

and abetting with reckless indifference — based solely on

Pulido’s proffered factual theory that he knowingly partici-

pated in the crime only after the theft and the murder were

completed. There are two aspects of the cumulative jury

instructions that make this possibility viable. First, the court

specifically instructed the jury that aider and abettor liability

for robbery “continues so long as the stolen property is being

carried away to a place of temporary safety.” CALJIC 9.40.1

6528 PULIDO v. CHRONES

(1991 New). The court did not instruct the jury that this defi-

nition of aider and abettor liability attached only to the rob-

bery count — that the relevant assistance for felony-murder

purposes must begin before or during the robbery and murder.

The jury therefore might reasonably but erroneously have

believed that Pulido aided and abetted the robbery within the

meaning of the robbery-murder instruction, CALJIC 8.80.1,

even if, as Pulido maintained, his participation began after the

robbery and the shooting. Because aiding and abetting the

robbery (with reckless indifference to life) sufficed to find the

special circumstance under the non-triggerman guidelines and

because after-the-fact participation sufficed to find aider and

abettor liability under the robbery instructions, the jury might

erroneously have found the special circumstance to be true

even under Pulido’s proffered facts.

The second troubling aspect of the cumulative instructions

is that they nowhere define “reckless indifference to human

life.” Although there was no evidence introduced at trial that

would have supported a legal conclusion of reckless indiffer-

ence, it seems extremely unlikely that — without instruction

— the jury took a limited, legalistic view of the “reckless

indifference” language. Under its ordinary meaning, “reckless

indifference to human life” might very well encompass the act

of assisting someone to flee the scene of a murder. In other

words, a lay jury might have concluded that Pulido was reck-

lessly indifferent to the victim’s life even if it concluded that

the victim was already dead before Pulido participated in the

robbery.

Taking the cumulative instructions, the jury might have

concluded that Pulido’s after-the-fact assistance met both

qualifications for non-triggerman liability under the special

circumstance. Pulido was an aider and abettor within the

meaning of CALJIC 9.40.1, and he acted with reckless indif-

ference to the victim’s life within the lay meaning of those

words.

PULIDO v. CHRONES 6529

Given these two characteristics of the cumulative jury

instructions — that the jury was specifically instructed to find

Pulido guilty of aiding and abetting even if he became

involved only after the robbery was completed and that the

jury was never given a legal definition of “reckless indiffer-

ence to human life” — it seems at least possible that the jury

erroneously found the special circumstance to apply to post-

murder involvement, even if it relied wholly on the suppos-

edly curative CALJIC 8.80.1. The specific standards for non-

triggerman liability in CALJIC 8.80.1, which could encom-

pass post-murder involvement, severely undermine the gov-

ernment’s and the California Supreme Court’s single-minded

reliance on the instruction’s legal formulation of the special

circumstance. Reading the entirety of CALJIC 8.80.1 and tak-

ing it together with all other relevant instructions, the jury was

essentially instructed as follows: “You may find it to be true

that the murder was committed while the defendant was aid-

ing and abetting robbery if you find (1) that the defendant

began assisting a robber after the theft was complete and (2)

that he did so with a reckless indifference to human life.”

When stated succinctly and then applied to this case, the com-

bined instructions are, undoubtedly, internally inconsistent. In

a case in which the theft and murder occurred simultaneously,

it should not be possible to conclude that the murder was

committed while defendant was assisting a robbery if one

concludes that the defendant did not start assisting the robbery

until after the theft was committed. Nevertheless, the com-

bined instructions nowhere precluded that illogical conclusion

and impliedly allowed it. Without clarifying instructions from

the court, it seems entirely possible that the jury simply

accepted the internal inconsistency of their finding as a legal

fiction, assuming that the legal formulation of the special cir-

cumstance was less important to its conclusion than the exten-

sive standards it was given for determining whether the

special circumstance applied to a non-triggerman like Pulido.

At the very least, the cumulative instructions give rise to rea-

sonable doubt as to the jury’s thinking; it is not clear beyond

all doubt that the jury relied on the minimal contemporaneity

6530 PULIDO v. CHRONES

language contained in the legal formulation of the special cir-

cumstance.

For the same reasons, the California Supreme Court’s and

the government’s reliance on the verdict form does not suffice

to remove all reasonable doubts as to the jury’s thinking.

While the verdict form specified that the special circumstance

applies only if Pulido aided robbery “during the commission

of the [murder],” the standards that the jury was given for

determining whether it could issue that verdict allowed it to

do so based on post-murder involvement. Given the combina-

tion of instructions that the jury received, it seems possible

that at least some jurors simply accepted that the verdict form

did not mean what it said. Again, in light of the various

instructions that allowed after-the-fact involvement to count

(including not only the allegedly curative CALJIC 8.80.1 but

also the admittedly defective CALJIC 8.81.17), the jury may

have assumed that the contemporaneity language on the ver-

dict form was simply a legal fiction.

In conclusion, neither the supposedly curative instruction

nor the verdict form removes all reasonable doubts as to the

jury’s thought process. In fact, when read together with all

jury instructions, the supposedly curative instruction com-

pounds rather than alleviating the possibility that the jury

found a special circumstance of robbery-murder even while

accepting Pulido’s theory of after-the-fact assistance.

B

This theoretical possibility becomes more realistic in light

of the questions that the jury submitted to the judge during its

deliberations. The Supreme Court has held that questions

from the jury can demonstrate that the trial court has failed

adequately to instruct the jury. See, e.g., Shafer v. South Caro-

lina, 532 U.S. 36, 52-53 (2001); Simmons v. South Carolina,

512 U.S. 154, 178 (1994); Bollenbach v. United States, 326

U.S. 607, 612 (1946). In this case, three jury questions reveal

PULIDO v. CHRONES 6531

that the jurors were struggling with the requirements of aider

and abettor liability, felony-murder, and the special circum-

stance robbery-murder. First, the jury asked for “instructions

special circumstances for both count 1 and count 2” (empha-

sis original). This question demonstrates a certain degree of

confusion given that the special circumstance does not attach

to either count but, rather, intends to be a special finding of

contemporaneity between the two counts. Second, the jury

asked whether aider and abettor liability requires “knowledge

[of the purpose of the perpetrator] prior to the commission of

the crime or during the commission of the crime[.]” This

question clearly demonstrates that the jurors were confused as

to the timing requirements for aider and abettor liability,

unsure whether Pulido could be found guilty on an aider and

abettor theory if he became aware of the principal’s purpose

only during or after commission of the crime.

Third and most importantly, the jurors asked whether they

could find felony murder based solely on actual “facilitat[ing]

by aiding” or whether they must also find that Pulido intended

for the robbery to occur. Like the previous question, this ques-

tion demonstrates that at least some jurors believed that

Pulido developed knowledge and intent only after the actual

theft had occurred; otherwise, on the alternative facts pre-

sented, there could have been little doubt that Pulido intended

to commit robbery. Critically, that question also demonstrates

the jurors’ belief that Pulido’s intent to commit robbery

would be the determining factor in a felony-murder convic-

tion, not Pulido’s intent to commit murder. That distinction

raises a very real possibility that the jury found the special cir-

cumstance under the “reckless indifference” prong rather than

the “intentional murder” prong of the standards for non-

triggerman liability.

Importantly, the judge did not answer any of those ques-

tions directly. Instead, he merely referred the jurors back to

their flawed and inconsistent instructions.

6532 PULIDO v. CHRONES

Based on these jury questions, it seems not only possible

but probable that the jurors were confused as to the timing

and intent requirements in the felony-murder and special cir-

cumstance instructions. Those questions, at the very least,

raise a reasonable doubt as to whether the jurors understood

and relied on the contemporaneity requirement that was for-

mally included in the verdict form and in the legal formula-

tion of the special circumstance.

C

In conclusion, the government’s theories fail to establish

beyond a reasonable doubt that the error in this case was

harmless. The cumulative instructions allowed a conviction

for felony-murder and a finding of special circumstance

robbery-murder even under Pulido’s asserted factual theory

that he became a knowing participant only after the robbery

and shooting were completed. Furthermore, the jurors’ ques-

tions raise a real possibility that at least one juror would have

voted to acquit Pulido of felony-murder and special circum-

stance charges if the jury had been properly instructed that

contemporaneity was a necessary finding. Therefore, I con-

clude that Pulido would be entitled to relief even under a

harmless error standard.

IV

The special concurrence urges us to reexamine Lara. I

believe Lara was correctly decided. Lara was founded on

Sandstrom v. Montana, 442 U.S. 510, 526 (1979), which held

that “when a case is submitted to the jury on alternative theo-

ries the unconstitutionality of any of the theories requires that

the conviction be set aside.” Id. (citing Stromberg v. Califor-

nia, 283 U.S. 359, 368 (1931)). Sandstrom was not an anomo-

lous decision. In Zant v. Stephens, 462 U.S. 862, 881 (1983),

the Supreme Court held that “a general verdict must be set

aside if the jury was instructed that it could rely on any of two

or more independent grounds, and one of those grounds is

PULIDO v. CHRONES 6533

insufficient, because the verdict may have rested exclusively

on the insufficient ground.” Similarly, in Yates v. United

States, 354 U.S. 298, 312 (1957), overruled on other grounds

by Burks v. United States, 437 U.S. 1(1978), the Court stated

that:

[T]he proper rule to be applied is that which requires

a verdict to be set aside in cases where the verdict is

supportable on one ground, but not on another, and

it is impossible to tell which ground the jury

selected.

Id.

In sum, the conclusion in Lara that the Supreme Court

meant what it said in Sandstrom is firmly founded in Supreme

Court jurisprudence. I would not revisit the holding in Lara.

V

Because I agree that Lara controls this case, because I

believe that Lara was properly decided, and because Pulido

would be entitled to relief even under a harmless error stan-

dard, I concur in the majority opinion.