# Michael Robert Pulido v. Chris Chrones, Warden, Michael Robert Pulido v. Chris Chrones, Warden

> Court of Appeals for the Ninth Circuit · May 30, 2007 · 487 F.3d 669

URL: https://www.frixlaw.com/law-library/cases/9499697

## Case

- **Full name:** Michael Robert PULIDO, Petitioner-Appellee, v. Chris CHRONES, Warden, Respondent-Appellant; Michael Robert Pulido, Petitioner-Appellant, v. Chris Chrones, Warden, Respondent-Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** May 30, 2007
- **Citations:** 487 F.3d 669; 2007 U.S. App. LEXIS 12437; 2007 WL 1544505
- **Precedential status:** Published
- **Opinion:** Concurrence by O'Scannlain
- **Judges:** Goodwin, O'Scannlain, Thomas
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9499697

## How later opinions describe it (automated extraction)

- characterizing Lara as holding that the option to convict under an invalid alternative theory is structural error, but would merit reversal only if a reviewing court could not be absolutely certain that the jury did not convict under a valid theory

## Opinion text

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 sitting 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 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). Lara, 455 F.3d at 1086 . Chapman stands for the principle that a federal constitutional 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 , 87 S.Ct. 824 . Instead, purportedly relying on Sandstrom v. Montana, 442 U.S. 510 , 99 S.Ct. 2450 , 61 L.Ed.2d 39 (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 committed 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 , 99 S.Ct. 2450 . The Supreme Court in Sandstrom went on to cite a much earlier case, Stromberg v. California, 283 U.S. 359 , 51 S.Ct. 532 , 75 L.Ed. 1117 , to the effect that where a case is submitted to the jury on *677 alternative theories, the unconstitutionality of one of the theories requires that the verdict be set aside. Sandstrom, 442 U.S. at 526 , 99 S.Ct. 2450 . But Lara’s reliance on Sandstrom as leading to the rejection 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 , 99 S.Ct. 2450 . 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 placing 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 , 106 S.Ct. 3101 , 92 L.Ed.2d 460 (1986), the Court clearly indicated its answer to the question it had held in abeyance in Sandstrom , whether harmless error review is properly applied to Sandstrom errors:
We agree that the determination of guilt or innocence ... is for the jury rather than the court.... Harmless-error analysis addresses a different question: 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 limitation of defendant’s cross-examination of a prosecution 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 analysis. Yet this court has repeatedly held to the contrary.... 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.
*678 Rose, 478 U.S. at 582, n. 11 , 106 S.Ct. 3101 (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 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 alternative 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.
. In fairness, Lara claims also to be relying upon this court's elaborations of the Sand-strom 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 confused circuit law in this area cannot overcome the Supreme Court's own clear rejection of the structural error analysis adopted in Lara .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9499697. Public record. Not legal advice.