(Slip Opinion) Cite as: 555 U. S. ____ (2008) 1
Per Curiam
NOTICE: This opinion is subject to formal revision before publication in the
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SUPREME COURT OF THE UNITED STATES
_________________
No. 07–544
_________________
ANTHONY HEDGPETH, WARDEN, PETITIONER v.
MICHAEL ROBERT PULIDO
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[December 2, 2008]
PER CURIAM.
A conviction based on a general verdict is subject to
challenge if the jury was instructed on alternative theories
of guilt and may have relied on an invalid one. See Strom
berg v. California, 283 U. S. 359 (1931); Yates v. United
States, 354 U. S. 298 (1957). In this case the Court of
Appeals for the Ninth Circuit held that such an error is
“structural error,” requiring that the conviction be set
aside on collateral review without regard to whether the
flaw in the instructions prejudiced the defendant. The
parties now agree that the Court of Appeals was wrong to
categorize this type of error as “structural.” They further
agree that a reviewing court finding such error should ask
whether the flaw in the instructions “had substantial and
injurious effect or influence in determining the jury’s
verdict.” Brecht v. Abrahamson, 507 U. S. 619, 623 (1993)
(internal quotation marks omitted). We agree as well and
so hold.
Respondent Michael Pulido was convicted by a Califor
nia jury of felony murder. On direct appeal, Pulido sought
to vacate his conviction on the ground that the jury in
2 HEDGPETH v. PULIDO
Per Curiam
structions were erroneous: They permitted the jury to find
him guilty of felony murder if he formed the intent to aid
and abet the underlying felony before the murder, but
they also permitted the jury to find him guilty if he formed
that intent only after the murder. The California Su
preme Court agreed with Pulido that the latter theory was
invalid under California law, but upheld the conviction on
the ground that Pulido was not prejudiced by the error.
People v. Pulido, 15 Cal. 4th 713, 727, 936 P. 2d 1235,
1243–1244 (1997). Pulido sought federal habeas relief,
which the District Court granted after concluding that
instructing the jury on the invalid theory had a “ ‘substan
tial and injurious effect or influence in determining the
jury’s verdict.’ ” Pulido v. Lamarque, No. C 99–4933 CW
(RR) (ND Cal., Mar. 24, 2005), App. to Pet. for Cert. 65a–
66a (quoting Brecht, supra, at 637).
The State appealed and the Court of Appeals affirmed.
Pulido v. Chrones, 487 F. 3d 669 (2007) (per curiam). On
appeal, Pulido argued the District Court’s Brecht analysis
was correct, but in the alternative sought to avoid the
harmless-error inquiry altogether. In support of that
alternative argument, he maintained that when a jury
returns a general verdict after being instructed on both a
valid and an invalid theory, the conviction must be auto
matically set aside, without asking whether the invalid
instruction was harmless. The Court of Appeals recog
nized that the Brecht “substantial and injurious effect”
standard governs harmless-error analysis on federal ha
beas, 487 F. 3d, at 673, n. 3 (internal quotation marks
omitted), but agreed with Pulido that instructing a jury on
multiple theories of guilt, one of which is legally improper,
was “structural” error exempting the instructions as a
whole from harmless-error review, id., at 675–676. Such
error instead required setting aside the conviction on
habeas unless the reviewing court could determine with
“absolute certainty” that the defendant was convicted
Cite as: 555 U. S. ____ (2008) 3
Per Curiam
under a proper theory. Id., at 676 (citing Lara v. Ryan,
455 F. 3d 1080, 1086 (CA9 2006)). Because the instruc
tions “le[ft] open the possibility” that the jury convicted
Pulido on the impermissible ground, the court concluded
that the verdict must be reversed. 487 F. 3d, at 676. We
granted certiorari. 552 U. S. ___ (2008).
The Ninth Circuit precedent on which the Court of
Appeals relied, see Lara v. Ryan, supra, based its struc
tural-error analysis upon a line of our cases beginning
with Stromberg. Stromberg addressed the validity of a
general verdict that rested on an instruction that the
petitioner could be found guilty for displaying a red flag as
“ ‘a sign, symbol, or emblem of opposition to organized
government, or [a]s an invitation or stimulus to anarchis
tic action, or [a]s [a]n aid to propaganda that is of a sedi
tious character.’ ” 283 U. S., at 363. After holding that the
first clause of the instruction proscribed constitutionally
protected conduct, we concluded that the petitioner’s
conviction must be reversed because “it [wa]s impossible to
say under which clause of the [instruction] the conviction
was obtained.” Id., at 368. In Yates v. United States,
supra, we extended this reasoning to a conviction resting
on multiple theories of guilt when one of those theories is
not unconstitutional, but is otherwise legally flawed.
Both Stromberg and Yates were decided before we con
cluded in Chapman v. California, 386 U. S. 18 (1967), that
constitutional errors can be harmless. Accordingly, nei
ther Stromberg nor Yates had reason to address whether
the instructional errors they identified could be reviewed
for harmlessness, or instead required automatic reversal.
In a series of post-Chapman cases, however, we concluded
that various forms of instructional error are not structural
but instead trial errors subject to harmless-error review.
See, e.g., Neder v. United States, 527 U. S. 1 (1999) (omis
sion of an element of an offense); California v. Roy, 519
U. S. 2 (1996) (per curiam) (erroneous aider and abettor
4 HEDGPETH v. PULIDO
Per Curiam
instruction); Pope v. Illinois, 481 U. S. 497 (1987) (mis
statement of an element of an offense); Rose v. Clark, 478
U. S. 570 (1986) (erroneous burden-shifting as to an ele
ment of an offense).
Although these cases did not arise in the context of a
jury instructed on multiple theories of guilt, one of which
is improper, nothing in them suggests that a different
harmless-error analysis should govern in that particular
context. To the contrary, we emphasized in Rose that
“while there are some errors to which [harmless-error
analysis] does not apply, they are the exception and not
the rule.” Id., at 578. And Neder makes clear that harm
less-error analysis applies to instructional errors so long
as the error at issue does not categorically “ ‘vitiat[e] all
the jury’s findings.’ ” 527 U. S., at 11 (quoting Sullivan v.
Louisiana, 508 U. S. 275, 281 (1993) (erroneous reason
able-doubt instructions constitute structural error)). An
instructional error arising in the context of multiple theo
ries of guilt no more vitiates all the jury’s findings than
does omission or misstatement of an element of the offense
when only one theory is submitted.
In fact, drawing a distinction between alternative
theory error and the instructional errors in Neder, Roy,
Pope, and Rose would be “patently illogical,” given that
such a distinction “ ‘reduces to the strange claim that,
because the jury . . . received both a “good” charge and a
“bad” charge on the issue, the error was somehow more
pernicious than . . . where the only charge on the critical
issue was a mistaken one.’ ” 487 F. 3d, at 677–678
(O’Scannlain, J., concurring specially) (quoting Quigley v.
Vose, 834 F. 2d 14, 16 (CA1 1987) (per curiam)); see also
Becht v. United States, 403 F. 3d 541, 548 (CA8 2005)
(same), cert. denied, 546 U. S. 1177 (2006).
Pulido now agrees with the State that the Court of
Appeals erred by treating the instructional error in this
case as structural, and that the required prejudice analy
Cite as: 555 U. S. ____ (2008) 5
Per Curiam
sis should be governed by Brecht’s “substantial and injuri
ous effect” standard. See Brief for Respondent 17 (“[t]he
Ninth Circuit was mistaken in its ‘structural defect’ no
menclature”); Tr. of Oral Arg. 27 (“We acknowledge that
this is a trial error and is subject to the Brecht prejudice
standard”). So do we.
Pulido nonetheless maintains we should affirm because
the Court of Appeals effectively engaged in the Brecht
analysis, despite its clear description of the error as
“structural.” But despite full briefing on the applicability
of Brecht, the Court of Appeals mentioned Brecht only
briefly in a footnote, see 487 F. 3d, at 673, n. 3, and then
went on to agree with Pulido’s alternative assertion that
“the instructional error was structural and therefore not
subject to harmless error review,” id., at 675–676. The
court also stated that the conviction had to be overturned
unless the court was “absolutely certain” that the jury
relied on a valid ground. Id., at 676. Such a determina
tion would appear to be a finding that no violation had
occurred at all, rather than that any error was harmless.
In any event, an “absolute certainty” standard is plainly
inconsistent with Brecht. Accordingly, we express no view
on whether Pulido is entitled to habeas relief, but rather
remand to the Court of Appeals for application of Brecht in
the first instance.*
The judgment is vacated, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
——————
* The dissent maintains the Court of Appeals “undertook a searching
review of the parties’ evidence and the jury instructions to determine
the error’s effect on the jury.” Post, at 6 (opinion of STEVENS, J.). But
the Court of Appeals reached its conclusion based solely on the exis
tence of a typographical error in the special circumstances instructions,
without addressing any of the State’s arguments that the typographical
error was harmless in light of the record as a whole. There was no need
for that court to address those arguments, of course, because of its
mistaken conclusion that the instructional error was structural. Under
such circumstances, remand is the appropriate course.
Cite as: 555 U. S. ____ (2008) 1
STEVENS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–544
_________________
ANTHONY HEDGPETH, WARDEN, PETITIONER v.
MICHAEL ROBERT PULIDO
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[December 2, 2008]
JUSTICE STEVENS, with whom JUSTICE SOUTER and
JUSTICE GINSBURG join, dissenting.
The Court of Appeals misused the term “structural
error” in its opinion affirming the District Court’s order
granting Pulido’s application for a writ of habeas corpus.
But the court’s misnomer was inconsequential because its
decision rested on substantially the same analysis as the
District Court’s, which correctly applied the standards set
forth in Kotteakos v. United States, 328 U. S. 750 (1946),
Brecht v. Abrahamson, 507 U. S. 619 (1993), and O’Neal v.
McAninch, 513 U. S. 432 (1995). The Court of Appeals’
decision therefore did not warrant this Court’s review and
does not now merit a remand to require that court to
repeat its analysis. In my opinion, the interest in expedit
ing the conclusion of this protracted litigation outweighs
the interest in correcting a misnomer.
Respondent Michael Pulido was charged with felony
murder for robbing a gas station and killing the attendant.
At trial, the State argued that Pulido acted alone. Pulido
maintained that his uncle was the principal actor and that
he had no knowledge of his uncle’s plan when the two
arrived at the gas station. While he was waiting in the
car, Pulido claimed, he heard a shot and ran into the store.
At that point, his uncle insisted that Pulido help him pry
open the stolen cash register and dispose of it, and Pulido
2 HEDGPETH v. PULIDO
STEVENS, J., dissenting
reluctantly complied. The jury convicted Pulido of felony
murder, but it was unable to reach a verdict on the
charges that Pulido personally used a firearm and inten
tionally inflicted great bodily harm.
As a matter of California law, felony-murder liability
extends to all persons jointly engaged in the commission of
a felony at the time of a killing when one of the joint ac
tors kills in furtherance of the common design. People v.
Pulido, 15 Cal. 4th 713, 716, 936 P. 2d 1235, 1236 (1997).
But a person is not guilty of felony murder if he is only a
“late-joining” aider and abettor—i.e., if he did not himself
commit the murder and his participation in the underlying
felony did not begin until after the victim was killed. Ibid.
In this case, the trial court’s instructions erroneously
permitted the jury to find Pulido guilty on such a theory,
as they did not require the jury to find either that Pulido
committed the murder or that he aided and abetted the
underlying robbery before the murder was committed.
Because the instructions allowed the jury to convict Pulido
of felony murder for conduct that does not amount to that
offense, their inclusion was constitutional error.
On direct appeal, the California Supreme Court agreed
with Pulido that the late-joiner theory was an invalid
theory of felony-murder liability. Ibid. It nevertheless
held that any error in the trial court’s instructions was
harmless. According to the court, the jury found that
Pulido had been engaged in the robbery at the time of the
killing because the robbery-murder special-circumstance
instruction stated that “the murder was committed while
the defendant was engaged” in the “commission of or at
tempted commission of [a] robbery.” Id., at 727, 936 P. 2d,
at 1243 (citing Cal. Penal Code Ann. §190.2(a)(17) (West
1992) (internal quotation marks omitted)). Based on that
portion of the instruction, the court concluded that the
special-circumstance verdict “demonstrates that the jury
did not accept the theory that [Pulido] joined the robbery
Cite as: 555 U. S. ____ (2008) 3
STEVENS, J., dissenting
only after [the victim] was killed,” and it therefore held
that Pulido was not prejudiced by the error. 15 Cal. 4th,
at 727, 936 P. 2d, at 1244.
In reaching that conclusion, however, the California
Supreme Court failed to take into account the entire spe
cial-circumstance instruction. A typographical error in
that instruction in fact permitted the jury to find the
special circumstance of robbery-murder true if it found
either that the murder was committed while the defendant
was engaged in the commission of a robbery or that it “was
committed in order to carry out or advance the commission
of the crime of robbery or to facilitate the escape therefrom
or to avoid detection”—a finding entirely consistent with
the late-joiner theory. App. 14. Thus, as the State con
cedes, the erroneous instructions made it “reasonably
likely” that the jury convicted Pulido on the impermissible
theory. Brief for Petitioner 18.
After exhausting his state postconviction remedies,1
Pulido sought a writ of habeas corpus in Federal District
Court. The District Court recognized the erroneous dis
junctive in the special-circumstance instruction that the
California Supreme Court had overlooked, and it held that
the state court’s conclusion that Pulido was not prejudiced
by erroneous instructions was “an objectively unreason
able application of clearly established federal law.” App.
to Pet. for Cert. 64a.
The District Court then considered the effect of that
error on the jury. Correctly relying on Brecht, the District
Court began its analysis by noting that a federal habeas
petitioner “is not entitled to habeas relief unless the State
court’s error resulted in actual prejudice, that is, the error
had a ‘substantial and injurious effect or influence in
——————
1 The California Supreme Court summarily denied Pulido’s state
petition for a writ of habeas corpus. See Pulido v. Chrones, 487 F. 3d
669, 672 (CA9 2007) (per curiam).
4 HEDGPETH v. PULIDO
STEVENS, J., dissenting
determining the jury’s verdict.’ ” App. to Pet. for Cert. 65a
(quoting Brecht, 507 U. S., at 637). If an error had a sub
stantial influence, or if “the record is so evenly balanced
that a conscientious judge is in ‘grave doubt’ ” as to
whether it had such an effect, the conviction must be
reversed. App. to Pet. for Cert. 65a. (quoting O’Neal, 513
U. S., at 438).
To determine whether the error was harmless under
this standard, the District Court scrutinized the record,
including the arguments of both parties, the evidence
supporting their respective theories of the case, the jury
instructions, the jury’s questions to the trial court, and the
various parts of the jury’s verdict. App. to Pet. for Cert.
65a–66a. Throughout this inquiry, the District Court
properly avoided substituting its judgment for the jury’s.
As we cautioned in Kotteakos, in undertaking harmless
error analysis “it is not the [reviewing] court’s function to
determine guilt or innocence. Nor is it to speculate upon
probable reconviction and decide according to how the
speculation comes out.” 328 U. S., at 763 (citations omit
ted). Thus, “[t]he inquiry cannot be merely whether there
was enough to support the result” in the absence of the
error. Id., at 765. Rather, the proper question is “whether
the error itself had substantial influence. If so, or if one is
left in grave doubt, the conviction cannot stand.” Ibid.;
accord, O’Neal, 513 U. S., at 437.
That was precisely the question addressed by the Dis
trict Court when it sought to ascertain what the jury
actually found. The court concluded that, while it is “pos
sible” that the jury found that Pulido aided and abetted
the robbery before the victim was killed, the court had “no
way of determining whether this was the case.” App. to
Pet. for Cert. 66a. Because that uncertainty left the court
with “ ‘grave doubt as to the likely effect of [the] error on
the jury’s verdict,’ ” it faithfully applied the standard
mandated by Kotteakos and O’Neal and found that the
Cite as: 555 U. S. ____ (2008) 5
STEVENS, J., dissenting
error was not harmless. App. to Pet. for Cert. 66a. (quot
ing O’Neal, 513 U. S., at 435).
On appeal, Pulido contended that the judgment of the
District Court should be affirmed whether the instruc
tional error was viewed as structural error or as trial
error. Brief of Appellee and Cross-Appellant in Nos. 05–
15916, 05–16308 (CA9), pp. 53–64 (hereinafter Appellee’s
Brief). He argued that the error was not harmless under
Brecht and O’Neal because the substantial evidence that
supported the invalid theory made it likely that the jury
convicted him on that basis. Appellee’s Brief 55–64. In
particular, Pulido noted that the “injurious effect” of this
type of error “is greatest when the instruction compro
mises the defense by appearing to extend liability even to
the factual scenario suggested by the defense evidence,” as
was true in this case. Id., at 57 (internal quotation marks
omitted and emphasis deleted). At oral argument, the
parties’ contentions similarly focused on the Brecht stan
dard and the result that harmless-error analysis required.
Less than two months after oral argument, and before
the Court of Appeals issued its decision in this case, a
different panel of the Ninth Circuit decided Lara v. Ryan,
455 F. 3d 1080 (2006). Lara was convicted of attempted
murder by a jury that had been instructed that it could
find him guilty under either an express malice theory or
an implied malice theory, the second of which is legally
invalid. Id., at 1082. The Ninth Circuit described the
erroneous instruction as a “structural error,” but it held
that such an error does not necessitate reversal when a
reviewing court can “determine with absolute certainty”
that the defendant was not convicted under the erroneous
theory. Id., at 1086. Because the jury “made a specific
finding that Lara attempted to murder willfully, deliber
ately, and with premeditation,” the court concluded that it
necessarily relied on the valid instruction and that rever
sal was therefore not required. Id., at 1086–1087.
6 HEDGPETH v. PULIDO
STEVENS, J., dissenting
In those limited instances in which this Court has found
an error “structural,” we have done so because the error
defies analysis by harmless-error standards. See Arizona
v. Fulminante, 499 U. S. 279, 309 (1991); see also United
States v. Gonzalez-Lopez, 548 U. S. 140, 150 (2006) (quot
ing Sullivan v. Louisiana, 508 U. S. 275, 282 (1993);
United States v. Cronic, 466 U. S. 648, 659, and n. 25
(1984)). Indeed, it is because the consequences “ ‘are nec
essarily unquantifiable and indeterminate’ ” that auto
matic reversal is required when such errors occur. Gon
zalez-Lopez, 548 U. S., at 150 (quoting Sullivan, 508 U. S.,
at 282). That the court in Lara could be “ ‘absolutely
certain’ that the jury relied upon the legally correct the
ory,” 455 F. 3d, at 1085, shows both that the error was
susceptible of harmless-error analysis and that the court
in fact found the error harmless despite repeatedly refer
ring to it as “structural.”
Citing Lara, the Court of Appeals’ per curiam opinion
labeled the erroneous instruction in this case a structural
error.2 As in Lara, the court then undertook a searching
review of the parties’ evidence and the jury instructions to
determine the error’s effect on the jury. Noting, among
other things, that “[t]he typographical error in the con
temporaneity 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 circum
stance,” the court concluded that “the jury instructions
leave open the possibility that the jury convicted Pulido on
a legally impermissible theory.” Pulido v. Chrones, 487
——————
2 The Court of Appeals’ opinion asserts that Pulido argued that the
error was structural under Lara v. Ryan, 455 F. 3d 1080 (CA9 2006).
But due to the timing of the Lara decision, the parties did not raise
arguments relying on that precedent until their postargument supple
mental briefing. As discussed above, the parties’ arguments had
initially focused on the proper application of Brecht v. Abrahamson, 507
U. S. 619 (1993).
Cite as: 555 U. S. ____ (2008) 7
STEVENS, J., dissenting
F. 3d 669, 676 (CA9 2007). That possibility of reliance on
the erroneous instruction is the “substantial and injurious
effect” to which Brecht refers. Thus, although the Court of
Appeals called the error in this case by the wrong name, it
performed substantially the same analysis and reached
the same conclusion as the District Court did when it
applied the standard prescribed by Brecht.3
Judge Thomas concurred separately both to defend the
Lara decision and to demonstrate that harmless-error
analysis also supports the panel’s result. 487 F. 3d, at
678–683. Unlike the District Court, Judge Thomas ap
plied the harmless-error standard announced in Chapman
v. California, 386 U. S. 18 (1967), instead of looking to
Brecht. 487 F. 3d, at 678. But his analysis similarly
establishes that at least some jurors very likely relied on
the impermissible late-joiner theory. Id., at 679–683.
The record before us clearly supports that conclusion.
Indeed, even petitioner admits that the ambiguity in the
robbery and murder instructions and the trial court’s
confusing answers to the jury’s questions “combined to
make it reasonably likely that the jury applied the in
structions in an unconstitutional way.” Brief for Peti
tioner 18. That reasonable likelihood is sufficient to sup
port the conclusion that the error was not harmless under
Brecht.
Because the District Court’s analysis was correct and
the Court of Appeals’ result was substantially the same, I
think this Court’s decision to remand for the purpose of
obtaining a third analysis of the harmless-error issue is a
misuse of scarce judicial resources. I would therefore
affirm the judgment of the Court of Appeals.
——————
3 The Court of Appeals in fact cited Brecht and recited the proper
standard in a footnote before turning its attention to Lara: “If there is a
constitutional error, we consider whether the error was harmless; that
is, whether the error had a ‘ “substantial and injurious effect or influ
ence in determining the jury’s verdict.” ’ ” 487 F. 3d, at 673, n. 3.