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; A. HEDGPETH,
OPINION
Respondents-Appellants.

On Remand From The Supreme Court of the United States

Filed December 21, 2010

Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain and
Sidney R. Thomas, Circuit Judges.*

Opinion by Judge O’Scannlain;
Dissent by Judge Thomas

*The panel unanimously finds this case suitable for decision without
additional oral argument. See Fed. R. App. P. 34(a)(2).

20383
20388 PULIDO v. HEDGPETH

COUNSEL

J. Bradley O’Connell filed the post-Supreme Court remand
brief for the petitioner-appellee.

Jeremy Friedlander, Deputy Attorney General, San Francisco,
California, filed the post-Supreme Court remand brief for the
respondent-appellant. With him on the brief were Edmund G.
Brown, Jr., Attorney General; Dane R. Gillette, Chief Assis-
tant Attorney General; Gerald A. Engler, Senior Assistant
Attorney General; and Peggy S. Ruffra, Supervising Deputy
Attorney General, San Francisco, California.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether erroneous jury instructions in a
state murder trial were prejudicial as a matter of federal Con-
stitutional law.

I

A

During the predawn hours of May 24, 1992, Ramon Flores,
an attendant at a Shell gas station convenience store in San
Mateo, California, was shot in the face with a .45-caliber bullet.1
1
These facts are summarized from the California Supreme Court’s opin-
ion affirming Pulido’s conviction. See People v. Pulido, 936 P.2d 1235,
1237-38 (Cal. 1997).
 PULIDO v. HEDGPETH 20389
He died almost instantaneously. There were no witnesses to
the crime, but a neighbor heard a loud bang coming from near
the station around 3:45 a.m. and then a voice yelling as if
addressing someone else. A Coke can was found on the
store’s counter. Michael Pulido’s thumbprint was on the can.
A cash register, which had been removed from the store, was
found later that morning in some bushes. Pulido’s fingerprints
were on the cash register.

At the time, Pulido, who was sixteen years old, lived with
his uncle, Michael Aragon, and Aragon’s cohabitant, Laura
Moore. Aragon, Moore, two of their children, and a neighbor
had previously seen Pulido with a .45-caliber Colt pistol. On
two occasions, Pulido had observed to Aragon that the Shell
station would be easy to rob because the attendant was always
asleep. Aragon and Moore testified that when they got up at
3 a.m. on the morning of the robbery to care for their baby,
Pulido was not at home. However, when they awoke later that
morning, Pulido was in the living room, already dressed.
Pulido showed Aragon his wallet and said, “Look unc, almost
all ones.” Later that day, Moore insisted that Pulido dispose
of his gun. Pulido took the gun apart and discarded most of
the pieces. Moore retained some of the pieces to prevent
reassembly and turned them over to police, who determined
that they came from a .45-caliber Colt.

When Pulido was arrested on an unrelated auto theft charge
two weeks later, he told police he had information about the
robbery and murder. He led police to some discarded .45-
caliber cartridges with ejection marks resembling those on a
cartridge found at the gas station. He also made several incon-
sistent exculpatory statements to police, first blaming a drug
dealer named Carlos Vasquez, then his stepfather, Eduardo
Alarcon, and finally, an unidentified Tongan male for the rob-
bery and murder. Aragon testified, however, that Pulido had
confessed to the crimes while the two were having dinner at
a pizza parlor. Pulido told Aragon that he went to the gas sta-
tion, bought a Coke, and left. He then returned and saw that
20390 PULIDO v. HEDGPETH
the attendant was asleep. Although he considered shooting the
attendant through the window, he decided instead to go inside
and ask for another Coke. He shot Flores in the face, then
ripped out the cash register and went back to his car. Pulido
recanted this confession while in jail, however, writing in a
letter to Moore: “If unc is reading this, tell him I didn’t kill
that guy, I was just messing with him.”

At trial, Pulido claimed for the first time that Aragon had
killed Flores. According to Pulido, he and Aragon were
together the night of May 23 and ended up at the Shell station
after Aragon smoked crack cocaine at Hunters Point. Pulido
testified that he waited outside while Aragon went in to buy
matches or cigarettes. After hearing a gunshot, Pulido ran into
the store and saw Aragon holding Pulido’s gun. Flores was
lying on the floor, bleeding from a shot to the face. Pulido
yelled at Aragon, ran out of the store, and got back into the
car. Moments later, Aragon came out with the cash register
and threw it on Pulido’s lap. As they drove away, Aragon
forced Pulido at gunpoint to open the cash register. Pulido
handed the cash over to Aragon, then tossed the cash register
into some bushes.

At the time of the shooting, Aragon was on probation for
1989 convictions for burglary, possession of cocaine, and
contributing to the delinquency of a minor. Although Aragon
denied using cocaine that night, Aragon’s sister testified that
he was “on something” when she saw him either on May 24
or 25, and her son testified that Aragon was acting paranoid
and smelled of crack cocaine. A police detective testified that
Aragon had first claimed that he had gotten up at 12:15 a.m.
to take care of the baby, but when interviewed with Moore at
the police station, both said that it was around 3 a.m.

No physical evidence linked Aragon to the crime.
 PULIDO v. HEDGPETH 20391
B

Pulido was convicted in the San Mateo County Superior
Court of first-degree felony murder, robbery, receiving stolen
property, and auto theft. The jury deadlocked on whether
Pulido personally used a firearm and personally inflicted great
bodily injury2 but unanimously returned a special-
circumstance finding of robbery-murder. Pulido was sen-
tenced to life in prison without the possibility of parole.

On direct appeal, Pulido argued that the jury instructions on
aiding and abetting felony murder and robbery, read together,
impermissibly allowed him to be convicted of felony murder
even if he did not form the intent to aid and to abet the rob-
bery until after the murder. The California Supreme Court
agreed that the felony-murder rule did not “include aiders and
abettors or conspirators who join the felonious enterprise only
after the murder has been completed,” and that the instruc-
tions “could well suggest to a jury that a person who aids and
abets only in the asportation phase of robbery, after the killing
is complete, is nonetheless guilty of first degree murder under
the felony-murder rule.” People v. Pulido, 936 P.2d 1235,
1243, 1245 (Cal. 1997) (“Pulido I”). The court upheld Puli-
do’s conviction, however, on the ground that Pulido did not
suffer any prejudice from the instructional error. In particular,
the court concluded that the jury’s robbery-murder special-
circumstance finding “demonstrates the jury did not accept
the theory defendant joined the robbery only after Flores was
killed,” but rather “found—explicitly, unanimously and
necessarily—that defendant’s involvement in the robbery,
whether as a direct perpetrator or as aider and abettor, com-
menced before or during the killing of Flores.” Id. at 1244.

Pulido thereafter filed this federal habeas petition, which
the district court granted after discovering that the other spe-
2
The jury deadlocked 8 to 4, but it is unknown whether the jury was
leaning toward or against the allegations.
20392 PULIDO v. HEDGPETH
cial circumstance instruction—not relied upon by the Califor-
nia Supreme Court or by Pulido—was also defective. Pulido
v. Lamarque, No. 99-4933, 2005 WL 6142229, at *14-*20
(N.D. Cal. Mar. 24, 2005) (“Pulido II”). Namely, it contained
a typographical error, using the word “or” instead of “and”
between its two prongs, thus enlarging the scope of activity
that would qualify as robbery felony murder under the special
circumstance. Id. at *14. Because the district court could not
“be reasonably certain that the jury, if required to do so,
would have found that [Pulido’s] involvement in the robbery
preceded the victim’s death,” the court was “left with grave
doubt as to the likely effect of [the] error on the jury’s ver-
dict.” Id. at *20 (internal quotation marks omitted). Therefore,
the district court concluded that Pulido was entitled to habeas
relief on this claim of instructional error. Id.

We affirmed, concluding that the instructional error was
structural, and that the verdict must be reversed because we
could not be “ ‘absolutely certain’ that the jury found that
Pulido’s crime of robbery was committed contemporaneously
with the murder.” Pulido v. Chrones, 487 F.3d 669, 676 (9th
Cir. 2007) (per curiam) (“Pulido III”) (quoting Lara v. Ryan,
455 F.3d 1080, 1086 (9th Cir. 2006)). The Supreme Court
vacated our decision, however, holding that we were “wrong
to categorize this type of error as ‘structural’ ” rather than
“ask[ing] whether the flaw in the instructions ‘had substantial
and injurious effect or influence in determining the jury’s ver-
dict.’ ” Hedgpeth v. Pulido, 129 S. Ct. 530, 530-31 (2008)
(per curiam) (“Pulido IV”) (quoting Brecht v. Abrahamson,
507 U.S. 619, 623 (1993)). Thus, the Court remanded for us
to determine, in the first instance, whether Pulido was actually
prejudiced by the faulty jury instructions. Id. at 533 & n.*.

II

Pulido contends that the error in the felony-murder instruc-
tions, combined with the newly discovered error in the
special-circumstance instruction, prejudiced him by allowing
 PULIDO v. HEDGPETH 20393
the jury to convict him based on the invalid theory that he did
not join in the robbery until after Flores was murdered (the
“late-joiner theory”).

[1] “When considering an allegedly erroneous jury instruc-
tion in a habeas proceeding, [we] first consider whether the
error in the challenged instruction, if any, amounted to ‘con-
stitutional error.’ ” Morris v. Woodford, 273 F.3d 826, 833
(9th Cir. 2001) (quoting Calderon v. Coleman, 525 U.S. 141,
146 (1998) (per curiam)). Where, as here, constitutional error
is conceded, we proceed directly to the question of prejudice.
See id.

[2] In Fry v. Pliler, 551 U.S. 112 (2007), the Supreme
Court clarified that the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) did not replace the tradi-
tional test for prejudice on collateral review—i.e., whether the
error “had substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht, 507 U.S. at 623.
Moreover, Fry explained that we need not conduct an analysis
under AEDPA of whether the state court’s harmlessness
determination on direct review—which is governed by the
“harmless beyond a reasonable doubt” test set forth in Chap-
man v. California, 386 U.S. 18, 24 (1967)—was contrary to
or an unreasonable application of clearly established federal
law. Fry, 551 U.S. at 119-20 (citing 28 U.S.C. § 2254(d)(1)).
This is because the Brecht test “obviously subsumes” the
“more liberal AEDPA/Chapman standard which requires only
that the state court’s harmless-beyond-a-reasonable-doubt
determination be unreasonable.” Id. at 120. Accordingly, we
apply the Brecht test without regard for the state court’s harm-
lessness determination.3 See id. at 121-22.

[3] Under Brecht, an instructional error is prejudicial and
3
It follows that we apply Brecht “whether or not the state appellate court
recognized the error and reviewed it for harmlessness” under Chapman.
Fry, 551 U.S. at 121-22.
20394 PULIDO v. HEDGPETH
habeas relief is appropriate only if, after reviewing the record
as a whole, we conclude that there was a substantial and inju-
rious effect or influence on the verdict, or if we are “left in
grave doubt” as to whether there was such an effect. Kot-
teakos v. United States, 328 U.S. 750, 765 (1946). Grave
doubt exists in the “unusual” circumstance where, “in the
judge’s mind, the matter is so evenly balanced that he feels
himself in virtual equipoise as to the harmlessness of the
error.” O’Neal v. McAninch, 513 U.S. 432, 435 (1995).

[4] We must “take account of what the error meant to [the
jury], not singled out and standing alone, but in relation to all
else that happened.” Kotteakos, 328 U.S. at 764. Hence, “we
accept at the outset the well established proposition that a sin-
gle instruction to a jury may not be judged in artificial isola-
tion, but must be viewed in the context of the overall charge.”
Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). This propo-
sition recognizes that “not only is the challenged instruction
but one of many such instructions, but the process of instruc-
tion itself is but one of several components of the trial which
may result in the judgment of conviction,” including “testi-
mony of witnesses, argument of counsel, [and] receipt of
exhibits in evidence.” Id. at 147.

III

We begin by considering whether the jury’s special-
circumstance finding rendered the instructional errors harm-
less.

A

[5] The introductory special-circumstance instruction, Cal-
ifornia Jury Instructions—Criminal (“CALJIC”) 8.80.1, began
as follows:

If you find the defendant in this case guilty of
murder of the first degree, you must then determine
 PULIDO v. HEDGPETH 20395
if the following special circumstance is true or not
true: that the murder was committed while the defen-
dant was engaged in or was an accomplice in the
commission of, attempted commission of, or the
immediate flight after committing or attempting to
commit robbery.

(emphasis added). As the California Supreme Court observed,
this statement properly instructed the jury that “the robbery-
murder special-circumstance allegation could not be found
true unless [Pulido] was engaged in the robbery at the time of
the killing.” Pulido I, 936 P.2d at 1243.

[6] CALJIC 8.80.1 further instructed the jury that if it
could not determine whether Pulido was “the actual killer or
an aider and abettor,” it could not find the special circum-
stance unless (1) “the defendant with the intent to kill aided,
abetted, . . . or assisted any actor in the commission of the
murder in the first degree,” or (2) “with reckless indifference
to human life and as a major participant, aided, abetted, . . .
or assisted in the commission of the crime of robbery.”
(emphases added). If the jury found the special circumstance
on the basis of the “intent to kill” prong, it must have con-
cluded that Pulido’s involvement in the robbery preceded the
murder. Therefore, Pulido focuses on the “reckless indiffer-
ence/major participant” prong, contending that the jury con-
strued it in such a way as to find the special circumstance
even if it believed his late-joiner theory.

Taking Pulido’s theory of events as true, it is not implausi-
ble that the jury would have considered Pulido a “major par-
ticipant” in the two-person robbery. The question thus boils
down to whether the jury also found that Pulido acted with
“reckless indifference to human life” based solely on his post-
killing actions.
20396 PULIDO v. HEDGPETH
1

Because the prosecution did not rely on the “reckless indif-
ference” prong, that term was not defined for the jury.4 How-
ever, the California Supreme Court has deemed the legal
meaning of “reckless indifference to human life” to be exactly
the same as its commonsense meaning—“a defendant’s sub-
jective awareness of the grave risk to human life created by
his or her participation in the underlying felony”—thus elimi-
nating any need for clarification for the jury. People v.
Estrada, 904 P.2d 1197, 1203 (Cal. 1995).

[7] It strains credulity to argue that post-killing participa-
tion in a robbery, by itself, created a “grave risk” to a life that
had already been taken.5 Under the late-joiner theory, the only
4
Instead, the prosecution relied on the more rigorous “intent to kill”
prong, telling the jury at closing, “If you believe the defendant was the
aider and abettor and not the actual shooter, then the only way the special
circumstance becomes applicable, is if you feel that when the killing
occurred, the defendant, although not the killer, intended to kill—he knew
that was going to happen and he wanted it to happen.” (emphases added).
Although “arguments of counsel generally carry less weight with a jury
than do instructions from the court,” Boyde v. California, 494 U.S. 370,
384 (1990), a court may “assum[e] that counsel’s arguments clarified an
ambiguous jury charge,” Middleton v. McNeil, 541 U.S. 433, 437 (2004)
(per curiam). “This assumption is particularly apt when it is the prosecu-
tor’s argument that resolves an ambiguity in favor of the defendant.” Id.
By relying solely on the “intent to kill” prong, the prosecution resolved
any ambiguity as to the timing requirement in favor of the defense.
5
The robbery-murder cases cited by Pulido in support of this proposition
are distinguishable. The defendants in these cases each participated in the
robbery and were aware of the grave risk to human life before or during
the killing. See People v. Smith, 38 Cal. Rptr. 3d 1, 11 (Ct. App. 2005)
(defendant who served as the lookout “gained a subjective awareness of
grave risk to human life during the many tumultuous minutes” it took for
his accomplice to beat and stab the victim) (internal quotation marks omit-
ted)), abrogated on other grounds as recognized in People v. Garcia, 85
Cal. Rptr. 3d 393, 420 (Ct. App. 2008); People v. Hodgson, 3 Cal. Rptr.
3d 575, 585 (Ct. App. 2003) (defendant who held clear the exit route while
his accomplice shot the victim “consciously rendered . . . aid knowing [the
 PULIDO v. HEDGPETH 20397
conduct creating any risk to human life was Aragon’s. That
risk had already ripened into Flores’ death by the time Pulido
stumbled into the crime scene. Moreover, Pulido testified that
he “knew a person . . . could not withstand a .45 caliber shot
to the face.” If Pulido did not join the robbery until after Ara-
gon shot Flores, Pulido could not have been subjectively
aware that his assistance to Aragon was creating a “grave risk
to human life.” Consequently, we cannot conclude that the
jury stretched its “commonsense understanding” of “reckless
indifference to human life” to include Pulido’s post-killing
participation in the robbery. Boyde v. California, 494 U.S.
370, 381 (1990).

2

Pulido seeks to minimize the significance of CALJIC
8.80.1 by deeming it a “general introductory instruction” over
which “a specific substantive instruction”—the flawed ver-
sion of CALJIC 8.81.17—would prevail in the jury’s mind.
We disagree.

[8] First, the specificity and length of CALJIC 8.80.1
refutes Pulido’s assertion that this introductory instruction
was prefatory and nonsubstantive.6 This two-page instruction

accomplice’s] purpose and intent to commit the robbery and murder”);
People v. Proby, 70 Cal. Rptr. 706, 710 (Ct. App. 1998) (defendant who
supplied his accomplice with a gun before the robbery knew that the
accomplice was willing to use violence); People v. Mora, 46 Cal. Rptr. 2d
99, 105-06 (Ct. App. 1995) (defendant who planned a home-invasion rob-
bery at night knew that his accomplice would be armed with a rifle).
6
CALJIC 8.80.1, in its entirety, stated:
If you find the defendant in this case guilty of murder of the
first degree, you must then determine if the following special cir-
cumstance is true or not true: that the murder was committed
while the defendant was engaged in or was an accomplice in the
commission of, attempted commission of, or the immediate flight
after committing or attempting to commit robbery.
20398 PULIDO v. HEDGPETH
not only defined the special circumstance, but also set forth
the specific requirements for finding the special circumstance
if the jury could not determine whether Pulido was the actual
killer. It is highly unlikely that the jury would have ignored
the text of this detailed instruction merely because it was cap-
tioned “SPECIAL CIRCUMSTANCES—INTRODUC-
TORY.” (emphasis added).

Pulido mischaracterizes the content of CALJIC 8.81.17 in
an effort to elevate its significance. According to Pulido,
CALJIC 8.81.17 “was the substantive instruction defining the
robbery special circumstance” and contained “the specific
rules governing the special circumstance introduced in
8.80.1.” (second emphasis added). But CALJIC 8.81.17 did

The People have the burden of proving the truth of a special
circumstance. If you have a reasonable doubt as to whether a spe-
cial circumstance is true, you must find it to be not true.
If you are satisfied beyond a reasonable doubt that the defen-
dant actually killed a human being, you need not find that the
defendant intended to kill in order to find the special circum-
stances to be true.
If you find that a defendant was not the actual killer of a
human being, or if you are unable to decide whether the defen-
dant was the actual killer or an aider and abettor, you cannot find
the special circumstance to be true unless you are satisfied
beyond a reasonable doubt that the defendant with the intent to
kill aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted any actor in the commission of the murder
in the first degree, or with reckless 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 robbery (Penal Code, s. 190, 2(1)(17) crime) which
resulted in the death of a human being, namely Ramon Flores.
In order to find a special circumstance alleged in this case to
be true or untrue, you must agree unanimously.
You will state your special finding as to whether the special
circumstance is or is not true on the form that will be supplied.
 PULIDO v. HEDGPETH 20399
not “define” the special circumstance or “govern” CALJIC
8.80.17. To the contrary, CALJIC 8.81.17 merely provided:

To find that the special circumstance, referred to
in these instructions 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 of a robbery; or

2. The murder was committed in order to carry out
or advance the commission of the crime of rob-
bery or to facilitate the escape therefrom or to
avoid detection. In other words, the special cir-
cumstance referred to in these instructions is not
established if the robbery was merely incidental
to the commission of the murder.7

The first sentence, which Pulido points to as “defining” the
special circumstance, merely named it (“murder in the com-
mission of robbery”). It is the first sentence of CALJIC 8.80.1
which actually defined the special circumstance: “[Y]ou must
. . . determine if the following special circumstance is true or
not true: that the murder was committed while the defendant
. . . was an accomplice in the commission of . . . robbery.”
Furthermore, the body of CALJIC 8.81.17 did not, as Pulido
contends, “govern” CALJIC 8.80.1. By its terms, CALJIC
8.81.17 merely set forth an additional determination for the
jury to make, not an alternative one that somehow supplanted
CALJIC 8.80.1.

[9] The sequence of these instructions also belies Pulido’s
contention that the jury would have focused on CALJIC
7
As noted above, the district court discovered a typographical error in
this instruction, which should have used the word “and” rather than “or”
between the two prongs.
20400 PULIDO v. HEDGPETH
8.81.17 to the exclusion of CALJIC 8.80.1. Because CALJIC
8.80.1—the introductory instruction—came first, the jury
would have considered it first. If the jury had believed the
late-joiner theory, it would not have found the special circum-
stance based on the introductory instruction because Pulido
did not aid and abet the murder with intent to kill, or aid and
abet the robbery with reckless indifference and as a major par-
ticipant. Having already determined that the special circum-
stance did not apply, there would have been no reason for the
jury to consider the next special-circumstance instruction,
CALJIC 8.81.17, especially in light of the judge’s admonition
to “[d]isregard any instruction which applies to facts deter-
mined by you not to exist.” Therefore, the jury would not
have even considered CALJIC 8.81.17, let alone relied on it
to convict Pulido on the invalid late-joiner theory.

B

[10] We next turn to the special-circumstance verdict form,
which stated that “[w]e, the jury . . . , find the special circum-
stance 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 [first-degree
murder], to be TRUE.” (block capitalization omitted; empha-
sis added). Although the verdict form correctly sets forth the
timing requirement, Pulido nevertheless contends that it failed
to ameliorate the instructional errors.

Pulido argues that the language of the verdict form has little
significance in the prejudice inquiry because “[i]t is the
instructions, not the verdict forms, which state the substantive
definitions of the charge.” However, given that the prejudice
inquiry must encompass “the record as a whole,” Pulido IV,
129 S. Ct. at 533 n.*, it is entirely appropriate to consider the
verdict form in conjunction with the jury instructions and the
trial record as a whole, see Cupp, 414 U.S. at 147; cf. Mills
v. Maryland, 486 U.S. 367, 375-76 (1988). The verdict form
is especially relevant because “[v]erdict forms are, in essence,
 PULIDO v. HEDGPETH 20401
instructions to the jury,” United States v. Reed, 147 F.3d
1178, 1180 (9th Cir. 1998), and thus in some cases “can cure
problems created by defective instructions,” United States v.
Alghazouli, 517 F.3d 1179, 1190 (9th Cir. 2008).

Pulido also argues that the jury would not have assumed
that the verdict form contained the authoritative definition of
the special circumstance. Therefore, contrary to the plain
meaning of the form, the jury would have simply assumed
that it encompassed the late-joiner theory. It is implausible,
however, that the jury would have cavalierly made this
assumption without seeking clarification. During delibera-
tions, the jury “demonstrated that it was not too shy to ask
questions, suggesting that it would have asked another” if
faced with a verdict form that required it to assume that the
word “during” also meant “after.” Weeks v. Angelone, 528
U.S. 225, 235-36 (2000). We therefore reject the notion of the
jury’s “extremely gullible acceptance of a result that makes
no conceivable sense.” Middleton, 541 U.S. at 438.

[11] Furthermore, the trial record refutes Pulido’s assertion
that the text of the verdict form was disregarded by the jury.
Prior to deliberations, the trial judge read the verdict form to
the jury and informed the jury that the form would be avail-
able in the jury room for “use in arriving at a verdict.” After
the jury returned its verdicts, the judge ordered the clerk to
read them all aloud and asked the jury “to listen to them
because you will be polled and asked if these are your ver-
dicts.” The clerk then read the verdicts, including the special-
circumstance verdict that Pulido “engaged in or was an
accomplice in the commission of or attempted commission of
robbery during the commission of [murder].” (emphasis
added). When polled individually, each juror affirmed that the
clerk had read his or her true verdicts. Based on the foregoing,
we cannot assume that the verdict form was a practical nul-
lity. See Humphries v. Dist. of Columbia, 174 U.S. 190, 194
(1899) (noting that the object of a jury poll “is to ascertain for
20402 PULIDO v. HEDGPETH
a certainty that each of the jurors approves of the verdict as
returned” (emphasis added)).

C

[12] Neither the introductory special-circumstance instruc-
tion nor the special-circumstance verdict form was consistent
with the late-joiner theory. If the jury had followed the court’s
instructions using its commonsense understanding of the
terms, it would not have based its special-circumstance find-
ing on the late-joiner theory. We therefore conclude that the
special-circumstance finding militates in favor of harmless-
ness.

IV

[13] We next consider whether the jury’s questions during
deliberations reflected any prejudicial effect of the instruc-
tional errors.

A

[14] During deliberations, the jury asked a series of ques-
tions about the meaning of the aiding and abetting and felony
murder instructions, CALJIC 3.01 and CALJIC 8.27. No
questions were asked, however, about the meaning of either
of the special circumstance instructions, CALJIC 8.80.1 and
CALJIC 8.80.17.

With respect to aiding and abetting, the jury first asked, “Is
‘aiding and abetting’ a robbery equivalent to a guilty conclu-
sion on count 2 of (robbery)?” The court answered, “Yes—
See attached copy of Instruction 3.01,” which defined aiding
and abetting, in relevant part, as follows:

A person aids and abets the commission of a crime
when he or she,
 PULIDO v. HEDGPETH 20403
(1) with knowledge of the purpose of the
perpetrator and

(2) with the intent or purpose of commit-
ting, encouraging, or facilitating the
commission of the crime, by act or
advice aids, promotes, encourages or
instigates the commission of the
crime.

The jury also inquired about CALJIC 8.27, the felony-
murder instruction,8 which provided:

If a human being is killed by any one of several
persons engaged in the commission or attempted
commission of the crime of robbery, all persons who
either directly and actively commit the act constitut-
ing such crime, or who with knowledge of the
unlawful purpose and with the intent or purpose of
committing, encouraging, or facilitating the commis-
sion of the offense, aid, promote, encourage or insti-
gate by act or advise its commission, are guilty of
murder in the first degree, whether the killing is
intentional, unintentional, or accidental.

The jury noted that “Felony homicide defi[ni]tion is unclear
to us. . . . Attached are two different interpretations of the
meaning of the sentence. Which is correct? A or B[?]” These
interpretations, labeled “A” and “B,” appeared as follows:
8
As noted above, the felony-murder instruction, read together with the
instruction on aiding and abetting robbery, allowed the jury to find Pulido
guilty of felony murder as a late joiner. This is because the latter instruc-
tion, CALJIC 9.40.1, provided that “[f]or the purpose of determining
whether a person is guilty as an aider and abettor to robbery, the commis-
sion of the crime of robbery is not confined to a fixed place or a limited
period of time and continues so long as the stolen property is being carried
away to a place of temporary safety.”
20404 PULIDO v. HEDGPETH
A
EITHER:
— Actively commit robbery
— Both robbery intended and facilitates by aiding

B
ANY:
— Actively commit robbery
— Robbery intended
— Facilitate by aiding

In response, the court wrote: “We suggest you reread 8.27
with the definition of aiding and abetting in mind from
instruction 3.01.”

The jury followed up by asking, “Does point 1 [of CALJIC
3.01] imply that the ‘knowledge of the purpose’ is knowledge
prior to the commission of the crime or during the commis-
sion of the crime?” The court responded, “We are unable to
answer the question as to an implication of whether ‘knowl-
edge of unlawful purpose’ must be before or during[.] You
should read 3.01 for its plain meaning in relation to all the
other instructions bearing on this point.”

Finally, the jury asked whether “ ‘actively commit the act
constituting such crime’ ” and “ ‘aid its commission’ ” in
CALJIC 8.27 referred to the robbery or the murder. The court
replied that “ ‘such crime’ refers to robbery mentioned in the
previous line of instruction 8.27.”

B

According to Pulido, these questions indicate that the late-
joiner theory “was the central focus” of the jury deliberations.
In particular, Pulido points to the questions relating to the “fa-
cilitate by aiding” prong of CALJIC 8.27 and the “knowledge
of the purpose” prong of CALJIC 3.01.
 PULIDO v. HEDGPETH 20405
[15] First, Pulido argues that the diagrams the jury drew
corresponding to the defective felony-murder instruction,
CALJIC 8.27, were intended “to confirm the availability of
the invalid theory.” Id. at 12. However, neither diagram
addresses the timing question. The difference between the
diagrams is that Diagram B would have incorrectly supported
a finding of felony murder if Pulido had merely “facilitate[d]
by aiding” without any intent to commit robbery. In other
words, the jury appeared to be grappling not with timing but
rather intent, consistent with the duress defense presented at
trial. By pointing the jury to CALJIC 3.01, which clearly
required both intent and assistance under subpart 2, the court
effectively invalidated the incorrect diagram. See Waddington
v. Sarausad, 129 S. Ct. 823, 834 (2009). Furthermore, the
guilty verdict on the robbery count confirms that the jury
rejected the duress defense and properly found that Pulido had
the requisite intent to commit robbery.

Pulido also contends that the question relating to “knowl-
edge of the purpose” in CALJIC 3.01 goes to the crux of the
timing issue. As noted above, the jury asked whether “knowl-
edge of the purpose of the perpetrator” must be “knowledge
prior to the commission of the crime or during the commis-
sion of the crime.” According to Pulido, “[t]he answer to the
jurors’ question should have been a firm, ‘Yes’: To incur
felony-murder liability, a defendant must have knowledge of
the perpetrator’s purpose and assist in the robbery before or
during the killing.”

Based on the jury’s later question whether “such crime” in
CALJIC 8.27 referred to the murder or the robbery, it is
entirely possible that the “crime” referred to in the question
was the killing. But Pulido’s reading of the question as one
calling for a yes-or-no answer—with “yes” meaning knowl-
edge before or during, and “no” meaning knowledge after—is
highly improbable. Read naturally, this is an either-or
question—must the knowledge be before, or must it be dur-
ing? If the jury question is taken at face value, it does not
20406 PULIDO v. HEDGPETH
show any reliance on the invalid late-joiner theory, given that
neither possibility contemplated by the jury is consistent with
that theory. See Pulido I, 936 P.2d at 729. All this question
shows is that the jury was asking whether premeditation was
required, which is an entirely different timing question alto-
gether.

C

[16] At most, these jury questions suggest that the jury was
uncertain about the application of the felony-murder instruc-
tion in the context of aiding and abetting. However, there is
no indication in the record that the jury imported this uncer-
tainty into its application of the special-circumstance instruc-
tions. That the jury failed to ask a single question about the
meaning of those instructions, notwithstanding the potential
internal inconsistency created by the typographical error in
CALJIC 8.81.17, indicates that it did not rely on a post-killing
aiding-and-abetting theory to convict Pulido.

V

Finally, we consider whether the evidence in the trial
record made it likely that the instructional errors had a sub-
stantial and injurious effect on the verdict.

[17] Pulido asserts that because there was “substantial evi-
dence that [he] did not join in the robbery until after the
shooting,” the jury must have relied on the late-joiner theory
in convicting him. But most of the evidence cited by Pulido
for this proposition—including the neighbor’s testimony sug-
gesting the presence of a second person at the crime scene,
evidence of Aragon’s crack cocaine use (a possible motive for
the robbery), and discrepancies in Aragon’s alibi statements—
merely supports the theory that Aragon was also involved in
the crime, and is equally consistent with Pulido’s post-killing
and pre-killing participation. The only evidence that supports
 PULIDO v. HEDGPETH 20407
Pulido’s theory as to when he joined the robbery, therefore,
is Pulido’s own uncorroborated testimony.

[18] The State presented evidence that Pulido possessed
the murder weapon both before and after the robbery. More-
over, Pulido had previously observed that the Shell station
would be easy to rob because the attendant was always asleep.
Pulido’s fingerprints—not Aragon’s—were found on the cash
register, discrediting Pulido’s claim that Aragon had carried
it out of the store. While this evidence does not definitively
establish when Pulido joined the robbery, one piece of physi-
cal evidence, in our view, is sufficient to dispel any doubt as
to whether the jury relied on the invalid theory—Pulido’s
thumbprint on the Coke can found lying on the store counter.

The Coke can corroborated the prosecution’s theory that
Pulido had used it as a diversion for the robbery, indicating
pre-killing participation. Although the defense conceded that
the Coke can “is a crucial piece of evidence,” Pulido could
not explain why his print was on the can. He denied ever
touching it that night and speculated that he must have
touched it while buying another Coke during a prior visit to
the store. Pulido’s counsel acknowledged during closing argu-
ment that “that’s not a good explanation” and suggested that
Pulido’s testimony about not touching the can was the result
of a memory lapse. He could not explain the presence of the
print, either.

[19] Pulido’s late-joiner story was at least the fourth ver-
sion of the events he had offered and found no support in any
evidence other than his own self-serving testimony. More-
over, Pulido could offer only speculation as to how his
thumbprint ended up on “a crucial piece of evidence” tying
him to the robbery before the murder. Consequently, the
record evidence fails to persuade us that the instructional
errors caused Pulido any prejudice. See Morales v. Woodford,
388 F.3d 1159, 1173 (9th Cir. 2004) (“Mere speculation is
insufficient to grant the writ under Brecht, because specula-
20408 PULIDO v. HEDGPETH
tion does not give rise to a ‘grave doubt’ whether the error
had a substantial effect in determining the jury’s verdict.”).

VI

[20] For the foregoing reasons, we can say, “with fair
assurance, after pondering all that happened without stripping
the erroneous action from the whole, that the judgment was
not substantially swayed” by the instructional errors. Kot-
teakos, 328 U.S. at 765. Because Pulido did not suffer any
actual prejudice, he is not entitled to habeas relief. See Brecht,
507 U.S. at 637.

Accordingly, the judgment of the district court is

REVERSED and REMANDED.

THOMAS, Circuit Judge, dissenting:

The question before us on remand is “what effect the error
had or reasonably may be taken to have had upon the jury’s
decision.” McKinney v. Rees, 993 F.2d 1378, 1385-86 (9th
Cir. 1993). Unlike the majority, I cannot confidently conclude
that the error did not have a “substantial and injurious effect.”
See Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).
Accordingly, I respectfully dissent.

We can rarely say with certainty what effect an error had
on a jury’s verdict. But here we have the luxury of some cer-
tainties. Because the jury hung on the issue of whether Pulido
used a gun, we know the jury did not unanimously accept the
prosecution’s primary theory of the case, which was that
Pulido was the shooter. Therefore, we also know that at least
some jurors voted to convict on an aiding-and-abetting theory.
And it is undisputed that erroneous state court jury instruc-
tions permitted the jury to find Pulido guilty of felony murder
 PULIDO v. HEDGPETH 20409
on the invalid theory that he formed the intent to aid and abet
the underlying felony only after the murder. Indeed, the State
concedes both that the state court committed constitutional
error in its jury instruction and that the jury found felony mur-
der improperly. Viewing the record as a whole, the undis-
puted constitutional error was not harmless under Brecht. See
Hedgpeth v. Pulido, 129 S. Ct. 530, 536-37 (2008) (Stevens,
Souter, & Ginsburg, JJ., dissenting).

I

A

The trial court’s instructions regarding special circum-
stances did not render the errors in the felony murder instruc-
tions non-prejudicial, as they still permitted the jury to find
the special circumstance based solely on the theory that
Pulido aided and abetted the robbery as a major participant
and with reckless indifference to human life. The jury might
have found that Pulido was a major participant and acted with
reckless indifference based solely on his post-shooting
actions.

The Supreme Court has instructed us that a “ ‘single
instruction to the jury may not be judged in artificial isolation
but must be viewed in the context of the overall charge.’ ” See
Middleton v. McNeil, 541 U.S. 433, 437 (2004) (quoting
Boyde v. California, 494 U.S. 370, 378 (1990)). But, contrary
to the majority’s assessment, the constitutionally flawed mur-
der instruction infected other instructions that otherwise
would probably have been clear. That infection permitted the
jury to make the logical progression from a finding of post-
shooting aiding and abetting to a finding of post-shooting
murder liability to a finding of post-shooting robbery felony-
murder special circumstance.

The trial court specifically instructed the jury that aider-
and-abettor liability for robbery “continues so long as the
20410 PULIDO v. HEDGPETH
stolen property is being carried away to a place of temporary
safety.” CALJIC 9.40.1. Everyone agrees the district court did
not instruct the jury that this definition of aider-and-abettor
liability attaches only to the robbery count, and that the rele-
vant assistance for felony-murder purposes must begin before
or during the robbery and murder. That is part of the constitu-
tional error in this case. Nor was there any reason for the jury
to know that this definition was irrelevant to the special-
circumstance instructions. To the contrary, the jury had been
instructed specifically that it could find special circumstances
if “with reckless indifference to human life and as a major
participant, [Pulido] aided, abetted, counseled, commanded,
induced, solicited, requested, or assisted in the commission of
the crime of robbery . . . which resulted in the death of a
human being.” CALJIC 8.80.1 (emphasis added).

B

The majority looks to the special-circumstances instruction
and reasons the jury could not possibly have concluded that
Pulido acted “with reckless indifference to human life and as
a major participant, aided, abetted, . . . or assisted” in the rob-
bery. I respectfully disagree.

The California Supreme Court has explained that “the gen-
erally accepted meaning of the phrase, ‘reckless indifference
to human life,’ in common parlance . . . conveys to the jury
the requirement of a defendant’s subjective awareness of the
grave risk to human life created by his or her participation in
the underlying felony.” People v. Estrada, 904 P.2d 1197,
1203 (Cal. 1995). The meaning of the phrase is clear enough
that it need not be defined for a jury. See id. (explaining that
the phrase “does not have a technical meaning peculiar to the
law”). But it does not require that the prosecution show that
the defendant was indifferent to any specific human life. Nor
does it add a contemporaneity requirement. Rather, it is typi-
cally accompanied by an instruction that the special circum-
stance only applies if the murder occurred “while” the
 PULIDO v. HEDGPETH 20411
defendant was participating in the robbery (again, no such
instruction was given here). In turn, the defendant’s intent to
commit the underlying felony, combined with the general
indifference he shows in engaging in the crime in the first
place, which both precede the specific homicide, render the
defendant culpable for murder.

Absent the contemporaneity requirement typically included
in the special circumstance instruction, and in tandem with a
prior erroneous instruction that the defendant could be guilty
of murder if he did not join a robbery until after the victim
had been shot, “reckless indifference to human life” could
encompass the act of assisting a convicted felon who is possi-
bly high on crack cocaine drive away from a robbery with a
loaded gun, where that person has already shot one person
and apparently would not have a problem harming anyone
else who stands in the way of his escape. In other words, a
juror might have concluded that Pulido was recklessly indif-
ferent to the victim’s life, or to human life more broadly, even
if he or she believed the victim was already dead before
Pulido participated in the robbery.

C

The majority concludes the jury’s uncertainty regarding the
felony-murder instructions had no bearing on its understand-
ing of the special-circumstance instructions. The record, how-
ever, demonstrates the jury’s deep seated confusion as to both
the erroneous instructions and the instructions for special cir-
cumstances.

The three jury questions reveal that the jurors were strug-
gling with the requirements of aider-and-abettor liability,
felony-murder, and the special circumstance robbery-murder.
See, e.g., Shafer v. South Carolina, 532 U.S. 36, 52-53 (2001)
(jury inquiry may provide evidence of jury confusion); Sim-
mons v. South Carolina, 512 U.S. 154, 178 (1994)
(O’Connor, J., concurring) (same); Bollenbach v. United
20412 PULIDO v. HEDGPETH
States, 326 U.S. 607, 611-12 (1946) (same). The jury inquired
about the meaning of the special circumstance instruction.
Indeed, the jury requested “instructions special circumstances
for both count 1 and count 2.” This inquiry demonstrates the
jury’s confusion, given that the special circumstance does not
attach to either count, but rather is intended to be a special
finding of contemporaneity between the two counts. This
question is especially important given the State’s argument
that the special circumstance finding implicitly incorporated
a finding of contemporaneity.

The jury’s question of 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” demonstrates that some jurors were confused as to
the timing requirements for aider-and-abettor liability. That is,
they were 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. This
question is especially important because the jury was permit-
ted to find special circumstances based on an aider-and-
abettor theory, and, as it was instructed, aider-and-abettor lia-
bility “continues so long as the stolen property is being car-
ried away.” The jury’s question as to whether it could find
felony murder based solely on actual “facilitat[ing] by aid-
ing,” or whether it must also find that Pulido intended for the
robbery to occur, also demonstrates that at least some jurors
believed that Pulido might have developed knowledge and
intent only after the actual theft had occurred.

Important to the question of prejudice, the judge did not
answer any of those questions directly. Instead, he merely
referred the jurors back to their flawed and inconsistent
instructions. The fact that the jury did not continue to ask for
clarification does not imply it needed no more help. See
Weeks v. Angelone, 528 U.S. 225, 234 (2000) (“Given that
petitioner’s jury was adequately instructed, and given that the
trial judge responded to the jury’s question by directing its
 PULIDO v. HEDGPETH 20413
attention to the precise paragraph of the constitutionally ade-
quate instruction that answers its inquiry, the question
becomes whether the Constitution requires anything more.”);
Morris, 273 F.3d at 842 (“Also unpersuasive is the argument
that, because the jury asked for only a general explanation of
special instruction 60, there is no way to be sure what the jury
was confused about.”).

The majority’s rationale implies this is a case of a technical
error requiring only a technical fix. Not so. The instruction for
murder was patently incorrect. The jury repeatedly expressed
its confusion to the presiding judge who responded to the
jury’s notes without clarifying the question of timing ade-
quately. Its questions refute the argument that the jury under-
stood and applied the contemporaneity requirement that was
formally included in the verdict form. It is 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.1

The majority maintains that the use of the word “during” in
the special-circumstance verdict form ameliorates any error.2
1
The State argues that it is not reasonably probable that the jury used
a post-killing aiding and abetting theory to reach the special circumstance
finding. This is a slight misstatement of the Brecht standard. In the face
of conflicting evidence and testimony, jurors do not necessarily decide
‘what happened’ or reach a verdict based on one single narrative of events
that they accept as true. See, e.g.,CALJIC 8.80.1 (instructing jury in case
it is “unable to decide whether the defendant was the actual killer or an
aider-and-abettor”). In contemplating different possible scenarios, a jury
may find beyond a reasonable doubt that, whatever happened, it fitted into
the broad definition of the crime with which the defendant has been
charged. The question is not whether some jurors determined that Pulido
definitely did not form the intent to join the robbery until after the clerk
was killed, but rather how likely it is that they harbored some reasonable
alternative theories about the timing, theories which, if properly instructed,
they would have known were actually reasonable doubts about Pulido’s
guilt of felony murder.
2
The special-circumstance verdict read that Pulido “engaged in or was
an accomplice of or attempted commission of robbery during the commis-
sion of [murder].”
20414 PULIDO v. HEDGPETH
But the assumption that this isolated reference to contempora-
neity somehow eclipses both the admitted constitutional error
and the manifest jury confusion violates the very rationale
that the majority relies upon—“[W]e accept at the outset the
well established proposition that a single instruction to a jury
may not be judged in artificial isolation, but must be viewed
in the context of the overall charge.” Cupp v. Naughten, 414
U.S. 141, 146-47 (1973).

D

The majority agrees with the State that the evidence does
not support Pulido’s theory of the case. In particular, the
majority suggests the fingerprint found on the Coke can is
fatal to Pulido’s prejudice argument and that Pulido did not
articulate a satisfactory explanation for the presence of the
fingerprints on the can.

While it is true that the most plausible explanation for the
presence of the fingerprint is that Pulido brought it to the
counter as a distraction before the theft and shooting, it is not
the only plausible explanation. That a defense attorney may
limit the number of theories he proposes does not in turn limit
the jury’s ability to consider plausible alternate explanations
—such as the possibility that Pulido moved the Coke can,
which was on the counter, when he went to grab the cash reg-
ister, which presumably was also on the counter, and upon
which Pulido’s fingerprints were also discovered.

Moreover, the jury’s third question—whether it could find
felony murder based solely on actual “facilitat[ing] by aid-
ing,” or whether it must also find that Pulido intended for the
robbery to occur—clearly indicates that at least some jurors
had reasonable doubts about the State’s proffered explanation
for the fingerprint. If the jury had accepted the prosecutor’s
explanation, that Pulido brought the Coke can to the counter
as a distraction, it would almost certainly have concluded that
Pulido actually intended for the robbery to occur. If Pulido
 PULIDO v. HEDGPETH 20415
were inside the store during the robbery but did not know his
uncle’s plans in advance, however, and Aragon took advan-
tage of the distraction that Pulido incidentally provided when
he actually attempted to purchase the Coke, then Pulido
would arguably have facilitated the robbery by helping his
uncle, without actually intending for the robbery to occur.

Similarly, the State argues that, if the jury believed Pulido
carried out the cash register voluntarily, he must have been
aiding and abetting the robbery from the beginning. It is cer-
tainly plausible, however, that Pulido—a sixteen year old boy
who owned a gun, who was to steal a car two weeks later, and
who lived with an uncle with a criminal record and a possible
crack cocaine addiction, Pulido, 2005 WL 6142229, at *1-*3
—heard the gun shot, realized that his uncle was holding up
the gas station, and decided to help.

Jurors are not required to accept one or another proffered
explanation of the evidence, but rather are called upon to
weigh and evaluate the evidence for themselves in light of the
law as explained to them by the court. In this case, the law
was explained improperly, and I cannot reasonably conclude
that the error did not substantially and injuriously effect the
verdict.
II
The instructions allowed for a conviction for felony-murder
and a finding of special circumstance robbery-murder even if
Pulido became a knowing participant only after the robbery
and shooting were completed. The jurors’ questions suggest
that at least one juror would have voted to acquit Pulido of
felony-murder and special-circumstance charges if the jury
had been properly instructed that contemporaneity was a nec-
essary finding. Like the district court, the record in this case
leaves me with “grave doubt” as to whether the erroneous
instructions had a substantial and injurious effect on the jury’s
verdict.
Accordingly, I respectfully dissent.