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Submission withdrawn August 1, 2006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.