Pulido

Opinion by Judge O’SCANNLAIN; Dissent by Judge THOMAS.

OPINION

We must decide whether erroneous jury instructions in a state murder trial were prejudicial as a matter of federal Constitutional 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 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 Pu-lido’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…

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 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (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 certainties. 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 instructions permitted the jury to find Pulido guilty of felony murder 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…

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

Jeremy Friedlander, Deputy Attorney General, San Francisco, CA, 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 Assistant Attorney General; Gerald A. Engler, Senior Assistant Attorney General; and Peggy S. Ruffra, Supervising Deputy Attorney General, San Francisco, CA.

Before: ALFRED T. GOODWIN, DIARMUID F. O'SCANNLAIN and SIDNEY R. THOMAS, Circuit Judges. [*]

Opinion by Judge O'SCANNLAIN; Dissent by Judge THOMAS.

O'SCANNLAIN, Circuit Judge:

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

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] 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…