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

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:

People v. Pulido, 15 Cal.4th 713 , 63 Cal.Rptr.2d 625 , 936 P.2d 1235, 1237-38 (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 robbery felony-murder, under Cal.Penal Code § 190.2(a)(17)(I). The jurors deadlocked on allegations that Pulido personally used a firearm and personally inflicted great bodily injury as defined by Cal. PemCode §§ 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 possibility of parole for murder with special…

concurring specially.

I agree with the majority that our recent decision in Lara v. Ryan, 455 F.3d 1080 (9th Cir.2006), compels us to affirm the district court’s grant of habeas relief. I write separately, however, because I believe this circuit’s instructional error jurisprudence cries out for review, preferably by our court sitting en banc, or if not, by the Supreme Court.

I

In Lara , we rejected the state’s argument that instructional errors of the sort at stake in this case (involving the possibility of conviction on legally impermissible grounds) should be reviewed for harmless error under the standard set forth in Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). Lara, 455 F.3d at 1086 . Chapman stands for the principle that a federal constitutional error may be held harmless if a court is “able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman, 386 U.S. at 24 , 87 S.Ct. 824 . Instead, purportedly relying on Sandstrom v. Montana, 442 U.S. 510 , 99 S.Ct. 2450 , 61 L.Ed.2d 39 (1979), we held in Lara that because the error at stake “enabled the jury to deliver a general verdict that potentially rested on different theories…

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 standard. I also write to express my respectful disagreement with 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 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (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 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (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 , 119 S.Ct. 1827 (“Of course, safeguarding the jury guarantee will often require that a reviewing court conduct a thorough examination of the…

487 F.3d 669 Michael Robert PULIDO, Petitioner-Appellee, v. Chris CHRONES, Warden, Respondent-Appellant. Michael Robert Pulido, Petitioner-Appellant, v. Chris Chrones, Warden, Respondent-Appellee. No. 05-15916. No. 05-16308. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 13, 2006. Submission withdrawn August 1, 2006. Resubmitted and Filed May 30, 2007. Jeremy Friedlander, Deputy Attorney General, San Francisco, CA, 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. Ruffra, Supervising Deputy Attorney General were on the briefs. J. Bradley O'Connell, San Francisco, CA, argued the cause for the petitioner-appellee and was on the brief. Appeal from the United States District Court for the Northern District of California; Claudia Wilken, District Judge, Presiding. D.C. No. CV-99-04933-CW. Before: ALFRED T. GOODWIN, DIARMUID F. O'SCANNLAIN, and SIDNEY R. THOMAS, Circuit Judges. PER CURIAM. 1 We must consider whether a state court erred in affirming a conviction for murder. 2 * Michael…