*1 HEDGPETH, WARDEN v. PULIDO Argued No. 07-544. October 2008 Decided December Jeremy Deputy Attorney Friedlander, General Califor- *2 argued petitioner. him on the briefs nia, cause for With Attorney Brown, Jr., General, were Edmund Dane R. Gil- G. Attorney lette, General, Medeiros, Assistant Manuel Chief Engler, Assistant General, State Solicitor Gerald A. Senior Attorney Deputy General, Nicola, Donald E. de State Solici- Peggy Rujfra, Supervising Deputy General, tor and S. Attor- ney General. argued
Pratik A. the cause for the Shah United States urging amicus curiae him on the brief were reversal. With Clement, former Solicitor former Assistant Attor- General ney Deputy Fisher, Dreeben, General General and Solicitor Deborah Watson. Bradley by appointment O’Connell, Court,
J. of the 552 respondent.* U. S. the cause and filed a brief for Per Curiam. general subject
A conviction based on a is verdict to chal- lenge jury if the was instructed on alternative theories of guilt may Stromberg and have on an relied invalid one. See (1931); v. California, States, U. S. Yates v. United (1957). Appeals In this case the Court for the Ninth Circuit held that such an error is “structural requiring error,” that the convictionbe set aside on collateral regard review without to whether the flaw in the instruc- prejudiced parties agree tions The now defendant. wrong categorize type the Court of They agree reviewing error as “structural.” further that a finding court such error should ask whether the flaw in the instructions “had substantial effect influence or determining Abrahamson, Brecht verdict.” v. (1993) omitted). (internal quotation 507 U. S. marks agree We as well so hold. Scheidegger
*Kent S. Legal filed a brief for the Criminal Justice Founda- tion as amicus curiae urging reversal.
Respondent
Michael Pulido was convicted
a California
jury
felony
appeal,
sought
On
murder.
direct
Pulido
ground
his
vacate
conviction on the
instructions
They permitted
guilty
were erroneous:
to find him
felony
if he
murder
formed the intent to aid and abet the
underlying felony
they
permitted
the murder,
before
but
also
guilty
only
to find him
if he formed that intent
after
Supreme
agreed
the murder. The California
Pulido
the latter
was invalid under California
upheld
ground
but
law,
the conviction
that Pulido was
prejudiced by
People
the error.
4th
Pulido,
Cal.
sought
713, 727,
Both Yates were decided we and before con- (1967), Chapman cluded in California, v. Accordingly, errors constitutional can be harmless. neither Stromberg nor Yates reason address the in- had whether they structional errors could be reviewed for identified required harmlessness, or instead automatic reversal. In a -Chapman post we cases, however, series of concluded that not various of instructional error are structural but forms subject to See, instead trial errors harmless-error review. (1999) (omission g., States, 527 1 of e. Neder v. United U. S.
61 offense);. Roy, element an 2 an of v. 519 U. S. California curiam) (1996) (erroneous (per aider and abettor instruc- (1987) (misstatement tion); Pope Illinois, 481 497 v. U. S. (1986) offense); Clark, an element of an 478 Rose v. U. S. 570 (erroneous offense). shifting burden to an element an as
Although these in cases did not arise the context of a multiple guilt, instructed on theories of one which is im- proper, nothing suggests in them that a different harmless- analysis govern particular error should in that context. To contrary, emphasized we in Rose that “while there are [harmless-error analysis] some errors to which does they apply, exception are the not the rule.” analysis applies And Neder makes clear that harmless-error long to instructional errors so as the error at issue does not “ categorically ‘vitiat[e] findings.’” S., all the 527 U. (quoting 11 Louisiana, 275, Sullivan v. 508 U. S. (1993) (erroneous reasonable-doubt instructions constitute error)). arising structural Aminstructional error in the con- multiple guilt text of theories no more vitiates all the jury’s findings than does omission or an misstatement of ele- only ment of the offense when one is submitted. drawing alternative-theory fact, between distinction Roy, Pope, error Neder, and the instructional errors in “patently illogical,” given Rose would be that such a distinc “ strange that, tion ‘reduces claim because ... “good” charge charge received both a and a “bad” on the pernicious issue, the error was somehow more than . . . only charge where the on the critical issue was mistaken ” (O’Scannlain, concurring spe one.’ 487 F. 677-678 J., 1987) (CA1 cially) (quoting Quigley Vose, 834 F. 2d curiam)); (per States, see also Becht v. United 403 F. 3d (CA8 2005) (same), denied, cert. U. S. agrees Ap- Pulido now with the State that the Court peals treating erred the instructional this case required prejudice should structural, and that *5 governed effect” be Brecht’s “substantial (“[T]he Respondent Ninth Cir- standard. Brief for See nomenclature”); in its defect’ cuit was mistaken ‘structural (“Weacknowledge Arg. a trial error is Tr. of Oral standard”). prejudice subject do we. So is to the Brecht because the we should affirm Pulido nonetheless maintains analysis, effectively engaged Appeals in the Brecht of description despite of error “structural.” clear its despite briefing applicability Brecht, the full on the of But only briefly Appeals footnote, in a Brecht Court of mentioned agree on to see 487 n. and then went F. error that “the instructional Pulido’s alternative assertion subject error to harmless was structural and therefore con court also stated that the review,” id., at 675-676. The unless the court was “‘abso viction had to be overturned ” lutely ground. certain’ that the relied a valid finding appear to be a a determination would Such any all, rather than that that no had occurred at violation certainty” any event, an “absolute error was harmless. Accordingly, plainly with Brecht. standard is inconsistent express entitled to habeas we no view on whether is applica Appeals for relief, but rather remand the Court tion of in the first instance.* Brecht judgment is remanded for vacated,
The is and the case proceedings opinion. further consistent with this is so ordered.
It searching Appeals “undertook *The dissent maintains the Court parties’ instructions to determine the review of the evidence and J.). Post, Stevens, at But the jury.” (opinion effect on the error’s solely on the existence of Court of reached its conclusion based instructions, special without typographical circumstances error was addressing any arguments typographical the State’s for that light There no need harmless in of the record as a whole. course, because of its mistaken con- arguments, court to address those Under such circum- the instructional error was structural. clusion stances, is appropriate remand course.
Justice Stevens, with whom Justice Souter and Jus- Ginsburg tice join, dissenting.
The Court of
misused the term “structural error”
opinion affirming
in its
granting
District Court’s order
application
Pulido’s
corpus.
for a writ of habeas
But the
inconsequential
court’s misnomer was
because its decision
substantially
rested on
the same
as the District
correctly applied
Court’s, which
the standards set forth in
(1946),
Kotteakos
States,
v. United
Brecht v.
(1993),
Abrahamson,
Respondent charged felony Michael Pulido was mur- robbing gas killing der for a station and the attendant. At trial, the State that Pulido acted alone. Pulido principal maintained that his uncle was the actor and he knowledge plan had no of his uncle’s when the two arrived gas waiting at the station. While he was in the car, Pulido claimed, he heard a shot and ran into the At that store. point, help pry open his uncle insisted that Pulido him register dispose reluctantly stolen cash of it, and Pulido complied. jury felony The convicted murder, but it charges was unable to reach a verdict that Pulido personally intentionally great used a firearm and inflicted bodily harm. felony-murder liability
a As matter of law, California ex- persons jointly engaged tends to all in the a commission of felony killing joint at the time of a when one actors design. People Pulido, kills furtherance of the common per- 4th 713, 716, Cal. 936 P. 2d But a guilty felony only “late-joining” son is not if murder he is e., aider and abettor —i. if he the mur- did himself commit underlying felony participation in the did not der and his begin case, Ibid. In this until after the victim was killed. erroneously permitted the trial court’s instructions theory, they require guilty on did not to find Pulido such or committed the murder to find either that Pulido underlying robbery before that he and abetted aided allowed committed. Because the instructions murder was felony for conduct that to convict Pulido of murder *7 constitu- offense, that their inclusion was does not amount to tional error. Supreme agreed appeal, the Court
On direct California theory late-joiner theory invalid with Pulido that the was an felony-murder liability. that It nevertheless held Ibid. any Ac- error in the court’s instructions was harmless. trial cording jury been the found that Pulido had court, to the engaged robbery killing the in at the time of the because the robbery-murder special-circumstance stated that instruction was en- “the murder was committed while the defendant [a] gaged” attempted in the of or commission “commission (citing robbery.” Penal 2d, at 936 P. at 1243 Cal. 727, omitted)). 190.2(a)(17)(internal § quotation marks Code Ann. portion instruction, the the court concluded Based on that special-circumstance the that the verdict “demonstrates robbery only accept joined [Pulido] did not [the victim] that Pul- after and it therefore held killed,” prejudiced 4th, ido was not the error. 15 Cal.
P. 1244. reaching Su- conclusion, however, that California special- preme the entire failed to take into account Court typographical in- in that A circumstance instruction. special permitted struction in fact find robbery-murder that true if it found either circumstance of engaged while the defendant was the murder was committed robbery or that it “was committed in the commission of a carry of the crime the commission order to out or advance robbery escape or to avoid or to facilitate the therefrom finding entirely late-joiner detection”—a consistent with the theory. App. Thus, concedes, 14. as the State the errone- “reasonably likely” ous made it instructions theory. impermissible on convicted Pulido Brief for Petitioner 18. exhausting postconviction
After his state remedies,1 sought corpus writ of habeas in Federal District recognized Court. The District Court the erroneous dis junctive special-circumstance in the instruction that the Cali Supreme fornia Court had overlooked, and it held that the prejudiced by state court’s conclusion that Pulido was not objectively ap erroneous instructions was “an unreasonable plication clearly federal established law.” Pulido v. La (ND (PR) marque, 2005), No. C 99-4933 Cal., CW Mar. App. to Pet. for Cert. 64a.
The District then Court considered the effect of that error jury. Correctly relying on Brecht, District began analysis by noting petitioner its federal habeas “is entitled to habeas relief unless the State court’s error prejudice, resulted in is, actual the error had a ‘substan- determining tial and effect or influence in *8 App. (quoting verdict.’” to Pet. for 65a Brecht, Cert. 507 637). S., at an U. If error influence, had substantial or if evenly judge “the record is so balanced that a conscientious ” ‘grave is in doubt’ as to it an whether had such the effect, App. conviction be must to for reversed. Pet. Cert. 65a 438). (quoting 513 O’Neal, S., U. at To determine whether the error was harmless under this including standard, record, the District Court scrutinized the arguments parties, supporting the of both the evidence their respective jury case, theories the the instructions, the jury’s questions parts to the court, trial and the various jury’s App. of the verdict. to Pet. for Cert. 65a-66a. 1 summarily petition The Supreme California Court denied Pulido’s state Chrones, See Pulido corpus. for writ of 487 F. 3d habeas curiam). (CA9 2007) (per inquiry, properly Throughout District avoided this the jury’s. substituting judgment in for the As we cautioned its undertaking “it is not in Kotteakos, harmless-error [reviewing] guilt inno- the or court’s function to determine speculate upon probable and is reconviction Nor it to cence. speculation according to how the comes out.” decide (citations omitted). inquiry “[t]he cannot Thus, S.,U. at merely enough support result” be the whether there was proper Rather, the in the absence the error. question error had influ- is “whether the itself substantial grave so, the conviction doubt, ence. If or if one is left Ibid.; accord, O’Neal, S., cannot stand.” U. 437. precisely by question the District That was the addressed actually sought what the Court when it to ascertain “possible” it that The court concluded while is that, found. robbery the that Pulido and abetted found aided way deter- killed, the victim was the court had “no before App. mining to Pet. for Cert. whether case.” “ uncertainty ‘grave 66a. Because that left the court likely [the] ver- doubt as to the effect ” faithfully applied it Kot- dict,’ standard mandated teakos and that error was not harmless. O’Neal found 435). App. (quoting O’Neal, S., Pet. for Cert. 66a 513 U. appeal, judgment of Dis- On contended that the trict be Court should affirmed whether the instructional Brief error was as structural error or as trial error. viewed (CA9), Appellee Cross-Appellant for in No. 05-15916 etc. Brief). (hereinafter pp. Appellee’s He that 53-64 because the error was harmless under Brecht and O’Neal supported the invalid substantial evidence Ap- likely made him on that basis. it convicted pellee’s particular, Brief Pulido noted that 55-64. *9 “injurious type greatest “is when effect” of this by appearing compromises extend instruction defense by liability suggested the de- even factual scenario to .the
67 (internal evidence,” fense in Id., was true this case. at 57 deleted). quotation emphasis argu- marks omitted; At oral parties’ similarly ment, contentions focused on the ánalysis Brecht standard and the result that harmless-error required. argument,
Less than two months after oral and before the Court of issued its a case, decision different panel Ryan, of the Ninth Circuit decided Lara 455 3d F. attempted 1080 Lara was convicted of murder guilty that had been instructed that it could find him express implied under either an malice or an malice theory, legally the second of which is Id., invalid.
The Ninth Circuit described erroneous instruction as a “structural but error,” it held that such an error does not reviewing necessitate reversal when “determine court can certainty” with absolute that the defendant was not con- theory. victed under the Id., erroneous at 1086. Because specificfinding attempted “made a that Lara to mur- willfully, deliberately, premeditation,” der and with the court necessarily concluded that it relied the valid instruc- required. tion and that reversal therefore at 1086-1087.
In those limited instances in which this Court has found an error “structural,” we have so done because the error analysis by defies harmless-error standards. See Arizona (1991); v. Fulminante, 499 279, U. S. see also United (2006) Gonzalez-Lopez, (quoting States v. 140, 548 U. S. (1993); Sullivan v. Louisiana, 508 U. S. United (1984)). Cronic, States v. 648, 659, U. S. and n. 25 In- consequences necessarily deed, it is because the un- “‘are quantifiable and indeterminate’” that automatic reversal is required Gonzalez-Lopez, when such errors occur. 282). (quoting S.,U. at 150 That the Sullivan, S., 508 U. “ ‘“absolutely court in Lara could be certain” upon legally theory,’” relied correct 455 F. *10 susceptible harmless-error of the error was both that
shows harmless analysis the error court in fact found and that the referring repeatedly despite to it as “structural.” opinion per Appeals’ Citing curiam Lara, the Court a structural in this case erroneous instruction labeled the searching the court then undertook Lara, As in error.2 parties’ instructions to evidence and the the review of among jury. Noting, effect on the the error’s determine contempo- typographical things, “[t]he in the that other Supreme upon by raneity relied the California instruction any from into inference to be drawn introduces doubt Court finding special jury’s circumstance,” the court as to the the open possibil- leave the that “the instructions concluded legally impermissible ity the convicted Pulido on (CA9 2007) theory.” Chrones, 487 F. 3d Pulido v. curiam). possibility (per That of reliance on the erroneous injurious effect” to which instruction is the “substantial Appeals although Thus, called Brecht refers. by wrong performed name, it sub- the error in this case stantially conclusion the same and reached same pre- applied did when it the standard as the District Court scribed Brecht.3
Judge
separately both to defend the
Thomas concurred
analy-
to demonstrate that harmless-error
Lara decision and
supports
panel’s
3d,
result. 487 F.
at 678-
sis also
Judge
applied
Thomas
Court,
683. Unlike the District
Appeals’ opinion
asserts that Pulido
that the error
The Court
(CA9 2006). But
Ryan,
under Lara v.
The record before us that conclusion. In- petitioner ambiguity deed, even admits that the in the rob- bery confusing and murder instructions and the trial court’s jury’s questions answers to the “combined make it reason- ably likely jury applied the instructions in an uncon- way.” stitutional Brief for Petitioner 18. That reasonable support likelihood is sufficient to the conclusion that the error was not harmless under Brecht. analysis
Because the District Court’s was correct Appeals’ substantially result was I think same, obtaining purpose Court’s decision remand for third issue harmless-error is a misuse of judicial judg- scarce I resources. would therefore affirm the Appeals. ment of the Court of