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

487 F.3d 669, 2007 U.S. App. LEXIS 12437, 2007 WL 1544505

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 30, 2007
• Docket: 05-15916, 05-16308
• Status: Published

Opinions

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 single .45-caliber bullet, killing him within seconds. A neighbor heard a loud bang coming from the direction 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 roadside 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, defendant volunteered that he had information about the Shell station robbery. He led police to a location where they found discarded, unused .45-caliber cartridges, 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 telephone 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 defendant 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. Aragon 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 contributing 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, Sunday, 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 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. Defendant denied he had, but a few days later, when Aragon 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 killing. 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 station 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,. Aragon told defendant to open the register. When defendant 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 Aragon’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 detective 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, Ar-agon said to Moore, “That’s when I was with you, remember?”

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 circumstances. See Cal. PemCode § 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, 15 Cal.4th 713, 63 Cal.Rptr.2d 625, 936 P.2d 1235.

After filing various habeas petitions in the California superior 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 petition on the grounds of prejudicial instructional error. The district 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 instructions constituted prejudicial constitutional error and that the state court decision affirming his conviction was both contrary to and an unreasonable application of clearly established federal law.² More specifically, Pulido claims that because of 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 responds that the California courts reasonably affirmed the verdict because the jury’s special circumstance finding incorporated a contemporaneity finding.

The jury instructions in this case covered murder (California 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.

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 63 Cal.Rptr.2d 625, 936 P.2d at 1238-43; id. 63 Cal.Rptr.2d 625, 936 P.2d 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 presented 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. 63 Cal.Rptr.2d 625, 936 P.2d at 1243-44.

Second, the State concedes that one of the murder-robbery special circumstance instructions was invalid. The district court discovered a typographic error: the jury instructions substituted “or” for “and” in CALJIC 8.81.17, erroneously enlarging the scope of activity that would qualify as murder-robbery under the special circumstance.⁴

The California Supreme Court concluded that any instructional error was harmless because the special circumstance verdict required the jury to make the necessary contemporaneity determination:

[Defendant cannot demonstrate prejudice from the asserted instructional error: “[T]he factual question posed by the omitted instruction was necessarily resolved adversely to defendant under other, properly given instructions.” (People v. Sedeno, [10 Cal.3d 703, 112 Cal.Rptr. 1, 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 found “that the said defendant, Michael Robert Pulido, engaged in or was an accomplice in the commission of or attempted commission of robbery during the commission of crime charged in count 1 [murder].” (italics added.) By its special circumstance verdict the jury thus found — explicitly, unanimously and necessarily — that defendant’s involvement in the robbery, whether as direct perpetrator 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 commission of robbery during the commission of [murder],” 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 duration of robbery and liability of accomplices for first degree felony murder. Defendant contends these instructions permitted the jury to convict him of 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, [4 Cal.4th 1116, 17 Cal.Rptr.2d 365, 847 P.2d 45, 53 (Cal.1997) ].) As shown above, the jury’s true finding on the robbery-murder special circumstance so demonstrates.

Pulido, 63 Cal.Rptr.2d 625, 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. Paradoxical 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 satisfied. Nowhere was this erroneous description of the requirements for finding the special circumstance corrected. Thus, the California Supreme Court’s conclusion that the jury “necessarily” found the defendant guilty on a proper theory does not follow.

C

Pulido urges, and the district court agreed, that the California Supreme Court decision was contrary to federal law because it improperly applied harmless error analysis. In particular, Pulido contends that under our court’s recent decision in Lara v. Ryan, 455 F.3d 1080 (9th Cir.2006) (decided subsequent to the district court proceedings in this case), the instructional error was structural and therefore not subject to harmless error review. In Lava, 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. , 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and this court’s decision in Keating v. Hood, 191 F.3d 1053 (9th Cir.1999), we held that such error was structural 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, deliberately, and with premeditation it was absolutely certain that the jury had not convicted on the improper implied-malice theory.

Here, the jury instructions leave open the possibility that the jury convicted Puli-do on a legally impermissible theory, namely, that the defendant joined the robbery only after Flores was killed. The typographical error in the contemporaneity 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 contemporaneously 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 alternative claims for relief.

Ill

For the foregoing reasons, the decision of the district court is AFFIRMED.

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, •— Fed.Appx.-, 2007 WL 1600626 (filed 9th Cir. May 30, 2007).

2 . Because Pulido filed his habeas petition after April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA”) governs 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 decision 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, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The burden of proof rests with the petitioner, see Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam), and for each claim, we analyze the last-reasoned state court opinion, see Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (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, 120 S.Ct. 1495. 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, 120 S.Ct. 1495.

A state court’s decision involves an "unreasonable application” of federal 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 unreasonable,” not merely incorrect. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (citing Williams, 529 U.S. at 409, 411, 120 S.Ct. 1495). Even the federal court's "firm conviction” that the decision was "erroneous” is an insufficient basis on which to grant relief. Id. at 75, 123 S.Ct. 1166 (citation omitted).

3 . In evaluating an allegedly erroneous jury instruction, we first determine whether the error, if any, amounted to constitutional error. See Morris 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, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)).

4 . CALJIC 8.81.17, as delivered to the jury, reads:

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 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 facilitate the escape therefrom or to avoid detection. In other words, the special circumstance referred to in these instructions 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”).