Pulido v. Chrones

629 F.3d 1007, 2010 U.S. App. LEXIS 25907, 2010 WL 5157164
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 21, 2010
Docket05-15916
StatusPublished
Cited by57 cases

This text of 629 F.3d 1007 (Pulido v. Chrones) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pulido v. Chrones, 629 F.3d 1007, 2010 U.S. App. LEXIS 25907, 2010 WL 5157164 (9th Cir. 2010).

Opinions

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

OPINION

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.

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 asleep. Aragon and Moore testified that [1010]*1010when they got up at 3 a.m. on the morning of the robbery to care for their baby, Pulido was not at home. However, when they awoke later that morning, Pulido was in the living room, already dressed. Pulido showed Aragon his wallet and said, “Look unc, almost all ones.” Later that day, Moore insisted that Pulido dispose of his gun. Pulido took the gun apart and discarded most of the pieces. Moore retained some of the pieces to prevent reassembly and turned them over to police, who determined that they came from a .45-caliber Colt.

When Pulido was arrested on an unrelated auto theft charge two weeks later, he told police he had information about the robbery and murder. He led police to some discarded .45-caliber cartridges with ejection marks resembling those on a cartridge found at the gas station. He also made several inconsistent exculpatory statements to police, first blaming a drug dealer named Carlos Vasquez, then his stepfather, Eduardo Alarcon, and finally, an unidentified Tongan male for the robbery and murder. Aragon testified, however, that Pulido had confessed to the crimes while the two were having dinner at a pizza parlor. Pulido told Aragon that he went to the gas station, bought a Coke, and left. He then returned and saw that the attendant was asleep. Although he considered shooting the attendant through the window, he decided instead to go inside and ask for another Coke. He shot Flores in the face, then ripped out the cash register and went back to his car. Pulido recanted this confession while in jail, however, writing in a letter to Moore: “If unc is reading this, tell him I didn’t kill that guy, I was just messing with him.”

At trial, Pulido claimed for the first time that Aragon had killed Flores. According to Pulido, he and Aragon were together the night of May 23 and ended up at the Shell station after Aragon smoked crack cocaine at Hunters Point. Pulido testified that he waited outside while Aragon went in to buy matches or cigarettes. After hearing a gunshot, Pulido ran into the store and saw Aragon holding Pulido’s gun. Flores was lying on the floor, bleeding from a shot to the face. Pulido yelled at Aragon, ran out of the store, and got back into the car. Moments later, Aragon came out with the cash register and threw it on Pulido’s lap. As they drove away, Aragon forced Pulido at gunpoint to open the cash register. Pulido handed the cash over to Aragon, then tossed the cash register into some bushes.

At the time of the shooting, Aragon was on probation for 1989 convictions for burglary, possession of cocaine, and contributing to the delinquency of a minor. Although Aragon denied using cocaine that night, Aragon’s sister testified that he was “on something” when she saw him either on May 24 or 25, and her son testified that Aragon was acting paranoid and smelled of crack cocaine. A police detective testified that Aragon had first claimed that he had gotten up at 12:15 a.m. to take care of the baby, but when interviewed with Moore at the police station, both said that it was around 3 a.m.

No physical evidence linked Aragon to the crime.

B

Pulido was convicted in the San Mateo County Superior Court of first-degree felony murder, robbery, receiving stolen property, and auto theft. The jury deadlocked on whether Pulido personally used a firearm and personally inflicted great bodily injury2 but unanimously returned a spe[1011]*1011cial-cireumstance finding of robbery-murder. Pulido was sentenced to life in prison without the possibility of parole.

On direct appeal, Pulido argued that the jury instructions on aiding and abetting felony murder and robbery, read together, impermissibly allowed him to be convicted of felony murder even if he did not form the intent to aid and to abet the robbery until after the murder. The California Supreme Court agreed that the felony-murder rule did not “include aiders and abettors or conspirators who join the felonious enterprise only after the murder has been completed,” and that the instructions “could well suggest to a jury that a person who aids and abets only in the asportation phase of robbery, after the killing is complete, is nonetheless guilty of first degree murder under the felony-murder rule.” People v. Pulido, 15 Cal.4th 713, 63 Cal.Rptr.2d 625, 936 P.2d 1235, 1243, 1245 (1997) (“Pulido I”). The court upheld Pulido’s conviction, however, on the ground that Pulido did not suffer any prejudice from the instructional error. In particular, the court concluded that the jury’s robbery-murder special-circumstance finding “demonstrates the jury did not accept the theory defendant joined the robbery only after Flores was killed,” but rather “found — explicitly, unanimously and necessarily — 'that defendant’s involvement in the robbery, whether as a direct perpetrator or as aider and abettor, commenced before or during the killing of Flores.” Id., 63 Cal.Rptr.2d 625, 936 P.2d at 1244.

Pulido thereafter filed this federal habeas petition, which the district court granted after discovering that the other special circumstance instruction — not relied upon by the California Supreme Court or by Pulido — was also defective. Pulido v. Lamarque, No. 99-4933, 2005 WL 6142229, at *14-*20 (N.D.Cal. Mar.24, 2005) (“Pulido II ”). Namely, it contained a typographical error, using the word “or” instead of “and” between its two prongs, thus enlarging the scope of activity that would qualify as robbery felony murder under the special circumstance. Id. at *14. Because the district court could not “be reasonably certain that the jury, if required to do so, would have found that [Pulido’s] involvement in the robbery preceded the victim’s death,” the court was “left with grave doubt as to the likely effect of [the] error on the jury’s verdict.” Id. at *20 (internal quotation marks omitted). Therefore, the district court concluded that Pulido was entitled to habeas relief on this claim of instructional error. Id.

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Bluebook (online)
629 F.3d 1007, 2010 U.S. App. LEXIS 25907, 2010 WL 5157164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pulido-v-chrones-ca9-2010.