Hedgepeth v. Pulido Oct. 15

This, like Waddington, is a jury instruction case. The underlying case has to do with the murder and robbery of a convenience store clerk in San Mateo, CA in 1992. The man convicted of the crime, Michael Pulido, was 16 at the time of the homicide and was sentenced to life imprisonment without the possibility of parole. At trial there was conflicting testimony regarding Pulido's role in the crime--whether he was solely responsible for it, whether he was an accomplice during the crime (along with his uncle) or whether his accomplice liability only arose after the crime was committed. Later, when this case made it to the federal courts (on habeas corpus grounds), another issue came up--a typographical error in the original jury instructions. I think the case ought to be sent back for retrial as a result of the error, but I think the Supremes will do a complex "harmless error" dance before reversing the Ninth Circuit on this one.

The Issue In the Case

So, when Pulido's case came to an end, the jury was instructed in three alternative theories of criminal liability: (1) that Pulido personally shot the victim; (2) that Pulido aided and abetted in the robbery prior to or during the principal perpetrator's shooting of the victim; or (3) that Pulido aided in the robbery only after the shooting (the 'late joiner" theory; which, in fact, would not permit a life sentence without the possibility of parole--one of the issues here).

The jury deliberated for five days, sending out numerous queries concerning aider/abettor liability under a felony-murder theory. The jury convicted Pulido of robbery and first degree murder, and found a robbery felony-murder "special circumstance." Yet, the jurors deadlocked on an enhancement allegation of personal use of a firearm, indicating that some of the jurors based their murder verdict on an aiding/abetting theory (nos. 2 and 3 above).

Well, on direct appeal to the CA Supreme Court, that court repudiated the "late joiner" theory (no. 3), concluding that assistance in a robbery would not support felony-murder liability if that assistance occurred only after the homicide. People v. Pulido, 936 P2s 1235 (1997). But, no worry, that court went on to declare that the submission of that unauthorized theory was harmless based on the assumption that the verdict form came back indicating that the murder occurred "while" Pulido was a participant in the robbery. The actual jury instruction, a modified form of CALJIC No. 8.80.1 asked the jury 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 robbery."

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]."

Thus, it seemed to the CA Supreme Court that the jury had found a contemporaneity between Pulido's participation and the murder. Harmless error. Case closed. Well...not yet.

Federal Habeas Appeal

A brief, but obscure, window into habeas corpus law is afforded in just the next sentence. Pulido filed for habeas corpus relief in federal court in Nov. 1999. In May 2005, the court granted the writ. Five and one-half years later. The time it takes to earn two masters' degrees. Well, when the district court ruled, it found that the state supreme court's "harmless error" finding was itself erroneous because there was a typographical error substituting "or" for "and" in one of the jury instructions (not the one listed above).

Let' me back up for a moment. Jury instructions on five issues were presented: (a) murder (CALJIC 8.21); (b) aiding and abetting (CALJIC 8.27 and 9.40.1); (c) robbery-murder special circumstances (CALJIC 8.80.1; 8.81.17; 8.83); (d) robbery (CALJIC 9.40); and (e) felony-murder (CALJIC 9.44; 3.00 and 3.01). The state agreed that the felony-murder instructions were defective, but concluded, as shown above, that this defect was harmless because the jury's words assumed contemporaneity rather than subsequent involvement of Pulido in the homicide. The Ninth Circuit upheld the CA Supreme Court on this one (487 F3d 669 (2007)).

But it was another jury instruction, where there was a typograpical error, that messed things up, according to the Ninth Circuit. This had to do with the robbery-murder special circumstances. Here is the way the instruction was given:

"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.

Thus, according to these instructions, with the "or" in italics, there was either a contemporaneity requirement or a "purpose" requirement. The purpose requirement, because of the "or," is severed from the contemporareous requirement. It could have happened afterwards. But the actual wording of the jury instruction is:

"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; and 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."

Clearly, the correct instruction has a contemporaneity requirement. This is where we have a massive problem, and is why the Ninth Circuit upheld the district court's granting of the writ of habeas corpus. Even Judge O'Scannlain, the former chair of the Oregon Republican Party and appointed to the Ninth Circuit under President Reagan, concurred with his two other brethren in this.

Conclusion

So, the case comes to the US Supreme Court with the crucial issue only having been discovered once the case had gotten into the federal system. Thus, I think that rather than arguing which "line" of cases is appropriate authority here, they simply ought to look at the defectively typed form (do we think that was an innocent mistake?), realize that it could have effected significant prejudice, and tell CA to get it right next time. There should be no hand-wringing on harmless or not harmless error. If the system puts out an erroneous instruction that does change the meaning of the instruction to the disadvantage of the defendant, the result ought not to stand. Reverse, I say. Actually, now that I am at the end of this essay, I think the Supremes will agree. But not by much.

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