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Name: Pulido v. Chrones
Case #: 05-15916
Court: US Court of Appeals
District 9 Cir
Opinion Date: 05/30/2007
Subsequent History: Cert. granted 2/25/08 (07-544)

Where a reviewing court cannot determine with absolute certainty whether a defendant was convicted under an erroneous theory, reversal is required. (Lara v. Ryan (9th Cir. 2006) 455 F.3d 1080.) In 1992, appellant was convicted of first degree murder with a special circumstance finding of robbery felony murder and was sentenced to life without parole. (Pen. Code, secs. 190.2(a)(17)(I) & 190.5(b).) Direct appeals resulted in affirmation and appellant turned to the habeas process. Again the California courts affirmed, the Supreme Court finding that error was harmless because the special circumstance verdict required the jury to make the necessary contemporaneity determination for the robbery/murder. But the district court then discovered that one of the instructions included a typographical error, substituting “or” for “and” – thereby erroneously enlarging the scope of required activity. The 9th found this instructional error to be structural and because the instructions left open the possibility that the jury convicted appellant on an impermissible theory – i.e., that he joined the robbery after the victim was killed, reversal was required.