HEDGPETH, WARDEN v. PULIDO

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Syllabus
HEDGPETH, WARDEN v. PULIDO
certiorari to the united states court of appeals for
the ninth circuit
No. 07–544. Argued October 15, 2008—Decided December 2, 2008
Respondent Pulido was convicted by a California jury of felony murder.
On direct appeal, the California Supreme Court found invalid one of the
alternative theories of guilt on which the jury had been instructed, but
upheld the conviction on the grounds that the error was harmless. The
District Court disagreed and granted Pulido federal habeas relief, con
cluding that, under Brecht v. Abrahamson, 507 U. S. 619, 623, the invalid
theory had a “ ‘substantial and injurious effect or influence in determin
ing the jury’s verdict.’ ” The Ninth Circuit affirmed but on a different
ground, ruling that instructing a jury on multiple theories of guilt, one
of which is legally improper, is “structural” error not subject to
harmless-error review. The Ninth Circuit held that Pulido’s conviction
must be set aside because it could not determine with “absolute cer
tainty” that he was convicted under a proper theory. Pulido now
agrees with the State that the Ninth Circuit erred and that Brecht’s
harmless-error standard governs, but he maintains that the Court of
Appeals effectively engaged in the Brecht analysis.
Held: The Ninth Circuit erred by categorizing the error as structural
rather than applying Brecht. This Court has previously held that vari
ous forms of instructional error, such as omitting or misstating an ele
ment of an offense, are not structural but instead trial errors subject to
harmless-error review. See, e. g., Neder v. United States, 527 U. S. 1;
California v. Roy, 519 U. S. 2 (per curiam); Pope v. Illinois, 481 U. S.
497; Rose v. Clark, 478 U. S. 570. And Neder made clear that
harmless-error analysis applies to instructional errors so long as the
error at issue does not categorically “vitiat[e] all the jury’s findings.”
527 U. S., at 11. An instructional error arising in the context of multi
ple theories of guilt no more vitiates all the jury’s findings than does
omission or misstatement of an element of the offense when only one
theory is submitted. Pulido’s argument that the Ninth Circuit effec
tively engaged in the Brecht analysis is rejected. That court mentioned
Brecht only briefly in a footnote, agreed with Pulido’s alternative argu
ment that the error was structural and not subject to harmless-error
review, and applied an “absolute certainty” standard that is plainly in
consistent with Brecht.
487 F. 3d 669, vacated and remanded.

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58 HEDGPETH v. PULIDO
Per Curiam
Jeremy Friedlander, Deputy Attorney General of Califor
nia, argued the cause for petitioner. With him on the briefs
were Edmund G. Brown, Jr., Attorney General, Dane R. Gil
lette, Chief Assistant Attorney General, Manuel Medeiros,
State Solicitor General, Gerald A. Engler, Senior Assistant
Attorney General, Donald E. de Nicola, Deputy State Solici
tor General, and Peggy S. Ruffra, Supervising Deputy Attor
ney General.
Pratik A. Shah argued the cause for the United States as
amicus curiae urging reversal. With him on the brief were
former Solicitor General Clement, former Assistant Attor
ney General Fisher, Deputy Solicitor General Dreeben, and
Deborah Watson.
J. Bradley O’Connell, by appointment of the Court, 552
U. S. 1294, argued the cause and filed a brief for respondent.*
Per Curiam.
A conviction based on a general verdict is subject to chal
lenge if the jury was instructed on alternative theories of
guilt and may have relied on an invalid one. See Stromberg
v. California, 283 U. S. 359 (1931); Yates v. United States,
354 U. S. 298 (1957). In this case the Court of Appeals for
the Ninth Circuit held that such an error is “structural
error,” requiring that the conviction be set aside on collateral
review without regard to whether the flaw in the instruc
tions prejudiced the defendant. The parties now agree that
the Court of Appeals was wrong to categorize this type of
error as “structural.” They further agree that a reviewing
court finding such error should ask whether the flaw in the
instructions “had substantial and injurious effect or influence
in determining the jury’s verdict.” Brecht v. Abrahamson,
507 U. S. 619, 623 (1993) (internal quotation marks omitted).
We agree as well and so hold.
*Kent S. Scheidegger filed a brief for the Criminal Justice Legal Founda
tion as amicus curiae urging reversal.

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Per Curiam
Respondent Michael Pulido was convicted by a California
jury of felony murder. On direct appeal, Pulido sought to
vacate his conviction on the ground that the jury instructions
were erroneous: They permitted the jury to find him guilty
of felony murder if he formed the intent to aid and abet the
underlying felony before the murder, but they also permitted
the jury to find him guilty if he formed that intent only after
the murder. The California Supreme Court agreed with
Pulido that the latter theory was invalid under California
law, but upheld the conviction on the ground that Pulido was
not prejudiced by the error. People v. Pulido, 15 Cal. 4th
713, 727, 936 P. 2d 1235, 1243–1244 (1997). Pulido sought
federal habeas relief, which the District Court granted after
concluding that instructing the jury on the invalid theory
had a “ ‘substantial and injurious effect or influence in de
termining the jury’s verdict. ’ ” Pulido v. Lamarque,
No. C 99–4933 CW (PR) (ND Cal., Mar. 24, 2005), App. to
Pet. for Cert. 65a–66a (quoting Brecht, supra, at 637).
The State appealed, and the Court of Appeals affirmed.
Pulido v. Chrones, 487 F. 3d 669 (2007) (per curiam). On
appeal, Pulido argued the District Court’s Brecht analysis
was correct, but in the alternative sought to avoid the
harmless-error inquiry altogether. In support of that alter
native argument, he maintained that when a jury returns
a general verdict after being instructed on both a valid and
an invalid theory, the conviction must be automatically
set aside, without asking whether the invalid instruction
was harmless. The Court of Appeals recognized that the
Brecht “substantial and injurious effect” standard governs
harmless-error analysis on federal habeas, 487 F. 3d, at 673,
n. 3 (internal quotation marks omitted), but agreed with
Pulido that instructing a jury on multiple theories of guilt,
one of which is legally improper, was “structural” error ex
empting the instructions as a whole from harmless-error re
view, id., at 675–676. Such error instead required setting
aside the conviction on habeas unless the reviewing court

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Per Curiam
could determine with “ ‘absolute certainty’ ” that the defend
ant was convicted under a proper theory. Id., at 676 (quot
ing Lara v. Ryan, 455 F. 3d 1080, 1086 (CA9 2006)). Because
the instructions “le[ft] open the possibility” that the jury
convicted Pulido on the impermissible ground, the court con
cluded that the verdict must be reversed. 487 F. 3d, at 676.
We granted certiorari. Chrones v. Pulido, 552 U. S. 1230
(2008).
The Ninth Circuit precedent on which the Court of
Appea ls relied, see L ara v. Ryan, supra, based its
structural-error analysis upon a line of our cases beginning
with Stromberg. Stromberg addressed the validity of a gen
eral verdict that rested on an instruction that the petitioner
could be found guilty for displaying a red flag as “ ‘a sign,
symbol, or emblem of opposition to organized government,
or [a]s an invitation or stimulus to anarchistic action, or [a]s
[a]n aid to propaganda that is of a seditious character.’ ” 283
U. S., at 363. After holding that the first clause of the in
struction proscribed constitutionally protected conduct, we
concluded that the petitioner’s conviction must be reversed
because “it [wa]s impossible to say under which clause of the
[instruction] the conviction was obtained.” Id., at 368. In
Yates v. United States, supra, we extended this reasoning to
a conviction resting on multiple theories of guilt when one of
those theories is not unconstitutional, but is otherwise le
gally flawed.
Both Stromberg and Yates were decided before we con
cluded in Chapman v. California, 386 U. S. 18 (1967), that
constitutional errors can be harmless. Accordingly, neither
Stromberg nor Yates had reason to address whether the in
structional errors they identified could be reviewed for
harmlessness, or instead required automatic reversal. In a
series of post-Chapman cases, however, we concluded that
various forms of instructional error are not structural but
instead trial errors subject to harmless-error review. See,
e. g., Neder v. United States, 527 U. S. 1 (1999) (omission of

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Per Curiam
an element of an offense); California v. Roy, 519 U. S. 2
(1996) (per curiam) (erroneous aider and abettor instruc
tion); Pope v. Illinois, 481 U. S. 497 (1987) (misstatement of
an element of an offense); Rose v. Clark, 478 U. S. 570 (1986)
(erroneous burden shifting as to an element of an offense).
Although these cases did not arise in the context of a jury
instructed on multiple theories of guilt, one of which is im
proper, nothing in them suggests that a different harmless
error analysis should govern in that particular context. To
the contrary, we emphasized in Rose that “while there are
some errors to which [harmless-error analysis] does not
apply, they are the exception and not the rule.” Id., at 578.
And Neder makes clear that harmless-error analysis applies
to instructional errors so long as the error at issue does not
categorically “ ‘vitiat[e] all the jury’s findings.’ ” 527 U. S.,
at 11 (quoting Sullivan v. Louisiana, 508 U. S. 275, 281
(1993) (erroneous reasonable-doubt instructions constitute
structural error)). An instructional error arising in the con
text of multiple theories of guilt no more vitiates all the
jury’s findings than does omission or misstatement of an ele
ment of the offense when only one theory is submitted.
In fact, drawing a distinction between alternative-theory
error and the instructional errors in Neder, Roy, Pope, and
Rose would be “patently illogical,” given that such a distinc
tion “ ‘reduces to the strange claim that, because the jury . . .
received both a “good” charge and a “bad” charge on the
issue, the error was somehow more pernicious than . . .
where the only charge on the critical issue was a mistaken
one.’ ” 487 F. 3d, at 677–678 (O’Scannlain, J., concurring spe
cially) (quoting Quigley v. Vose, 834 F. 2d 14, 16 (CA1 1987)
(per curiam)); see also Becht v. United States, 403 F. 3d 541,
548 (CA8 2005) (same), cert. denied, 546 U. S. 1177 (2006).
Pulido now agrees with the State that the Court of Ap
peals erred by treating the instructional error in this case
as structural, and that the required prejudice analysis should

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Per Curiam
be governed by Brecht’s “substantial and injurious effect”
standard. See Brief for Respondent 17 (“[T]he Ninth Cir
cuit was mistaken in its ‘structural defect’ nomenclature”);
Tr. of Oral Arg. 27 (“We acknowledge that this is a trial error
and is subject to the Brecht prejudice standard”). So do we.
Pulido nonetheless maintains we should affirm because the
Court of Appeals effectively engaged in the Brecht analysis,
despite its clear description of the error as “structural.”
But despite full briefing on the applicability of Brecht, the
Court of Appeals mentioned Brecht only briefly in a footnote,
see 487 F. 3d, at 673, n. 3, and then went on to agree with
Pulido’s alternative assertion that “the instructional error
was structural and therefore not subject to harmless error
review,” id., at 675–676. The court also stated that the con
viction had to be overturned unless the court was “ ‘abso
lutely certain’ ” that the jury relied on a valid ground. Id.,
at 676. Such a determination would appear to be a finding
that no violation had occurred at all, rather than that any
error was harmless. In any event, an “absolute certainty”
standard is plainly inconsistent with Brecht. Accordingly,
we express no view on whether Pulido is entitled to habeas
relief, but rather remand to the Court of Appeals for applica
tion of Brecht in the first instance.*
The judgment is vacated, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
*The dissent maintains the Court of Appeals “undertook a searching
review of the parties’ evidence and the jury instructions to determine the
error’s effect on the jury.” Post, at 68 (opinion of Stevens, J.). But the
Court of Appeals reached its conclusion based solely on the existence of
a typographical error in the special circumstances instructions, without
addressing any of the State’s arguments that the typographical error was
harmless in light of the record as a whole. There was no need for that
court to address those arguments, of course, because of its mistaken con
clusion that the instructional error was structural. Under such circum
stances, remand is the appropriate course.

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Stevens, J., dissenting
Justice Stevens, with whom Justice Souter and Jus
tice Ginsburg join, dissenting.
The Court of Appeals misused the term “structural error”
in its opinion affirming the District Court’s order granting
Pulido’s application for a writ of habeas corpus. But the
court’s misnomer was inconsequential because its decision
rested on substantially the same analysis as the District
Court’s, which correctly applied the standards set forth in
Kotteakos v. United States, 328 U. S. 750 (1946), Brecht v.
Abrahamson, 507 U. S. 619 (1993), and O’Neal v. McAninch,
513 U. S. 432 (1995). The Court of Appeals’ decision there
fore did not warrant this Court’s review and does not now
merit a remand to require that court to repeat its analysis.
In my opinion, the interest in expediting the conclusion of
this protracted litigation outweighs the interest in correcting
a misnomer.
Respondent Michael Pulido was charged with felony mur
der for robbing a gas station and killing the attendant. At
trial, the State argued that Pulido acted alone. Pulido
maintained that his uncle was the principal actor and that he
had no knowledge of his uncle’s plan when the two arrived
at the gas station. While he was waiting in the car, Pulido
claimed, he heard a shot and ran into the store. At that
point, his uncle insisted that Pulido help him pry open the
stolen cash register and dispose of it, and Pulido reluctantly
complied. The jury convicted Pulido of felony murder, but
it was unable to reach a verdict on the charges that Pulido
personally used a firearm and intentionally inflicted great
bodily harm.
As a matter of California law, felony-murder liability ex
tends to all persons jointly engaged in the commission of a
felony at the time of a killing when one of the joint actors
kills in furtherance of the common design. People v. Pulido,
15 Cal. 4th 713, 716, 936 P. 2d 1235, 1236 (1997). But a per
son is not guilty of felony murder if he is only a “late-joining”
aider and abettor—i. e., if he did not himself commit the mur

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der and his participation in the underlying felony did not
begin until after the victim was killed. Ibid. In this case,
the trial court’s instructions erroneously permitted the jury
to find Pulido guilty on such a theory, as they did not require
the jury to find either that Pulido committed the murder or
that he aided and abetted the underlying robbery before the
murder was committed. Because the instructions allowed
the jury to convict Pulido of felony murder for conduct that
does not amount to that offense, their inclusion was constitu
tional error.
On direct appeal, the California Supreme Court agreed
with Pulido that the late-joiner theory was an invalid theory
of felony-murder liability. Ibid. It nevertheless held that
any error in the trial court’s instructions was harmless. Ac
cording to the court, the jury found that Pulido had been
engaged in the robbery at the time of the killing because the
robbery-murder special-circumstance instruction stated that
“the murder was committed while the defendant was en
gaged” in the “commission of or attempted commission of [a]
robbery.” Id., at 727, 936 P. 2d, at 1243 (citing Cal. Penal
Code Ann. § 190.2(a)(17) (internal quotation marks omitted)).
Based on that portion of the instruction, the court concluded
that the special-circumstance verdict “demonstrates the jury
did not accept the theory [Pulido] joined the robbery only
after [the victim] was killed,” and it therefore held that Pul
ido was not prejudiced by the error. 15 Cal. 4th, at 727, 936
P. 2d, at 1244.
In reaching that conclusion, however, the California Su
preme Court failed to take into account the entire special
circumstance instruction. A typographical error in that in
struction in fact permitted the jury to find the special
circumstance of robbery-murder true if it found either that
the murder was committed while the defendant was engaged
in the commission of a robbery or that it “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

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Stevens, J., dissenting
detection”—a finding entirely consistent with the late-joiner
theory. App. 14. Thus, as the State concedes, the errone
ous instructions made it “reasonably likely” that the jury
convicted Pulido on the impermissible theory. Brief for
Petitioner 18.
After exhausting his state postconviction remedies,1
Pulido sought a writ of habeas corpus in Federal District
Court. The District Court recognized the erroneous dis
junctive in the special-circumstance instruction that the Cali
fornia Supreme Court had overlooked, and it held that the
state court’s conclusion that Pulido was not prejudiced by
erroneous instructions was “an objectively unreasonable ap
plication of clearly established federal law.” Pulido v. La
marque, No. C 99–4933 CW (PR) (ND Cal., Mar. 24, 2005),
App. to Pet. for Cert. 64a.
The District Court then considered the effect of that error
on the jury. Correctly relying on Brecht, the District Court
began its analysis by noting that a federal habeas petitioner
“is not entitled to habeas relief unless the State court’s error
resulted in actual prejudice, that is, the error had a ‘substan
tial and injurious effect or influence in determining the jury’s
verdict.’ ” App. to Pet. for Cert. 65a (quoting Brecht, 507
U. S., at 637). If an error had a substantial influence, or if
“the record is so evenly balanced that a conscientious judge
is in ‘grave doubt’ ” as to whether it had such an effect, the
conviction must be reversed. App. to Pet. for Cert. 65a
(quoting O’Neal, 513 U. S., at 438).
To determine whether the error was harmless under this
standard, the District Court scrutinized the record, including
the arguments of both parties, the evidence supporting their
respective theories of the case, the jury instructions, the
jury’s questions to the trial court, and the various parts
of the jury’s verdict. App. to Pet. for Cert. 65a–66a.
1 The California Supreme Court summarily denied Pulido’s state petition
for a writ of habeas corpus. See Pulido v. Chrones, 487 F. 3d 669, 672
(CA9 2007) (per curiam).

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Throughout this inquiry, the District Court properly avoided
substituting its judgment for the jury’s. As we cautioned in
Kotteakos, in undertaking harmless-error analysis “it is not
the [reviewing] court’s function to determine guilt or inno
cence. Nor is it to speculate upon probable reconviction and
decide according to how the speculation comes out.” 328
U. S., at 763 (citations omitted). Thus, “[t]he inquiry cannot
be merely whether there was enough to support the result”
in the absence of the error. Id., at 765. Rather, the proper
question is “whether the error itself had substantial influ
ence. If so, or if one is left in grave doubt, the conviction
cannot stand.” Ibid.; accord, O’Neal, 513 U. S., at 437.
That was precisely the question addressed by the District
Court when it sought to ascertain what the jury actually
found. The court concluded that, while it is “possible” that
the jury found that Pulido aided and abetted the robbery
before the victim was killed, the court had “no way of deter
mining whether this was the case.” App. to Pet. for Cert.
66a. Because that uncertainty left the court with “ ‘grave
doubt as to the likely effect of [the] error on the jury’s ver
dict,’ ” it faithfully applied the standard mandated by Kot
teakos and O’Neal and found that the error was not harmless.
App. to Pet. for Cert. 66a (quoting O’Neal, 513 U. S., at 435).
On appeal, Pulido contended that the judgment of the Dis
trict Court should be affirmed whether the instructional
error was viewed as structural error or as trial error. Brief
for Appellee and Cross-Appellant in No. 05–15916 etc. (CA9),
pp. 53–64 (hereinafter Appellee’s Brief). He argued that
the error was not harmless under Brecht and O’Neal because
the substantial evidence that supported the invalid theory
made it likely that the jury convicted him on that basis. Ap
pellee’s Brief 55–64. In particular, Pulido noted that the
“injurious effect” of this type of error “is greatest when the
instruction compromises the defense by appearing to extend
liability even to the factual scenario suggested by the de

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fense evidence,” as was true in this case. Id., at 57 (internal
quotation marks omitted; emphasis deleted). At oral argu
ment, the parties’ contentions similarly focused on the
Brecht standard and the result that harmless-error analysis
required.
Less than two months after oral argument, and before the
Court of Appeals issued its decision in this case, a different
panel of the Ninth Circuit decided Lara v. Ryan, 455 F. 3d
1080 (2006). Lara was convicted of attempted murder by a
jury that had been instructed that it could find him guilty
under either an express malice theory or an implied malice
theory, the second of which is legally invalid. Id., at 1082.
The Ninth Circuit described the erroneous instruction as a
“structural error,” but it held that such an error does not
necessitate reversal when a reviewing court can “determine
with absolute certainty” that the defendant was not con
victed under the erroneous theory. Id., at 1086. Because
the jury “made a specific finding that Lara attempted to mur
der willfully, deliberately, and with premeditation,” the court
concluded that it necessarily relied on the valid instruc
tion and that reversal was therefore not required. Id., at
1086–1087.
In those limited instances in which this Court has found
an error “structural,” we have done so because the error
defies analysis by harmless-error standards. See Arizona
v. Fulminante, 499 U. S. 279, 309 (1991); see also United
States v. Gonzalez-Lopez, 548 U. S. 140, 150 (2006) (quoting
Sullivan v. Louisiana, 508 U. S. 275, 282 (1993); United
States v. Cronic, 466 U. S. 648, 659, and n. 25 (1984)). In
deed, it is because the consequences “ ‘are necessarily un
quantifiable and indeterminate’ ” that automatic reversal is
required when such errors occur. Gonzalez-Lopez, 548
U. S., at 150 (quoting Sullivan, 508 U. S., at 282). That the
court in Lara could be “ ‘ “absolutely certain” that the jury
relied upon the legally correct theory,’ ” 455 F. 3d, at 1085,

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shows both that the error was susceptible of harmless-error
analysis and that the court in fact found the error harmless
despite repeatedly referring to it as “structural.”
Citing Lara, the Court of Appeals’ per curiam opinion
labeled the erroneous instruction in this case a structural
error.2 As in Lara, the court then undertook a searching
review of the parties’ evidence and the jury instructions to
determine the error’s effect on the jury. Noting, among
other things, that “[t]he typographical error in the contempo
raneity 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,” the court
concluded that “the jury instructions leave open the possibil
ity that the jury convicted Pulido on a legally impermissible
theory.” Pulido v. Chrones, 487 F. 3d 669, 676 (CA9 2007)
(per curiam). That possibility of reliance on the erroneous
instruction is the “substantial and injurious effect” to which
Brecht refers. Thus, although the Court of Appeals called
the error in this case by the wrong name, it performed sub
stantially the same analysis and reached the same conclusion
as the District Court did when it applied the standard pre
scribed by Brecht.3
Judge Thomas concurred separately both to defend the
Lara decision and to demonstrate that harmless-error analy
sis also supports the panel’s result. 487 F. 3d, at 678–
683. Unlike the District Court, Judge Thomas applied the
2 The Court of Appeals’ opinion asserts that Pulido argued that the error
was structural under Lara v. Ryan, 455 F. 3d 1080 (CA9 2006). But due
to the timing of the Lara decision, the parties did not raise arguments
relying on that precedent until their postargument supplemental briefing.
As discussed above, the parties’ arguments had initially focused on the
proper application of Brecht v. Abrahamson, 507 U. S. 619 (1993).
3 The Court of Appeals in fact cited Brecht and recited the proper stand
ard in a footnote before turning its attention to Lara: “If there is constitu
tional error, we consider whether the error was harmless; that is, whether
the error had a ‘ “substantial and injurious effect or influence in determin
ing the jury’s verdict.” ’ ” 487 F. 3d, at 673, n. 3.

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harmless-error standard announced in Chapman v. Califor
nia, 386 U. S. 18 (1967), instead of looking to Brecht. 487
F. 3d, at 678. But his analysis similarly establishes that at
least some jurors very likely relied on the impermissible
late-joiner theory. Id., at 679–683.
The record before us clearly supports that conclusion. In
deed, even petitioner admits that the ambiguity in the rob
bery and murder instructions and the trial court’s confusing
answers to the jury’s questions “combined to make it reason
ably likely that the jury applied the instructions in an uncon
stitutional way.” Brief for Petitioner 18. That reasonable
likelihood is sufficient to support the conclusion that the
error was not harmless under Brecht.
Because the District Court’s analysis was correct and the
Court of Appeals’ result was substantially the same, I think
this Court’s decision to remand for the purpose of obtaining
a third analysis of the harmless-error issue is a misuse of
scarce judicial resources. I would therefore affirm the judg
ment of the Court of Appeals.