Two of the jury instructions given in the case were defective, a fact conceded by the state. The felony-murder instruction was defective because the California Supreme Court held that aiding and abetting a robbery after the murder does not constitute felony murder, an instruction that the jury here was allowed to base it verdict on. Also, one of the murder-robbery special instructions was invalid because of a typographical error - "or" was substituted for the word "and," enlarging the scope of activity that could support the special circumstance.
The California Supreme Court, while recognizing the errors, affirmed the verdict based on harmless error analysis, reasoning that the special circumstance verdict required the jury to find contemporaneity between the murder and the robbery. However, ". . . 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.'" Therefore, the verdict could have been based on the improper jury instruction. The district court granted habeas relief, and the court of appeals affirmed the grant.
The Court's analysis measuring the harm of the error is worth quoting in full (citations omitted):
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, the instructional error was structural and therefore not subject to harmless error review. In Lara, 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. Relying primarily on the Supreme Court’s decision in Sandstrom v. Montana and this court’s decision in Keating v. Hood, we held that such error was structural and that “where a reviewingcourt cannot determine with absolute certainty whether a defendant was convicted under an erroneous theory” reversal is required. 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.
The court concluded that because the possibility remained that the jury convicted based on an impermissible legal theory, the verdict must be overturned.
Judge O'Scannlain and Judge Thomas concurred specially and separately with the per curiam opinion. Their fight was over the wisdom Lara. Judge Thomas also wrote to emphasize that the same result would be reached in this case under the harmless error test. Judge O'Scannlain explained his concurrence as follows:
I agree with the majority that our recent decision in Lara v. Ryan compels us to affirm the district court’s grant of habeas relief. I write separately, however, because I believe this circuit’s instructional error jurisprudence cries out for review, preferably by our court sitting en banc, or if not, by the Supreme Court.
I think this decision has a good chance of being overturned en banc or having cert granted by the Supreme Court. While I agree with Judge Thomas that the same result would (and should) be reached under harmless error analysis, the fact of the matter is that the harm here is measurable, and should be subject to harmless error analysis. Structural error is reserved for that special class of mistakes where the harm is immeasurable. The seriousness of the error isn't the issue. Rather, because the error strikes at the very foundation upon which the trial rests, it is impossible to measure and harmless error analysis would be an exercise in futility. See U.S. v. Gonzalez-Lopez, 126 S.Ct. 2557 (2006).
The error here was measurable, and because Ninth Circuit precedent dictated the result reached I don't think the panel decision will be the last word.