                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

TIMOTHY LEE BYRD,                         
              Petitioner-Appellant,
                v.                              No. 06-15977
GAIL LEWIS, WARDEN, PLEASANT
VALLEY STATE PRISON; EDMUND G.                   D.C. No.
                                              CV-02-02013-MCE
BROWN, ATTORNEY
                                                  OPINION
GENERAL FOR THE STATE OF
CALIFORNIA,
            Respondents-Appellees.
                                          
       Appeal from the United States District Court
           for the Eastern District of California
       Morrison C. England, District Judge, Presiding

                    Argued October 15, 2007
                     Submitted May 8, 2009
                    San Francisco, California

                       Filed May 15, 2009

   Before: J. Clifford Wallace and Johnnie B. Rawlinson,
       Circuit Judges, and Jane A. Restani,* Judge.

                 Opinion by Judge Rawlinson;
                 Concurrence by Judge Wallace




   *The Honorable Jane A. Restani, Chief Judge, United States Court of
International Trade, sitting by designation.

                                5839
5842                    BYRD v. LEWIS




                         COUNSEL

Krista Hart (briefed and argued), Sacramento, California for
the petitioner-appellant.

Edmund G. Brown Jr. (briefed), Dane R. Gillette (briefed),
Michael P. Farrell (briefed), Carlos A. Martinez (briefed), and
Wanda Hill Rouzan (briefed and argued), Sacramento, Cali-
fornia for the respondent-appellee.
                            BYRD v. LEWIS                           5843
                               OPINION

RAWLINSON, Circuit Judge:

   Timothy Byrd (Byrd) appeals the district court’s denial of
his 28 U.S.C. § 2254 habeas corpus petition challenging his
jury conviction for unlawfully taking a vehicle under Cal.
Vehicle Code § 10851(a). We have jurisdiction under 28
U.S.C. §§ 1291 and 2253. We conclude that the state court’s
application of harmless error review to the trial court’s jury
instructions was not an unreasonable application of clearly
established Supreme Court precedent. Accordingly, we affirm
the district court’s denial of Byrd’s habeas petition.

       I.   FACTS AND PROCEDURAL HISTORY1

                          A.     The Crime

   At noon on June 26, 1999, Lorena Coen (Coen) began
drinking at her home. Later that afternoon she drove her 1984
Ford Mustang to Lewey G’s bar, where she continued to drink
until she became intoxicated. Coen attempted to leave Lewey
G’s but realized that she was too intoxicated to drive. Instead,
Coen decided to park her car one-half block away, across the
street from the house of two acquaintances.
  1
   The facts are taken from the opinion of the California Court of Appeal.
See People v. Byrd, No. C034582, 2001 WL 1480516, at *1-3 (Cal. Ct.
App. Nov. 21, 2001), as modified on denial of reh’g (Dec. 20, 2001). The
California Court of Appeal’s findings of fact are presumed correct “unless
[Byrd] can prove otherwise by clear and convincing evidence.” Sanders
v. Lamarque, 357 F.3d 943, 948 (9th Cir. 2004) (citations omitted). We
review this case under the “unreasonable application” analysis because the
California Court of Appeal referred to the clearly established Supreme
Court law of Sullivan v. Louisiana, 508 U.S. 275 (1993) see Byrd, 2001
WL 1480516, at *10; see also Gibson v. Ortiz, 387 F.3d 812, 814 (9th Cir.
2004) (explaining that the “unreasonable application” analysis applies
when the state court correctly identifies the governing precedent).
5844                       BYRD v. LEWIS
  Eugean Allen (Allen), a man Coen had known for years,
who is also Byrd’s cousin, saw Coen and invited her to a
party. Coen continued to drink at the party. During the course
of the party, Coen drove between the party and Lewey G’s
with other people in the car, possibly including Byrd. Coen
subsequently called her boyfriend to take her home, but she
could not find her keys. She locked her car manually, intend-
ing to return for it the following day. However, when Coen’s
boyfriend returned for the car, he discovered that it was not
where Coen had parked it. Coen then reported her car stolen.

   A few days later, two California Highway Patrol Officers
stopped Byrd. Initially, Byrd falsely identified himself. Upon
investigation, the officers discovered that the car Byrd was
driving belonged to Coen. A search of the car revealed that
the radio had been removed and that the headliner was torn.
After being given his Miranda2 warnings, Byrd explained that
a girl named “Lorie” loaned him the car.

   After retrieving her car, Coen confirmed that the radio had
been ripped out and the headliner was gone. She also noted
that things she had kept in her car—some clothes, her purse
and her son’s toys—were missing. Additionally, the car
would no longer move in reverse. By the time Coen got home,
the car would not move forward either.

                         B.     The Trial

   Byrd was charged with, among other things, unlawfully
driving or taking a vehicle in violation of Cal. Veh. Code
§ 10851(a). At trial, Coen testified that she did not recall
whether she gave her keys to Byrd. However, she explained
that she did not believe that she lent Byrd her car for several
days because she had never done so before, and needed her
car to drive to work.3 Sandra Coen, Coen’s sister-in-law, testi-
  2
   Miranda v. Arizona, 384 U.S. 436 (1966).
  3
   “While her car was missing, [Coen] temporarily lost her job.” Byrd,
2001 WL 1480516, at * 2.
                         BYRD v. LEWIS                      5845
fied that Coen usually did not lend her car to anyone. Allen
testified for the defense, recounting that Coen told Byrd that
Byrd could have the keys to her car, as she no longer wanted
it.

   The jury convicted Byrd, and he was sentenced to a prison
term of twenty-five years to life.

                 C.    Post-Trial Proceedings

   The California Court of Appeal affirmed Byrd’s conviction.
The California Supreme Court summarily denied Byrd’s peti-
tion for review, after which Byrd filed a federal petition for
a writ of habeas corpus. Byrd’s case was referred to a Magis-
trate Judge who recommended denying Byrd’s habeas peti-
tion. The Magistrate Judge’s Findings and Recommendations
were fully adopted by the district court. The district court sub-
sequently granted a certificate of appealability on the follow-
ing issues raised by Byrd on appeal: (1) “[the trial court’s]
failure to sua sponte instruct the jury on mistake of fact,” and
(2) “the trial court’s jury instruction that the jury could find
specific intent for vehicle theft based on [Byrd’s] retention of
the car beyond the scope of consent[.]”

              II.     STANDARD OF REVIEW

   We review de novo the district court’s decision to deny
Byrd’s habeas petition. Nguyen v. Garcia, 477 F.3d 716, 721
(9th Cir. 2007). Because Byrd filed his habeas petition after
April 24, 1996, his appeal is governed by the Antiterrorism
and Effective Death Penalty Act (AEDPA). See Gill v. Ayers,
342 F.3d 911, 917 (9th Cir. 2003). Under AEDPA, Byrd’s
petition can be granted only if the state court determination
resolving his claims “was contrary to, or involved an unrea-
sonable application of, clearly established Federal law . . .” or
“was based on an unreasonable determination of the facts . .
.” 28 U.S.C. § 2254(d). “A state court’s decision is contrary
to clearly established federal law if it (1) applies a rule that
5846                            BYRD v. LEWIS
contradicts the governing law set forth in Supreme Court
cases, or (2) confronts a set of facts materially indistinguish-
able from a Supreme Court decision and nevertheless arrives
at a different result.” Gibson, 387 F.3d at 814 (citations omit-
ted). “A state court’s decision is an unreasonable application
of clearly established federal law if the state court identifies
the correct governing legal principles from Supreme Court
decisions but unreasonably applies that principle to the facts
of the prisoner’s case.” Id. (citation, alteration and internal
quotation marks omitted).

                         III.    DISCUSSION4

                 A.    Mistake-of-Fact Instruction

   Byrd contends that because there was evidence demonstrat-
ing that Coen gave him permission to drive her car, his due
process rights were violated by the trial court’s failure to sua
sponte instruct the jury regarding mistake-of-fact. Accord-
ingly, Byrd argues, the California Court of Appeal’s ruling
that “substantial evidence supported the [mistake-of-fact]
instruction, but . . . the trial court’s error in failing to give it
was not prejudicial[,]” Byrd, 2001 WL 1480516, at * 3, was
contrary to clearly established Supreme Court precedent. We
disagree.

   [1] “Failure to instruct on the defense theory of the case is
reversible error if the theory is legally sound and evidence in
the case makes it applicable.” Beardslee v. Woodford, 358
F.3d 560, 577 (9th Cir. 2004) (citation omitted).5 However, to
  4
     In considering potential state court error, we look to the “last reasoned
decision of the state court as the basis of the state court’s judgment.”
Franklin v. Johnson, 290 F.3d 1223, 1233 n.3 (9th Cir. 2002) (citation
omitted). The California Court of Appeal’s decision affirming Byrd’s con-
viction represents the last reasoned state court decision.
   5
     Although circuit caselaw is not governing law under AEDPA, we may
look to circuit precedent in determining what law is clearly established.
See Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 2000), as
amended. Moreover, as with any other precedent, we must follow our
cases that have determined what law is clearly established. See Marshall
v. Taylor, 395 F.3d 1058, 1061 and n.15 (9th Cir. 2005).
                         BYRD v. LEWIS                      5847
obtain relief, “[Byrd] must show that the alleged instructional
error had substantial and injurious effect or influence in deter-
mining the jury’s verdict.” Clark v. Brown, 450 F.3d 898, 905
(9th Cir. 2006), as amended (citations and internal quotation
marks omitted); see also Beardslee, 358 F.3d at 578. A “sub-
stantial and injurious effect” means a “reasonable probability”
that the jury would have arrived at a different verdict had the
instruction been given. Clark, 450 F.3d at 916. To decide
whether Byrd was prejudiced, we consider: (1) the weight of
evidence that contradicts the defense; and (2) whether the
defense could have completely absolved the defendant of the
charge. See Beardslee, 358 F.3d at 578. “The burden on
[Byrd] is especially heavy where . . . the alleged error
involves the failure to give an instruction.” Clark, 450 F.3d at
904 (citation and internal quotation marks omitted).

   [2] Notwithstanding Byrd’s innocuous explanations for the
facts that he: (1) kept Coen’s car for five days; (2) did not
attempt to return Coen’s car; and (3) removed personal effects
from Coen’s car, the other evidence overwhelmingly demon-
strates that no reasonable juror would have concluded that
Byrd actually believed that Coen loaned Byrd her car tempo-
rarily or gave it to him. As the California Court of Appeal rea-
soned:

    [Byrd’s] claim that Coen lent him the car is convinc-
    ingly belied by the following facts: . . . [T]he car
    radio [was removed from the car] and . . . the interior
    of the car had been damaged . . . . It is even less like-
    ly[ ] that the jury would have thought [Byrd]
    believed Coen gave him the car permanently. This
    would have required the jury to conclude that [peti-
    tioner] believed a thoroughly intoxicated woman,
    whom he barely knew, would intentionally give him
    the gift of a 1984 Ford Mustang containing her per-
    sonal items including her purse.

Byrd, 2001 WL 1480516, at * 6; see also Beardslee, 358 F.3d
at 578 (concluding that failure to provide a correct mistake-
5848                         BYRD v. LEWIS
of-fact jury instruction was not prejudicial where “a signifi-
cant amount of evidence countered the mistake-of-fact theo-
ry.”). Accordingly, the California Court of Appeal’s ruling
regarding failure of the trial court to sua sponte instruct the
jury on mistake-of-fact was not contrary to or an unreasonable
application of clearly established Federal law. We affirm the
district court’s denial of habeas relief as to this claim.

               B.     Scope-of-Consent Instruction

   [3] Byrd also challenges the trial court’s scope-of-consent
instruction, which provided:

      The failure to return a vehicle that was obtained by
      consent in a timely manner does not by itself estab-
      lish a violation of section 10851 . . . . You should
      determine from the circumstances whether the con-
      tinued use of a vehicle both as to the length of time
      and the manner clearly and substantially exceeded
      the scope of the consent given. If it does not clearly
      and substantially exceed the scope of the consent
      given, then the required criminal intent would not be
      clearly established.

Byrd, 2001 WL 1480516, at * 7 (emphasis added).6 According
to Byrd, this instruction diluted the prosecution’s burden of
proof, thereby violating his right to due process. The Califor-
nia Court of Appeal agreed, reasoning that because a “clearly
established” standard was applied to define the requisite crim-
inal intent, “it is reasonably likely the jury did not find that
[Byrd] exceeded Coen’s scope of consent beyond a reason-
  6
    The scope-of-consent instruction was given both orally and in writing.
The oral scope-of-consent instruction differed from the written instruction,
adding the word “clearly” to modify the criminal intent requirement. How-
ever, because Byrd’s contention is that the instruction diluted the beyond-
a-reasonable doubt standard, the difference in the oral and written instruc-
tions is immaterial.
                            BYRD v. LEWIS                           5849
able doubt . . .” Byrd, 2001 WL 1480516, at * 10. The Cali-
fornia Court of Appeal expressly noted that the scope-of-
consent instruction permitted the jury to “conclude[ ] [that
Byrd’s] ‘criminal intent’ to keep the car beyond [Coen’s] per-
mission need only be ‘clearly established’ . . . if the jury
decided [Byrd] ‘clearly and substantially exceeded’ the scope
of Coen’s consent.” Byrd, 2001 WL 1480516, at * 10. Ulti-
mately, the California Court of Appeal held that “it is reason-
ably likely the jury did not find that [Byrd] exceeded Coen’s
scope of consent beyond a reasonable doubt, thus, violating
[Byrd’s] right to due process of law.” Byrd, 2001 WL
1480516, at * 10. However, the California Court of Appeal
concluded that harmless error analysis was applicable because
the instruction was “an error that acknowledges the element,
but subjects the element to a lesser burden of proof.” Id. at *
11.

   [4] The California Court of Appeal’s determination that the
jury likely “did not find that [Byrd] exceeded Coen’s scope of
consent beyond a reasonable doubt,” id., was not contrary to
or an unreasonable application of governing Supreme Court
precedent.7

   Our esteemed concurring colleague disagrees with the Cali-
fornia Court of Appeal’s determination. See Concurring Opin-
ion, p. 5860. However, with respect, our precedent is clear
that, on habeas review, it is not our task to independently ana-
lyze the challenged ruling. Rather, we “defer to the state
court’s ultimate decision.” Musladin v. Lamarque, 555 F.3d
830, 835 (9th Cir. 2009). “[W]e are bound to presume that
state courts know and follow the law, and we have been
instructed that state-court decisions be given the benefit of the
doubt.” Id. at 838 n.6 (citation, alteration and internal quota-
tion marks omitted). This direction applies with even greater
force when a state court is analyzing a jury instruction devel-
  7
   The parties do not dispute the fact that the California Court of Appeal
found constitutional error.
5850                      BYRD v. LEWIS
oped under state law. See Waddington v. Sarausad, 129 S. Ct.
823, 833-35 (2009) (emphasizing that this Court must review
a state court’s resolution of an error in a state-law jury
instruction “through the deferential lens of AEDPA”). Our
concurring colleague’s in-depth de novo analysis of the state
court’s reasoning, see Concurring Opinion at pp. 5861-63,
strays from the dictates of our deferential habeas review. We
are not inclined to follow that path. Indeed, in concluding that
the jury instruction rose to the level of constitutional error, the
California Appeal followed well-established Supreme Court
precedent. See e.g., Carella v. California, 491 U.S. 263, 266
(concluding that an instruction that “the jury might have
understood . . . as shifting the burden of persuasion [on ele-
ments of the offense] . . . was constitutional error”). Instruc-
tional error directed toward an element of the offense may rise
to the level of a constitutional defect. See Neder v. United
States, 527 U.S. 1, 9-10 (1999) (noting and citing cases recog-
nizing that improper jury instructions addressing an element
of the offense rose to the level of constitutional error).

   Having determined that constitutional error occurred, we
now consider the challenged instruction in light of the jury
instructions “taken as a whole” to determine its effect on the
proceedings. Victor v. Nebraska, 511 U.S. 1, 5 (1994).

   [5] It is undisputed that several jury instructions were read
that described the beyond-a-reasonable-doubt burden of
proof. There has been no argument that these instructions
were defective in any way. Therefore, the only question is
whether the defective scope-of-consent instruction was of
such a nature that the California Court of Appeal committed
reversible error when it applied harmless error analysis to the
instructional error made by the state trial court.

   [6] The United States Supreme Court has definitively ruled
that a defective reasonable-doubt instruction is not subject to
harmless error review. Rather, a jury instruction that relieves
the prosecution of its obligation to prove the defendant’s guilt
                        BYRD v. LEWIS                         5851
beyond a reasonable doubt constitutes structural error, not
subject to harmless error review. See Sullivan v. Louisiana,
508 U.S. 275, 281 (1993).

   In describing the type of reasonable-doubt instruction that
is not amenable to harmless error review, the Court referenced
the instruction given by the trial court in Cage v. Louisiana,
498 U.S. 39 (1990) (per curiam), reversed on another ground
in Estelle v. McGuire, 502 U.S. 62, 72 n.4 (1991). See Sulli-
van, 508 U.S. at 277. That instruction stated:

       If you entertain a reasonable doubt as to any fact
    or element necessary to constitute the defendant’s
    guilt, it is your duty to give him the benefit of that
    doubt and return a verdict of not guilty. Even where
    the evidence demonstrates a probability of guilt, if it
    does not establish such guilt beyond a reasonable
    doubt, you must acquit the accused. This doubt,
    however, must be a reasonable one; that is one that
    is founded upon a real tangible substantial basis and
    not upon mere caprice and conjecture. It must be
    such doubt as would give rise to a grave uncertainty,
    raised in your mind by reasons of the unsatisfactory
    character of the evidence or lack thereof. A reason-
    able doubt is not a mere possible doubt. It is an
    actual substantial doubt. It is a doubt that a reason-
    able man can seriously entertain. What is required is
    not an absolute or mathematical certainty, but a
    moral certainty. Cage, 498 U.S. at 40 (citation omit-
    ted) (emphases in the original).

  Concluding that the instruction was unconstitutional, the
Supreme Court explained:

       The charge did at one point instruct that to con-
    vict, guilt must be found beyond a reasonable doubt;
    but it then equated a reasonable doubt with a “grave
    uncertainty” and an “actual substantial doubt,” and
5852                     BYRD v. LEWIS
    stated that what was required was a “moral certain-
    ty” that the defendant was guilty. It is plain to us that
    the words “substantial” and “grave,” as they are
    commonly understood, suggest a higher degree of
    doubt than is required for acquittal under the
    reasonable-doubt standard. When those statements
    are then considered with the reference to “moral cer-
    tainty,” rather than evidentiary certainty, it becomes
    clear that a reasonable juror could have interpreted
    the instruction to allow a finding of guilt based on a
    degree of proof below that required by the Due Pro-
    cess Clause.

Id. at 41 (footnote reference omitted).

   In explaining why this reasonable-doubt instructional error
was not subject to harmless error review, the Supreme Court
in Sullivan observed that the Sixth Amendment requires a jury
verdict of guilt beyond a reasonable doubt. Because “an
instruction of the sort” given by the trial courts in Cage and
in Sullivan did not adequately inform the jury of the meaning
of reasonable doubt, the resulting verdict necessarily fell short
of the constitutional requirement of a finding of guilt beyond
a reasonable doubt. See Sullivan, 508 U.S. at 278.

   [7] The Court made a distinction between a defective
reasonable-doubt instruction, which is not subject to harmless
error review, and an error regarding an element of the offense,
which is subject to harmless error review. Id. In making that
distinction, the Court gave as an example “[a] mandatory pre-
sumption . . . that a person intends the ordinary consequences
of his voluntary acts . . .” Id. Although such a presumption
“violates the Fourteenth Amendment, because it may relieve
the State of its burden of proving all elements of the offense,”
id. (citations omitted), the overarching reasonable doubt
instruction ensures that the “predicate facts” underlying the
presumption are found beyond a reasonable doubt. Id. No
such assurance exists when the reasonable doubt instruction
                          BYRD v. LEWIS                        5853
itself is constitutionally inadequate to guide the jury’s deliber-
ations. In such a circumstance, “the essential connection to a
beyond a reasonable doubt factual finding cannot be made,”
id. at 281, because the “misdescription of the burden of proof
. . . vitiates all the jury’s findings.” Id. (internal quotation
marks omitted) (emphasis in the original).

   [8] The Court expounded on this distinction in Neder, when
it addressed the effect of the trial court’s failure to include in
the jury instructions the materiality element of the charged
offense of tax fraud. See id. at 4, 8. In reaching its conclusion
that the omission was subject to harmless error review, the
Court emphasized that it had “often applied harmless-error
analysis to cases involving improper instructions on a single
element of the offense.” Id. at 9-10 (citations omitted). The
Court analogized jury instructions that misdescribe or omit
elements to conclusive presumptions, such as those discussed
in Sullivan, that are subject to harmless error review. See
Neder, 527 U.S. at 10.

   The Court reiterated that the defective overarching reason-
able doubt instruction in Sullivan was not subject to harmless
error analysis “because it vitiate[d] all the jury’s findings . . .”
id. at 11 (citation and internal quotation marks omitted). By
way of contrast, the instructional error in Neder — omission
of the materiality element of the tax fraud offense — did not
“vitiate all the jury’s findings.” Id. (citations, alteration and
internal quotation marks omitted). The error prevented the
jury from making a finding on the element of materiality
rather than preventing the jury from making a finding on the
charged crime of tax fraud. See id.

   Coincidentally, in Neder the court discussed Carella, a case
that is strikingly similar to the facts of this case. See Neder,
527 U.S. at 10-12. In Carella, 491 U.S. at 264, the defendant
was convicted of grand theft when he failed to return a rental
car. The following jury instructions were given:
5854                       BYRD v. LEWIS
      (1)   Presumption Respecting Theft by Fraud:

               Intent to commit theft by fraud is pre-
            sumed if one who has leased or rented the
            personal property of another pursuant to a
            written contract fails to return the personal
            property to its owner within 20 days after
            the owner has made written demand by cer-
            tified or registered mail following the expi-
            ration of the lease or rental agreement for
            return of the property so leased or rented.

      (2) Presumption Respecting Embezzlement of a
      Leased or Rented Vehicle:

               Whenever any person who has leased or
            rented a vehicle wilfully and intentionally
            fails to return the vehicle to its owner
            within five days after the lease or rental
            agreement has expired, that person shall be
            presumed to have embezzled the vehicle.

Id.

   The Court in Neder recognized that the jury’s conviction of
the defendant in Carella was not “a complete verdict because
the conclusive presumption directly foreclosed independent
jury consideration of whether the facts proved established cer-
tain elements of the offenses.” Neder, 527 U.S. at 12. Never-
theless, harmless error review was applicable because the
guilty verdict did not vitiate the jury’s finding of grand theft.
See id.

   [9] Most recently, the Supreme Court addressed the struc-
tural error-harmless error dichotomy in Hedgpeth v. Pulido,
129 S. Ct. 530 (2008). The Court re-emphasized the breadth
of trial errors that are subject to harmless error review. See id.
at 532 (describing Neder and other cases involving omitted
                            BYRD v. LEWIS                          5855
and misstated jury instructions). The Court reinforced the
holding in Neder that unless all the jury’s findings are viti-
ated, harmless error review applies. See id. In Pulido, the
Court left no doubt that its intent in Neder was to limit struc-
tural error review to those trial deficiencies that negated all
the jury’s findings, rather than to a preliminary finding that
merely contributed to the ultimate determination of guilt. See
id.

   Applying these precepts to the facts of this case leads to the
conclusion that the California Court of Appeal’s application
of harmless error to the challenged jury instruction was not an
unreasonable application of Supreme Court precedent.

   [10] Although the scope-of-consent instruction “subjected
[that] element to a lesser burden of proof,” Byrd, 2001 WL
1480516 at *11, the misstatement regarding that element did
not “vitiate all the jury’s findings.” Neder, 527 U.S. at 11.
Rather, it only prevented the jury from making a complete
finding on the scope-of-consent element. The jury’s finding
on the charged crime of unlawfully taking a vehicle was not
vitiated. See id.

   We recognize that our decision in Gibson reaches a differ-
ent outcome. In Gibson, we also addressed a California state
court decision, which was before us on appeal of a grant of
a writ of habeas corpus. As pertinent to this discussion, Gib-
son was convicted of forcible oral copulation and anal and
genital penetration by foreign object or force or violence (col-
lectively, sexual offenses), against the victim, his spouse. See
Gibson, 387 F.3d at 817. At the state court trial, evidence of
prior uncharged sexual offenses against the victim was admit-
ted. See id.8
  8
   Gibson’s conviction for corporal injury to a spouse was subject to the
admission of similar uncharged acts of domestic violence.
5856                    BYRD v. LEWIS
  The jury was instructed as follows regarding the reasonable
doubt burden of proof:

       Each fact which is essential to complete a set of
    circumstances necessary to establish the defendant’s
    guilt must be proved beyond a reasonable doubt. In
    other words, before an inference essential to estab-
    lish guilt may be found to have been proved beyond
    a reasonable doubt, each fact or circumstance on
    which the inference necessarily rests must be proved
    beyond a reasonable doubt.

Id. at 821.

      In deciding whether or not to testify, the defendant
    may choose to rely on the state of the evidence and
    upon the failure, if any, of the People to prove
    beyond a reasonable doubt every essential element
    of the charge against him. No lack of testimony on
    defendant’s part will make up for a failure of proof
    by the People so as to support a finding against him
    on any such essential element.

Id. at 821 n.7 (citation and alterations omitted).

       A defendant in a criminal action is presumed to be
    innocent until the contrary is proved, and in case of
    a reasonable doubt whether [his] guilty is satisfacto-
    rily shown, [he] is entitled to a verdict of not guilty.
    This presumption places upon the People the burden
    of proving [him] guilty beyond a reasonable doubt.

Id. at 821.

  The trial court in Gibson instructed the jury as follows
regarding the evidence of Gibson’s prior uncharged acts:

      If you find that the defendant committed a prior
    sexual offense, you may, but are not required to,
                         BYRD v. LEWIS                      5857
    infer that the defendant had a disposition to commit
    the same or similar type sexual offenses. If you find
    that the defendant had this disposition, you may, but
    are not required to, infer that he was likely to com-
    mit and did commit the crime or crimes of which he
    is accused.

Id. at 817.

  The jury was further instructed that:

       Within the meaning of the preceding instructions,
    the prosecution has the burden of proving by a pre-
    ponderance of the evidence that a defendant commit-
    ted sexual offenses and/or domestic violence other
    than those for which he is on trial.

       You must not consider this evidence for any pur-
    pose unless you find a preponderance of the evi-
    dence that a defendant committed the other sexual
    offenses and/or domestic violence.

Id. at 818.

   In granting relief to Gibson, we concluded that the instruc-
tions addressing the prior uncharged acts impermissibly low-
ered the burden of proof “for the permissive inference” to be
drawn from the uncharged acts. Id. at 822. We held that the
error was structural because the instructions “permitted the
jury to find Gibson guilty of the charged sexual offenses by
merely a preponderance of the evidence . . .” Id. at 825 (citing
Sullivan, 508 U.S. at 281-82). Further, we found this to be
clearly established constitutional law. See id.

   [11] However, Pulido instructs that “[a]n instructional error
arising in the context of multiple theories of guilt” does not
vitiate all the jury’s findings. Pulido, 129 S.Ct. at 532. The
jury could have convicted Gibson on the theory that the infer-
5858                    BYRD v. LEWIS
ence from the prior uncharged acts warranted a finding of
guilt, or it could have convicted Gibson on the theory that the
direct testimony of the victim regarding the charged offenses
warranted a finding of guilt, or on some combination of the
two theories. The instructional error affected only the theory
resting on the inference from the prior uncharged acts. Simi-
larly, in our case, Byrd could have been convicted on the the-
ory that he exceeded the scope of consent, or on the theory
that consent was never given. The instructional error affected
only the scope-of-consent theory. In such circumstances,
Pulido dictates the application of harmless error review. See
id.

   [12] Although we are reluctant to do so, we must overrule
Gibson to the extent that it applies structural error review to
an instructional error that affects only an element of the
offense, a permissible evidentiary inference, or a potential
theory of conviction, as opposed to an instructional error that
affects the overarching reasonable doubt standard of proof.
See Neder, 527 U.S. at 10; see also Pulido, 129 S.Ct. at 532
(citing Neder). Because Pulido “undercuts the theory or rea-
soning” of Gibson and the two cannot be reconciled, that por-
tion of the holding in Gibson has been effectively overruled
by the Supreme Court. See Miller v. Gammie, 335 F.3d 889,
900 (9th Circ. 2003) (en banc).

  Our concurring colleague questions the necessity of
addressing our holding in Gibson. See Concurring Opinion at
pp. 5864-65. The concurrence sees

    a principled distinction between the jury instructions
    at issue in Gibson and the instructions at issue here.
    The erroneous jury instructions in Gibson were not
    limited to a single element of the crimes charged.
    Rather, the instructions allowed the jury to find by
    a preponderance of the evidence that the defendant
    was guilty of the entire crime charged . . .
                          BYRD v. LEWIS                        5859
Id. at p. 5864 (emphasis in the original). However, with
respect, there is no rational distinction between the challenged
jury instruction in this case and the challenged instruction in
Gibson. In Gibson, the jury was instructed that if it found by
a preponderance of the evidence that the defendant committed
a prior sexual offense, it could use that finding to support an
inference that the defendant committed the crime for which he
was on trial. See Gibson, 387 F.3d at 817. In this case, the
jury was instructed that if it determined that the defendant
clearly and substantially exceeded the scope of consent given,
that fact would establish the offense of unlawfully driving or
taking a vehicle in violation of California Vehicle Code
§ 10851. See Byrd, 2001 WL 1480516, at *7. To say that the
Gibson instruction implicates the ultimate finding of guilt and
the Byrd instruction does not is analytical hairsplitting that
would make our precedent difficult to apply.

   [13] Pulido encompassed within its holding any instruc-
tional error that falls short of “categorically ‘vitiat[ing] all the
jury’s findings.’ ” 129 S.Ct. 532 (quoting Neder, 527 U.S. at
11) (emphasis in the original). The only instructional error
recognized by Pulido as vitiating all the jury’s findings is a
defective overarching reasonable-doubt instruction as articu-
lated in Sullivan. See id. The jury instruction in Gibson, which
addressed a finding to support an inference of guilt, was not
the equivalent of the overarching reasonable-doubt instruction
referenced in Pulido, Neder, and Sullivan. In fact, an overar-
ching reasonable-doubt instruction was given in Gibson, see
387 F.3d at 821 (reflecting the instruction setting forth the
government’s burden of proving the defendant guilty beyond
a reasonable doubt). Neither the Gibson panel nor the parties
noted any defect in that instruction. See id. By the process of
elimination, if the overarching reasonable-doubt instruction in
Gibson was not defective, Gibson’s holding applying struc-
tural error review to an instruction of a type other than that
identified by the Supreme Court is inconsistent with govern-
ing precedent. In short, Supreme Court precedent dictates
overruling that portion of Gibson, and concluding that the
5860                      BYRD v. LEWIS
state court’s harmless error review was not an unreasonable
application of Federal law.

                    IV.    CONCLUSION

   Because the trial court’s failure to sua sponte give a
mistake-of-fact instruction did not prejudice Byrd, and the
instructional error addressing the scope of consent was prop-
erly subjected to harmless error review, we AFFIRM the dis-
trict court’s denial of Byrd’s habeas petition.

  AFFIRMED.



WALLACE, Circuit Judge, concurring in the result:

   Although I agree with the majority that the district court’s
order should be affirmed, I write separately to highlight my
disagreement in two respects with the majority’s decision.
First, I do not believe it was reasonably likely that the jury
applied the scope-of-consent instruction in an unconstitutional
manner, and I would hold that the California Court of Appeal
unreasonably applied Supreme Court precedent when it
reached the opposite conclusion. Second, I believe it is unnec-
essary and unwise for this panel to attempt to “overrule” the
prior three-judge panel decision in Gibson v. Ortiz, 387 F.3d
812 (9th Cir. 2004).

                               I.

   The Supreme Court has directed that “in reviewing an
ambiguous instruction . . . we inquire whether there is a rea-
sonable likelihood that the jury has applied the challenged
instruction in a way that violates the Constitution.” Estelle v.
McGuire, 502 U.S. 62, 72 (1991) (internal quotation marks
omitted). Indeed, “the proper inquiry is not whether the
instruction ‘could have’ been applied in an unconstitutional
                         BYRD v. LEWIS                      5861
manner, but whether there is a reasonable likelihood that the
jury did so apply it.” Victor v. Nebraska, 511 U.S. 1, 6 (1994)
quoting Estelle, 502 U.S. at 72.

   The scope-of-consent jury instruction at issue here was
ambiguous. The court of appeal was therefore required, under
Estelle, to determine whether it was reasonably likely that the
jury applied the instruction in an unconstitutional manner.
The court of appeal held that it was, based on a question
posed by the jury during deliberations. The jury asked: “On
second element permission, if the permission was initially
given, when does permission run out[?]” The trial court
responded by directing the jury to the disputed scope-of-
consent instruction.

   Prior to deliberations, the trial court provided the jury with
three clearly-enumerated elements of the charged crime: (1)
the taking or driving of a vehicle, (2) without consent, and (3)
with specific intent to deprive the owner of title or possession.
Thus, when the jury inquired about the “second element” it
was referring specifically to the element of consent.

   To understand why it was unreasonable for the court of
appeal to conclude that the jury unconstitutionally applied the
instruction, it is important to review the court of appeal’s tex-
tual interpretation of the instruction. The court of appeal ana-
lyzed the last two sentences of the instruction independently.
With respect to the first, it held that the instruction imposed
a higher burden of proof than necessary on the consent ele-
ment, and therefore the “instructional shortcoming was to
defendant’s benefit and it is not error as to him.” People v.
Byrd, No. C034582, 2001 WL 1480516, at *9 (Cal. Ct. App.
Nov. 21, 2001), as modified on denial of reh’g (Dec. 20,
2001). Therefore, because the jury asked specifically about
the “second element” of consent, under the court of appeal’s
own analysis, the instruction the jury received was free from
constitutional error.
5862                       BYRD v. LEWIS
   It was only with respect to the final sentence of the instruc-
tion that the court of appeal found constitutional error. That
sentence involved the interplay between the elements of con-
sent and intent: “If [the use of the vehicle] does not clearly
and substantially exceed the scope of the consent given, then
the required criminal intent would not be clearly established.”
The court of appeal held that, once the word “not” was
removed from the sentence, the instruction impermissibly
allowed the jury to find intent based solely on a finding of
consent. Id. at *9-10. Furthermore, the court of appeal held
that the jury might make such a finding at a burden lower than
beyond a reasonable doubt. Id. at *10. All of these concerns,
however, dealt with the element of intent. Had the jury
requested clarification on the “third element,” and been
directed to the disputed instruction, it would have been rea-
sonable for the court of appeal to conclude the jury had
applied it in an unconstitutional manner. However, because
the jury only inquired about consent, then under the logic of
the court of appeal’s own interpretation, no constitutional
concerns were directly implicated.

   The court of appeal offers only one hypothetical situation
that could potentially explain how the jury, concerned only
with the “second element,” would have nonetheless applied
an unconstitutionally lowered burden of proof. The court rea-
soned:

      Upon consideration of [the consent element], the
      jury may have decided that Coen initially gave
      defendant permission to take her car for the evening,
      at which point it would have turned to the court’s
      instruction on the effect of Coen’s consent . . . on the
      second element of the offense.1 So doing, it may
      have concluded defendant’s “criminal intent” to keep
      the car beyond the owner’s permission need only be
  1
    Although the court uses the term “second element” it appears to be
referring to the third element of intent.
                         BYRD v. LEWIS                     5863
    “clearly established” and that it could be “clearly
    established,” if the jury decided defendant “clearly
    and substantially exceeded” the scope of Coen’s
    consent. Thus, we conclude it is reasonably likely
    the jury did not find that defendant exceeded Coen’s
    scope of consent beyond a reasonable doubt, thus,
    violating defendant’s right to due process of law.

Byrd, 2001 WL 1480516, at *10. Under this reasoning, to the
extent I can understand it, the jury would have been required,
initially, to read out the word “not” from the instructions. It
would have then needed to consider how the element of con-
sent affected the element of intent. Finally, the jury would
have been required to import a lower standard of proof from
the intent element when making its consent determination. I
do not believe it was reasonably likely that a jury would
engage in such tortured analysis.

   The majority faults my analysis of the court of appeal’s rea-
soning as improperly performing an “in-depth de novo”
review of the state appellate court’s decision. However, a
careful reading of the concurrence shows that is not what I
did. On habeas review, we are authorized to determine
whether a state court’s application of United States Supreme
Court precedent was “objectively unreasonable.” Williams v.
Taylor, 529 U.S. 362, 408-10 (2000). Here, the court of
appeal’s convoluted parsing of the scope-of-consent instruc-
tion clearly represents such an “objectively unreasonable”
application of Supreme Court law. See e.g., Johnson v. Texas,
509 U.S. 350, 368 (1993) (“[W]e do not engage in a technical
parsing of . . . the instructions, but instead approach the
instructions in the same way that the jury would — with a
‘commonsense understanding of the instructions in the light
of all that has taken place at the trial’ ”), quoting Boyde v.
California, 494 U.S. 370, 381 (1990).

                              II.

  Under my reasoning, that should have ended the case.
Instead, the majority goes on to hold that the court of appeal
5864                     BYRD v. LEWIS
reasonably applied established Supreme Court law when it
reviewed the disputed jury instruction for harmless error. As
argued above, I do not believe it is reasonably likely that the
jury actually applied the instructions in an unconstitutional
manner, so I would affirm without reaching this harmless
error issue. However, having decided to address the propriety
of applying harmless error review in this case, the majority
also “reluctant[ly]” decides to “overrule” the prior three-judge
panel decision in Gibson. This decision to attempt to “over-
rule” Gibson is both unnecessary and unwise. Therefore, I
depart from the majority’s analysis of this issue.

   The majority sees the need to “overrule” Gibson because it
assumes that Gibson controls the outcome of this case. How-
ever, there is a principled distinction between the jury instruc-
tions at issue in Gibson and the instructions at issue here. The
erroneous jury instructions in Gibson were not limited to a
single element of the crimes charged. Rather, the instructions
allowed the jury to find by a preponderance of the evidence
that the defendant was guilty of the entire crime charged,
requiring, the court held, structural error review. 387 F.3d at
824-25 (holding that the instruction was structural error
because it “permitted the jury to find Gibson guilty of the
charged sexual offenses by merely a preponderance of the
evidence”). In this case, the alleged erroneous instruction
allowed the jury, at most, to test only the element of consent
at a lower burden. This is not “analytical hairsplitting,” as the
majority apparently believes, but a reasoned and logical read-
ing of the respective instructions at issue. Gibson therefore
does not compel the application of structural error review
here, so we need not attempt to “overrule” it to reach the cor-
rect result.

   For similar reasons, it is also unnecessary for us to “over-
rule” Gibson “to the extent that it applies structural error
review to an instructional error that affects only . . . a poten-
tial theory of conviction,” where multiple theories of guilt are
asserted. Gibson held that, “[w]hen a court gives the jury
                         BYRD v. LEWIS                       5865
instructions that allow it to convict a defendant on an imper-
missible legal theory, as well as a theory that meets constitu-
tional requirements, ‘the unconstitutionality of any of the
theories requires that the conviction be set aside.’ ” Id. at 825,
quoting Boyde v. California, 494 U.S. 370, 379-80 (1990).
However, in this case, the alleged instructional error did not
give the jury the option of convicting Byrd on an impermissi-
ble legal theory. Rather, as discussed above, at most, the chal-
lenged instruction allowed the jury to find one element of the
charged crime pursuant to a lower burden of proof. Therefore,
we need not attempt to “overrule” Gibson’s holding with
respect to the use of structural error in multiple theories cases
in order to conclude that harmless error review is applicable
here. Whether Gibson now stands at odds with Supreme Court
precedent with respect to its multiple theories holding is an
issue that can be addressed in the future when Gibson’s hold-
ing is properly before us.
