                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

ANASTACIO LARA,                           No. 05-16055
             Petitioner-Appellant,
               v.                           D.C. No.
                                         CV-04-01957-CRB
S. RYAN, Warden,
                                            OPINION
            Respondent-Appellee.
                                     
       Appeal from the United States District Court
         for the Northern District of California
       Charles R. Breyer, District Judge, Presiding

                 Argued and Submitted
         May 19, 2006—San Francisco, California

                   Filed August 1, 2006

       Before: Betty B. Fletcher, Alex Kozinski, and
           Raymond C. Fisher, Circuit Judges.

               Opinion by Judge B. Fletcher




                           8553
                      LARA v. RYAN                  8555


                      COUNSEL

Maitreya Badami, San Francisco, California, for the
petitioner-appellant.

Bill Lockyer, Robert R. Anderson, Gerald A. Engler, Peggy
S. Ruffra, and David M. Baskind (argued), San Francisco,
California, for the respondent-appellee.
8556                    LARA v. RYAN
                         OPINION

B. FLETCHER, Circuit Judge:

   Appellant Anastacio Lara (“Lara”) was convicted by a jury
of two counts of attempted murder and two counts of non-
aggravated mayhem. The jury was instructed that it could
convict him of attempted murder under either a proper theory
of express malice or an improper implied-malice theory. Lara
brought a petition for habeas corpus under 28 U.S.C. § 2254,
alleging that the flawed jury instruction made it impossible to
determine whether he was convicted under the correct legal
theory. The district court denied habeas relief, and we affirm.

                               I

  The California Court of Appeal determined, and Lara does
not challenge, the following summary of the facts:

        [Lara], Evencio Varela, and Martin Ortiz were
    neighbors. One evening, [Lara] and several guests
    were socializing and drinking beer in [Lara’s] front
    yard. Varela and Ortiz joined the group. At some
    point, [Lara] and Varela began arguing. [Lara]
    pushed Varela. Varela’s wife interceded and pushed
    [Lara] away from Varela. [Lara] then announced that
    he was going inside to get his gun. Varela and Ortiz
    went across the street to their homes. But they even-
    tually returned to [Lara’s] yard and continued social-
    izing. [Lara] appeared and approached Varela within
    two or three feet. Two of [Lara’s] friends grabbed
    Varela, and [Lara] took out a gun. [Lara] aimed the
    gun at Varela’s temple and shot Varela just as Varela
    was able to struggle and turn his head. The bullet
    broke Varela’s cheekbone and destroyed Varela’s
    right eye. Two people then grabbed Ortiz. [Lara]
    approached Ortiz and aimed the gun between Ortiz’s
    eyes. He shot Ortiz twice just as Ortiz was able to
                        LARA v. RYAN                          8557
    struggle and turn his head. The first bullet went into
    Ortiz’s mouth and destroyed his left eye. The second
    bullet went through Ortiz’s chest and out Ortiz’s
    back.

       [Lara] testified and offered a self-defense sce-
    nario. According to [Lara], (1) Varela was drunk,
    insulting, and belligerent, (2) Varela assaulted him
    and left to get a gun after challenging him to a gun-
    fight, (3) Varela returned and appeared to draw a
    gun, and (4) he pulled out his own gun in fear of his
    life and shot Varela and Ortiz. When asked whether
    his position was that he shot in self-defense, [Lara]
    answered, “exactly.” When asked whether he was
    trying to kill the two, [Lara] answered, “No, I was
    trying to defend myself. I just didn’t want to be both-
    ered any more.” [Lara’s counsel] argued to the jury:
    “This is not a case of attempted manslaughter. I am
    not here asking for an attempted manslaughter ver-
    dict. This is simply a case of self-defense. The num-
    ber one issue is self-defense. The number two issue
    is, did [Lara], in fact, even have the intent to kill?
    [Lara] didn’t even empty the gun, he just waited
    until both men started to hit the ground and then he
    ran. He could have easily fired the last shot if he
    really wanted to do them in, if he really wanted to
    kill them. He did not empty the gun. He simply
    stopped shooting after they fell to the ground.”

  The trial court instructed the jury as to attempted murder in
accordance with California Jury Instructions — Criminal
(“CALJIC”) No. 8.66, as follows:

       Murder is the unlawful killing of a human being
    with malice aforethought. In order to prove
    attempted murder, each of the following elements
    must be proved: One, a direct but ineffectual act was
    done by one person towards killing another human
8558                    LARA v. RYAN
    being, and, two, the person committing the act har-
    bored express malice aforethought, namely a specific
    intent to kill unlawfully another human being.

   However, the trial court defined “malice aforethought” by
instructing the jury under CALJIC No. 8.11, which includes
both an express and implied theory. According to the trial
court:

       “Malice” may be either expressed or implied.
    Malice is express when there is manifested an inten-
    tion unlawfully to kill a human being.

       Malice is implied when one, the attempted killing
    resulted from an intentional act, two, the natural con-
    sequences of the act are dangerous to human life,
    and, three, the act was deliberately performed with
    knowledge of the danger to, and with conscious dis-
    regard for, human life.

       When it is shown that an attempted killing
    resulted from the intentional doing of an act with
    express or implied malice, no other mental state need
    be shown to establish the mental state of malice
    aforethought.

       The mental state constituting malice aforethought
    does not necessarily require any ill will or hatred of
    the person the accused attempted to kill.

       The word “aforethought” does not imply delibera-
    tion or the lapse of considerable time. It only means
    that the required mental state must precede rather
    than follow the act.

  The prosecutor relied upon the implied-malice instruction
as well during closing argument:
                        LARA v. RYAN                         8559
       Now malice is defined in another instruction as
    either being expressed or implied . . . . Malice can
    be expressed by someone saying I intend to kill you
    or writing something down, but in this case we’re
    going to have to imply the defendant’s intent at the
    time he committed the act.

       There are three things that have to be proven for
    you to believe the defendant intended on killing
    either [Valera] or [Ortiz]. One, that it was an inten-
    tional act . . . .

       Second, that the natural consequences of that act
    are dangerous to life . . . .

      Then third, that the act was done deliberately with
    knowledge of the danger to and with conscious dis-
    regard for life . . . .

       That’s all I have to prove, ladies and gentlemen,
    for you to believe that the defendant intended on
    killing. If you find those three elements are met, the
    defendant is guilty of attempted murder.

   The jury convicted Lara of two counts of attempted murder
and two counts of non-aggravated mayhem. It also made a
separate factual finding that the attempted murders were will-
ful, deliberate and premeditated and that Lara intentionally
fired his gun. Lara received a sentence of 55 years to life.

   Lara appealed his sentence to the California Court of
Appeal, which affirmed the judgment. The State conceded,
and the court agreed, that “the jury was given conflicting
instructions on the mental state element of attempted murder.”
People v. Lara, No. H022525, 2002 WL 31667309, at *2
(Cal. Ct. App. Nov. 27, 2002). Nevertheless, the court upheld
the conviction under the harmless-error standard set forth in
8560                          LARA v. RYAN
Chapman v. California, 386 U.S. 18 (1967). The California
Supreme Court denied review.

                                     II

   Lara filed a petition for writ of habeas corpus in federal dis-
trict court.1 The federal district court held that the Chapman
harmless-error standard applied by the California Court of
Appeal does not govern cases where “a jury delivers a general
verdict that may rest on different theories, at least one of
which is constitutionally invalid.” In such cases, the district
court held, the error is structural, and “reversal of the convic-
tion is required unless the reviewing court can determine with
‘absolute certainty’ that the jury did not ground their findings
on a legally erroneous theory.” Although the federal district
court disagreed with the California Court of Appeal as to the
applicable standard, it concluded that Lara’s conviction never-
theless was “incompatible with an implied malice theory.” It
denied the habeas petition, and Lara filed a timely notice of
appeal.2

                                    III

   This court exercises de novo review of a district court’s
order denying habeas relief. Landrigan v. Schriro, 441 F.3d
638, 642 (9th Cir. 2006) (en banc). Because Lara filed his
petition after April 24, 1996, it is governed by the standard of
review set forth in the Antiterrorism and Effective Death Pen-
alty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d)(1). Under
AEDPA, Lara is entitled to a writ if the state court’s denial
of his claim “resulted in a decision that was contrary to, or
  1
     The petition was lodged in the United States District Court for the Cen-
tral District of California, but was transferred to the Northern District of
California.
   2
     Additional claims made in Lara’s petition to the district court are not
before us, as the district court granted Lara’s motion for a certificate of
appealability exclusively on the implied-malice instruction.
                            LARA v. RYAN                           8561
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States,” or was “based on an unreasonable determina-
tion of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d)(1), (2).3 A federal
court must presume the correctness of the state court’s factual
findings. 28 U.S.C. § 2254(e)(1).

   A state-court decision is “contrary to” clearly established
Supreme Court precedent if the decision “contradicts the gov-
erning law set forth in our cases.” Williams v. Taylor, 529
U.S. 362, 405 (2000). A state-court decision will constitute an
“unreasonable application” of federal law “if the state court
identifies the correct governing legal rule from this Court’s
cases but unreasonably applies it to the facts of the particular
state prisoner’s case.” Id. at 407. A federal habeas court may
not issue the writ simply by concluding in its independent
judgment that the state-court decision applied federal law
incorrectly. Id. at 411. “An ‘unreasonable application of fed-
eral law is different from an incorrect application of federal
law.’ ” Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (citing
Williams, 529 U.S. at 410 (emphasis in original)).

                                  IV

   It is not disputed that the trial court improperly instructed
the jury on the attempted-murder counts. The California
Supreme Court made clear in People v. Lee, 738 P.2d 752,
754 (Cal. 1987), that only a finding of express malice will
support a jury verdict for attempted murder. We must decide
whether, notwithstanding that error, the district court properly
denied habeas relief in this case.
  3
    State prisoners wishing to bring federal collateral challenges using
habeas must first exhaust available state remedies. 28 U.S.C. §§ 2254(b),
(c). Lara’s petition for review, rejected by the California Supreme Court
on February 11, 2003, satisfies the exhaustion requirement.
8562                      LARA v. RYAN
                                A

   [1] “[I]t has long been settled that when a case is submitted
to the jury on alternative theories the unconstitutionality of
any of the theories requires that the conviction be set aside.”
Sandstrom v. Montana, 442 U.S. 510, 526 (1979) (citation,
alternation, and internal quotation marks omitted). See also
Zant v. Stephens, 462 U.S. 862, 881 (1983) (“[A] general ver-
dict must be set aside if the jury was instructed that it could
rely on any of two or more independent grounds, and one of
those grounds is insufficient, because the verdict may have
rested exclusively on the insufficient ground.”); Yates v.
United States, 354 U.S. 298, 312 (1957) (“[T]he proper rule
to be applied is that which requires a verdict to be set aside
in cases where the verdict is supportable on one ground, but
not on another, and it is impossible to tell which ground the
jury selected.”), overruled on other grounds, Burks v. United
States, 437 U.S. 1 (1978); Stromberg v. California, 283 U.S.
359, 368 (1931) (“[I]f any of the clauses [of the statute] in
question is invalid under the Federal Constitution, the convic-
tion cannot be upheld.”). This line of cases, originating with
Stromberg, makes clear that “when a jury delivers a general
verdict that may rest either on a legally valid or legally invalid
ground[,] . . . the verdict may not stand when there is no way
to determine its basis.” Keating v. Hood, 191 F.3d 1053, 1062
(9th Cir. 1999), overruled on other grounds by Payton v.
Woodford, 346 F.3d 1204 (9th Cir. 2003) (en banc). See also
United States v. Fulbright, 105 F.3d 443, 451 (9th Cir.), cert.
denied, 520 U.S. 1236 (1997) (“Where a jury returns a gen-
eral verdict that is potentially based on a theory that was
legally impermissible or unconstitutional, the conviction can-
not be sustained.”) (emphasis in original).

   [2] “There is a limited exception to the principle: reversal
may not be required if ‘it is absolutely certain’ that the jury
relied upon the legally correct theory to convict the defen-
dant.” Keating, 191 F.3d at 1063 (citing Ficklin v. Hatcher,
177 F.3d 1147, 1152 (9th Cir. 1999) (emphasis in original)).
                         LARA v. RYAN                       8563
See Zant, 462 U.S. at 881 (“The cases in which this rule has
been applied all involved general verdicts based on a record
that left the reviewing court uncertain as to the actual ground
on which the jury’s decision rested.” (emphasis added)). We
have applied this “absolute certainty” principle in several
habeas cases. Keating, 191 F.3d at 1063 (reversing for lack of
absolute certainty where the jury was instructed on an aiding
and abetting theory and on a direct perpetrator theory, where
the latter was constitutionally infirm and where it was impos-
sible to determine which theory the jury relied on to convict
the defendant); Ficklin, 177 F.3d at 1152 (applying “absolute
certainty” test to affirm a conviction where the jury was
instructed under a correct and incorrect theory, one of which
placed the defendant in double jeopardy). But cf. Ho v. Carey,
332 F.3d 587, 592 (9th Cir. 2003) (applying harmless-error
standard where jury in second-degree murder trial was cor-
rectly instructed on implied malice, but erroneously instructed
on general intent).

   [3] Applying Chapman, the California Court of Appeal
considered whether it was beyond reasonable doubt that the
trial court’s implied malice instruction did not contribute to or
affect the verdict. This would have been the correct question
to ask had the trial court’s instruction simply omitted or
improperly described an element of the offense with which
Lara was charged. Instructions containing omissions or incor-
rect descriptions of elements are considered trial errors, not
structural errors. See Neder v. United States, 527 U.S. 1, 8-11
(1999) (jury instruction omitting materiality element of tax-
fraud offense is constitutional error subject to harmless error
analysis); California v. Roy, 519 U.S. 2, 5 (1996) (omission
of intent element from aiding and abetting instruction subject
to harmless error analysis where jury could have found intent
on evidence it considered). Here, however, the trial court did
not merely omit or misstate an element of the charged
offense. Rather, its error was structural, because it enabled the
jury to deliver a general verdict that potentially rested on dif-
ferent theories of guilt, at least one of which was constitution-
8564                      LARA v. RYAN
ally invalid. See Sandstrom, 442 U.S. at 526. As such, Lara’s
claim arises from the “very limited class of cases” in which
a structural error has occurred. Neder, 527 U.S. at 8 (quoting
Johnson v. United States, 520 U.S. 461, 468 (1997)).

   [4] We therefore disagree with the State’s argument that
Chapman’s harmless-error standard governs this case.
Supreme Court precedent, as well as our own case law,
requires reversal where a reviewing court cannot determine
with absolute certainty whether a defendant was convicted
under an erroneous theory. See LaJoie v. Thompson, 217 F.3d
663, 669 n.6 (9th Cir. 2000) (decisions by this court may be
relevant in determining the scope of “clearly established”
Supreme Court jurisprudence in a given area).

                                B

   The district court concluded that it was “absolutely certain”
that petitioner’s conviction did not rest on the constitutionally
infirm theory premised on implied malice and, consequently,
denied habeas relief on this issue. It agreed with much of the
analysis adopted by the California Court of Appeal, in partic-
ular its reliance on the fact that the jury specifically found that
petitioner’s actions were committed willfully, deliberately,
and with premeditation; that the jury was instructed several
times that a conviction for attempted murder requires a find-
ing of express malice; and that the jury’s question whether a
“specific intent to kill” necessitated a finding that Lara had a
“specific intent to permanently disable” indicated that it
would convict on an express-malice theory.

   [5] There is no doubt that both the trial court and the prose-
cutor told the jury that it could base a conviction for
attempted murder on express or implied malice, an instruction
contrary to California law. Lee, 738 P.2d at 754. The problem
was compounded by the prosecution’s reliance on the implied
malice instruction in its closing arguments to the jury. How-
ever, the trial court also instructed the jury numerous times on
                          LARA v. RYAN                        8565
the requirement of actual malice. Those instructions seem to
have made a lasting impression on the jury, which, during
deliberations, sent the court a note seeking “a clarification of
legal terms used in the instructions: if a person has a ‘specific
intent to kill,’ does that person have a ‘specific intent perma-
nently to disable’?”

   [6] In addition, the jury made a specific finding that Lara
attempted to murder willfully, deliberately, and with premedi-
tation — all of which would suggest that the jury found
express malice because the trial court had instructed the jury
that, to find the allegations true, it would have to find that “the
attempted murder was preceded and accompanied by a clear,
deliberate intent to kill” and the would-be slayer “weigh[ed]
and consider[ed] the question of killing” and “decide[d] to
kill.”

    [7] Had the jury relied on an incorrect implied-malice the-
ory, it would have had to find recklessness, i.e., it would have
had to determine that the act was intentional, that the natural
consequences of the act were dangerous to human life, and
that the act was deliberately performed with knowledge of the
danger to, and with conscious disregard for, human life. As
described above, the jury’s special findings necessitate the
conclusion that it found Lara guilty of attempted murder with
express malice. Cf. People v. Gallagher, 69 N.Y.2d 525, 529
(N.Y. 1987) (“One who acts intentionally in shooting a person
. . . — that is, with the conscious objective of bringing about
that result — cannot at the same time act recklessly — that
is, with conscious disregard of a substantial and unjustifiable
risk that such a result will occur. The act is either intended or
not intended; it cannot simultaneously be both.” (emphasis
added) (internal citations omitted)). Thus, because the jury
specifically found that Lara committed the murder attempts
willfully, deliberately and with premeditation, it necessarily
did not find that Lara committed the attempts recklessly,
which is what “a conscious disregard for human life” entails.
8566                     LARA v. RYAN
  This also makes it inconsequential that Lara’s jury did not
make its special findings until after it made its general finding
of guilt for attempted murder; logically, the jury could not
have found that Lara attempted murder willfully, deliberately
and with premeditation and that he attempted murder with
implied malice. The two are inconsistent.

   [8] In light of these considerations, we are absolutely cer-
tain that the jury convicted Lara under an express-malice the-
ory.

                               V

   Where it cannot be determined whether the jury convicted
under a correct or erroneous legal theory, we must reverse
unless we can determine with “absolute certainty” that the
jury convicted under the proper theory. In this case, we are
absolutely certain that the jury found express malice. We
therefore affirm the district court’s denial of the petition for
habeas corpus.

  AFFIRMED.
