FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIMOTHY LEE BYRD, 

Petitioner-Appellant,

v. No. 06-15977

GAIL LEWIS, WARDEN, PLEASANT D.C. No.

VALLEY STATE PRISON; EDMUND G.  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
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, California for the respondent-appellee. 

5842 BYRD v. LEWIS
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.

1The 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). 

BYRD v. LEWIS 5843
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, intending 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, testi2Miranda v. Arizona, 384 U.S. 436 (1966). 

3

“While her car was missing, [Coen] temporarily lost her job.” Byrd,

2001 WL 1480516, at * 2. 

5844 BYRD v. LEWIS
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 petition for review, after which Byrd filed a federal petition for

a writ of habeas corpus. Byrd’s case was referred to a Magistrate Judge who recommended denying Byrd’s habeas petition. The Magistrate Judge’s Findings and Recommendations

were fully adopted by the district court. The district court subsequently granted a certificate of appealability on the following 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 unreasonable 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

BYRD v. LEWIS 5845
contradicts the governing law set forth in Supreme Court

cases, or (2) confronts a set of facts materially indistinguishable from a Supreme Court decision and nevertheless arrives

at a different result.” Gibson, 387 F.3d at 814 (citations omitted). “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 demonstrating 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. Accordingly, 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 conviction represents the last reasoned state court decision. 

5Although 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). 

5846 BYRD v. LEWIS
obtain relief, “[Byrd] must show that the alleged instructional

error had substantial and injurious effect or influence in determining 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 “substantial 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 demonstrates that no reasonable juror would have concluded that

Byrd actually believed that Coen loaned Byrd her car temporarily or gave it to him. As the California Court of Appeal reasoned: 

[Byrd’s] claim that Coen lent him the car is convincingly 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 likely[ ] that the jury would have thought [Byrd]

believed Coen gave him the car permanently. This

would have required the jury to conclude that [petitioner] believed a thoroughly intoxicated woman,

whom he barely knew, would intentionally give him

the gift of a 1984 Ford Mustang containing her personal 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 mistakeBYRD v. LEWIS 5847
of-fact jury instruction was not prejudicial where “a significant amount of evidence countered the mistake-of-fact theory.”). 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 establish a violation of section 10851 . . . . You should

determine from the circumstances whether the continued 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 California Court of Appeal agreed, reasoning that because a “clearly

established” standard was applied to define the requisite criminal intent, “it is reasonably likely the jury did not find that

[Byrd] exceeded Coen’s scope of consent beyond a reason6The 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. However, because Byrd’s contention is that the instruction diluted the beyonda-reasonable doubt standard, the difference in the oral and written instructions is immaterial.

5848 BYRD v. LEWIS
able doubt . . .” Byrd, 2001 WL 1480516, at * 10. The California Court of Appeal expressly noted that the scope-ofconsent instruction permitted the jury to “conclude[ ] [that

Byrd’s] ‘criminal intent’ to keep the car beyond [Coen’s] permission 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. Ultimately, the California Court of Appeal held that “it is reasonably 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 California Court of Appeal’s determination. See Concurring Opinion, p. 5860. However, with respect, our precedent is clear

that, on habeas review, it is not our task to independently analyze 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 quotation marks omitted). This direction applies with even greater

force when a state court is analyzing a jury instruction devel7The parties do not dispute the fact that the California Court of Appeal

found constitutional error. 

BYRD v. LEWIS 5849
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 elements of the offense] . . . was constitutional error”). Instructional 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 recognizing 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

5850 BYRD v. LEWIS
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 Sullivan, 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 reasonable doubt is not a mere possible doubt. It is an

actual substantial doubt. It is a doubt that a reasonable 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 omitted) (emphases in the original). 

Concluding that the instruction was unconstitutional, the

Supreme Court explained: 

The charge did at one point instruct that to convict, 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

BYRD v. LEWIS 5851
stated that what was required was a “moral certainty” 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 certainty,” 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 Process 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 presumption . . . 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

5852 BYRD v. LEWIS
itself is constitutionally inadequate to guide the jury’s deliberations. 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 reasonable 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: 

BYRD v. LEWIS 5853
(1) Presumption Respecting Theft by Fraud:

Intent to commit theft by fraud is presumed 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 certified or registered mail following the expiration 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 certain elements of the offenses.” Neder, 527 U.S. at 12. Nevertheless, 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 structural 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

5854 BYRD v. LEWIS
and misstated jury instructions). The Court reinforced the

holding in Neder that unless all the jury’s findings are vitiated, harmless error review applies. See id. In Pulido, the

Court left no doubt that its intent in Neder was to limit structural 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 different 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, Gibson was convicted of forcible oral copulation and anal and

genital penetration by foreign object or force or violence (collectively, 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 admitted. See id.

8

8Gibson’s conviction for corporal injury to a spouse was subject to the

admission of similar uncharged acts of domestic violence. 

BYRD v. LEWIS 5855
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 establish 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 satisfactorily 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,

5856 BYRD v. LEWIS
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 commit 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 preponderance of the evidence that a defendant committed sexual offenses and/or domestic violence other

than those for which he is on trial. 

You must not consider this evidence for any purpose unless you find a preponderance of the evidence that a defendant committed the other sexual

offenses and/or domestic violence.

Id. at 818. 

In granting relief to Gibson, we concluded that the instructions addressing the prior uncharged acts impermissibly lowered 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 inferBYRD v. LEWIS 5857
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. Similarly, in our case, Byrd could have been convicted on the theory 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 reasoning” of Gibson and the two cannot be reconciled, that portion 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 . . . 

5858 BYRD v. LEWIS
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 instructional 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 articulated 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 overarching 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 structural error review to an instruction of a type other than that

identified by the Supreme Court is inconsistent with governing precedent. In short, Supreme Court precedent dictates

overruling that portion of Gibson, and concluding that the

BYRD v. LEWIS 5859
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 properly subjected to harmless error review, we AFFIRM the district 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 unnecessary 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 reasonable 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

5860 BYRD v. LEWIS
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-ofconsent 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 textual interpretation of the instruction. The court of appeal analyzed 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 element, 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. 

BYRD v. LEWIS 5861
It was only with respect to the final sentence of the instruction that the court of appeal found constitutional error. That

sentence involved the interplay between the elements of consent 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 reasonable 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 reasoned: 

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

1Although the court uses the term “second element” it appears to be

referring to the third element of intent. 

5862 BYRD v. LEWIS
“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 consent 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 reasoning 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 instruction 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

BYRD v. LEWIS 5863
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 “overrule” 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. However, there is 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,

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 reading 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 correct result. 

For similar reasons, it is also unnecessary for us to “overrule” Gibson “to the extent that it applies structural error

review to an instructional error that affects only . . . a potential theory of conviction,” where multiple theories of guilt are

asserted. Gibson held that, “[w]hen a court gives the jury

5864 BYRD v. LEWIS
instructions that allow it to convict a defendant on an impermissible legal theory, as well as a theory that meets constitutional 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 impermissible legal theory. Rather, as discussed above, at most, the challenged 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 holding is properly before us.

BYRD v. LEWIS 5865