FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANASTACIO LARA, 

No. 05-16055 Petitioner-Appellant,

D.C. No.

v.  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
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. 

LARA v. RYAN 8555
OPINION

B. FLETCHER, Circuit Judge: 

Appellant Anastacio Lara (“Lara”) was convicted by a jury

of two counts of attempted murder and two counts of nonaggravated 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 eventually returned to [Lara’s] yard and continued socializing. [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

8556 LARA v. RYAN
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 scenario. 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 gunfight, (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 bothered 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 verdict. This is simply a case of self-defense. The number 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

LARA v. RYAN 8557
being, and, two, the person committing the act harbored 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 intention unlawfully to kill a human being. 

Malice is implied when one, the attempted killing

resulted from an intentional act, two, the natural consequences of the act are dangerous to human life,

and, three, the act was deliberately performed with

knowledge of the danger to, and with conscious disregard 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 deliberation 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: 

8558 LARA v. RYAN
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 intentional 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 disregard 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 willful, 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

LARA v. RYAN 8559
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 district 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 conviction 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 nevertheless 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 Penalty 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

1The petition was lodged in the United States District Court for the Central District of California, but was transferred to the Northern District of

California. 

2Additional 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. 

8560 LARA v. RYAN
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 determination 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 governing 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 federal 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. 

3State 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. 

LARA v. RYAN 8561
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 verdict 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 conviction 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 general verdict that is potentially based on a theory that was

legally impermissible or unconstitutional, the conviction cannot 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 defendant.” Keating, 191 F.3d at 1063 (citing Ficklin v. Hatcher,

177 F.3d 1147, 1152 (9th Cir. 1999) (emphasis in original)).

8562 LARA v. RYAN
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 impossible 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 correctly 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 incorrect 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 taxfraud 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 different theories of guilt, at least one of which was constitutionLARA v. RYAN 8563
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 particular 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 finding 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 prosecutor 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. However, the trial court also instructed the jury numerous times on

8564 LARA v. RYAN
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 permanently to disable’?” 

[6] In addition, the jury made a specific finding that Lara

attempted to murder willfully, deliberately, and with premeditation — 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 theory, 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.

LARA v. RYAN 8565
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 certain that the jury convicted Lara under an express-malice theory.

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.

8566 LARA v. RYAN