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That was precisely the question addressed by the District Court when it sought to ascertain what the juryactually found. The court concluded that, while it is “possible” that the jury found that Pulido aided and abetted the robbery before the victim was killed, the court had “no way of determining whether this was the case.” App. to Pet. for Cert. 66a. Because that uncertainty left the court with “‘grave doubt as to the likely effect of [the] error on the jury’s verdict,’” it faithfully applied the standard mandated by Kotteakos and O’Neal and found that the error was not harmless. App. to Pet. for Cert. 66a. (quoting O’Neal, 513 U. S., at 435).
On appeal, Pulido contended that the judgment of the District Court should be affirmed whether the instructional error was viewed as structural error or as trial error. Brief of Appellee and Cross-Appellant in Nos. 05–15916, 05–16308 (CA9), pp. 53–64 (hereinafter Appellee’s Brief). He argued that the error was not harmless under Brecht and O’Neal because the substantial evidence that supported the invalid theory made it likely that the jury convicted him on that basis. Apelles’s Brief 55–64. In particular, Pulido noted that the “injurious effect” of this type of error “is greatest when the instruction compromises the defense by appearing to extend liability even to the factual scenario suggested by the defense evidence,” as was true in this case. Id., at 57 (internal quotation marks omitted and emphasis deleted). At oral argument, the parties’ contentions similarly focused on the Brecht standard and the result that harmless-error analysis required.
Less than two months after oral argument, and before the Court of Appeals issued its decision in this case, a different panel of the Ninth Circuit decided Lara v. Ryan, 455 F. 3d 1080 (2006). Lara was convicted of attempted murder by a jury that had been instructed that it could find him guilty under either an express malice theory o ran implied malice theory, the second of which is legally invalid. Id., at 1082. The Ninth Circuit described the erroneous instruction as a “structural error,” but it held that such an error does not necessitate reversal when a reviewing court can “determine with absolute certainty “that the defendant was not convicted under the erroneous theory. Id., at 1086. Because the jury “made a specific finding that Lara attempted to murder willfully, deliberately, and with premeditation,” the court concluded that it necessarily relied on the valid instruction and that reversal was therefore not required. Id., at 1086–1087.

In those limited instances in which this Court has found an error “structural,” we have done so because the error defies analysis by harmless-error standards. See Arizona
v. Fulminante, 499 U. S. 279, 309 (1991); see also United States v. Gonzalez-Lopez, 548 U. S. 140, 150 (2006) (quoting Sullivan v. Louisiana, 508 U. S. 275, 282 (1993); United States v. Cronic, 466 U. S. 648, 659, and n. 25 (1984)). Indeed, it is because the consequences “‘are necessarily unquantifiable and indeterminate’” that automatic reversal is required when such errors occur. Gonzalez-Lopez, 548 U. S., at 150 (quoting Sullivan, 508 U. S., at 282). That the court in Lara could be “‘absolutely certain’ that the jury relied upon the legally correct theory,” 455 F. 3d, at 1085, shows both that the error was susceptible of harmless-error analysis and that the court in fact found the error harmless despite repeatedly referring to it as “structural.”
Citing Lara, the Court of Appeals’ per curiam opinionlabeled the erroneous instruction in this case a structural error.2 As in Lara, the court then undertook a searching review of the parties’ evidence and the jury instructions to determine the error’s effect on the jury. Noting, among other things, that “[t]he typographical error in the contemporaneity instruction relied upon by the California Supreme Court introduces doubt into any inference to be drawn from the jury’s finding as to the special circumstance,” the court concluded that “the jury instructions leave open the possibility that the jury convicted Pulido on a legally impermissible theory.” Pulido v. Chrones, 487 F. 3d 669, 676 (CA9 2007). That possibility of reliance on the erroneous instruction is the “substantial and injurious effect” to which Brecht refers. Thus, although the Court of Appeals called the error in this case by the wrong name, it performed substantially the same analysis and reached the same conclusion as the District Court did when it applied the standard prescribed by Brecht.
Judge Thomas concurred separately both to defend the Lara decision and to demonstrate that harmless-error analysis also supports the panel’s result. 487 F. 3d, at 678–683. Unlike the District Court, Judge Thomas applied the harmless-error standard announced in Chapman
v. California, 386 U. S. 18 (1967), instead of looking to Brecht. 487 F. 3d, at 678. But his analysis similarly establishes that at least some jurors very likely relied on the impermissible late-joiner theory. Id., at 679–683.
The record before us clearly supports that conclusion. Indeed, even petitioner admits that the ambiguity in the robbery and murder instructions and the trial court’s confusing answers to the jury’s questions “combined to make it reasonably likely that the jury applied the instructions in an unconstitutional way.” Brief for Petitioner 18. That reasonable likelihood is sufficient to support the conclusion that the error was not harmless under Brecht. Because the District Court’s analysis was correct and the Court of Appeals’ result was substantially the same, I think this Court’s decision to remand for the purpose of obtaining a third analysis of the harmless-error issue is a misuse of scarce judicial resources. I would therefore affirm the judgment of the Court of Appeals.

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