concurring and dissenting:
Although I agree with the majority on the mistake of fact issue, I respectfully dissent from the remainder of the majority’s decision on two grounds. First, I do *1052not 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, even if the court were correct on the first issue, I do not believe the California Court of Appeal unreasonably applied Supreme Court law when it reviewed the disputed instruction for harmless error.
I.
The Supreme Court has established 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, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (internal quotation marks omitted). Indeed, “the proper inquiry is not whether the instruction ‘could have’ been applied in an unconstitutional manner, but whether there is a reasonable likelihood that the jury did so apply.” Victor v. Nebraska, 511 U.S. 1, 6, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994).
The jury instruction at issue here was ambiguous. The California 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 held that it was, based on a question posed by the jury during deliberations. The jury asked: “On second element permission, if the permission was initially given, when does permission run out[?]” The trial court responded by directing the jury to the disputed scope-of-consent instruction.
Prior to deliberations, the court provided the jury with three clearly-enumerated elements of the charged crime: (1) 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” they were referring specifically to the element of consent.
To understand why it was unreasonable for the California Court of Appeal to conclude that the jury unconstitutionally applied the instruction, it is important to review the Court of Appeal’s somewhat convoluted textual interpretation of the instruction. The court analyzed the last two sentences of the instruction independently. With respect to the first, the court held that it imposed a higher burden of proof 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.
It was only with respect to the final sentence of the instruction that the California 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 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. Furthermore, the court held that the jury might make such a finding at a burden lower than beyond a reasonable doubt. 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 *1053disputed instruction, it would have been reasonable for the California 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’s own interpretation, no constitutional concerns were directly implicated.
The California 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 “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 any jury would engage in such tortured analysis. That should have ended this case.
II.
But, the majority holds that the California Court of Appeal unreasonably, 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 the issue of structural error. However, even assuming the jury actually applied the instruction unconstitutionally, under the facts of this case, I do not believe Supreme Court precedent compelled the California Court of Appeal to conclude there was structural error. Therefore, I depart from the majority’s analysis.
The majority points to Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), for the proposition that any time a jury instruction “consists of a misdescription of the burden of proof, [it] vitiates all the jury’s findings.” Id. at 281, 113 S.Ct. 2078. I do not believe Sullivan can be stretched to such a broad proposition. In Sullivan, the trial court gave the jury a single definition of “reasonable doubt.” Id. at 277, 113 S.Ct. 2078. That definition was unconstitutional, and it infected all of the jury’s findings. The Court only found that the instruction “vitiates all the jury’s findings,” because the instruction applied to all of the jury’s findings. Id. at 281, 113 S.Ct. 2078. Not surprisingly, the Supreme Court held that there was nothing “upon which harmless-*1054error scrutiny can operate.” Id. at 280, 113 S.Ct. 2078.
The facts of this case are far different. On several occasions, the trial court instructed the jury that each factual finding and element of the crime had to be supported by proof beyond a reasonable doubt. Under the California Court of Appeal’s analysis, it was only with respect to the single issue of consent that the jury could — through its tortured reading of the instruction — potentially have determined that a lower burden was appropriate. Unlike Sullivan, in which all of the jury’s findings were infected, the error in this case was discrete. It was limited to a single hypothetical interpretation of a single sentence with respect to a single element of the crime. Therefore, I do not believe it was an unreasonable application of Supreme Court precedent for the court to analogize this case more closely to Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987), in which the Court applied harmless error review to jury instructions that misstated a single element of the offense.
Finally, although the facts of our decision in Gibson v. Ortiz, 387 F.3d 812 (9th Cir.2004) are more analogous than those of Sullivan, “the only definitive source of clearly established federal law under AEDPA is the holdings ... of the Supreme Court as of the time of the state court decision.” Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.2003). While circuit law, like Gibson, may provide “persuasive authority” for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, “only the Supreme Court’s holdings are binding on the state courts and only those holdings need be reasonably applied.”
Id. Because the facts of this case are materially distinguishable from those in Sullivan, I conclude it was not an unreasonable application of clearly established federal law for the court to apply harmless error review.
. Although the court uses the term “second element” it appears to be referring to the third element of intent.