I concur fully in the majority opinion, which finds that the instruction’s solitary reference to abortion as a potential candidate for great bodily injury in the abstract was not reasonably likely to have caused this jury to overlook or misapprehend the plainly stated requirement that defendant have personally inflicted the injury in the commission of the charged felony.1 I write separately to explain that even if it were otherwise, any error was harmless.
Defendant’s theory of prejudice rests entirely on the possibility that a juror might have found the great bodily injury enhancement true by considering only the abortion, which defendant did not personally inflict. Yet, as the majority opinion makes clear (see maj. opn., ante, at p. 66), the jury could properly have considered the abortion, a medical procedure the victim selected in response to her pregnancy, in assessing the magnitude of the injury occasioned by her pregnancy—which defendant unquestionably inflicted. Any juror who found that the abortion constituted great bodily injury under an erroneous understanding of the requirement of personal infliction could not have failed to find that K. suffered great bodily injury under the valid theory that the gravity of the pregnancy injury, which defendant admitted he had inflicted, could be measured by considering the circumstances of the abortion. Hence, any juror who erroneously relied on the abortion to find that defendant personally inflicted great bodily injury would also have found (1) that defendant personally inflicted the pregnancy and (2) that the pregnancy constituted significant or substantial physical injury in light of the abortion. It is thus “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error” (Neder v. United States (1999) 527 U.S. 1, 18 [144 L.Ed.2d 35, 119 S.Ct. *701827] (Neder)), which is the harmless-error inquiry under Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824] (Chapman). (Neder, supra, 527 U.S. at pp. 15, 18.)
Defendant does not deny that any error was harmless under this analysis or otherwise claim that the record “contains evidence that could rationally lead to a contrary finding.” (Neder, supra, 527 U.S. at p. 19.) Indeed, defendant does not actually apply the Chapman standard at all but divines prejudice nonetheless on the ground that the verdict is silent as to whether the jury necessarily found the great bodily injury enhancement true on a valid legal theory (i.e., that defendant personally inflicted the pregnancy) rather than on an invalid legal theory (i.e., that defendant personally inflicted the abortion). For this theory of prejudice, defendant relies on People v. Guiton (1993) 4 Cal.4th 1116 [17 Cal.Rptr.2d 365, 847 P.2d 45].2 Although Guiton observed that reliance on other portions of the verdict is “[o]ne way” of finding an instructional error harmless (Guiton, at p. 1130), we have never intimated that this was the only way to do so. Indeed, Guitón noted that we were not then presented with the situation of a jury’s having been instructed with a legally adequate and a legally inadequate theory and that we therefore “need not decide the exact standard of review” in such circumstances—although we acknowledged that “[tjhere may be additional ways by which a court can determine that error in [this] situation is harmless. We leave the question to future cases.” {Id. at p. 1131.) Because this case only now presents that issue, Guitón does not provide a dispositive answer to the question.
I note that a related issue is currently pending before the United States Supreme Court in Chrones v. Pulido, No. 07-544, cert, granted Feb. 25, 2008. Although the high court will obviously have the last word, I agree with the weight of existing authority, which applies the Chapman harmless-error standard in determining whether the submission to the jury of two legal theories, one valid and one invalid, requires reversal. The high court has already applied the Chapman framework where the instructions omit an element (Neder, supra, 527 U.S. at pp. 4, 15) or misdescribe an element (California v. Roy (1996) 519 U.S. 2, 5-6 [136 L.Ed.2d 266, 117 S.Ct. 337]). In both situations, the sole theory submitted to the jury is legally defective, yet the error is amenable to harmless-error analysis. (Accord, People v. Cole (2004) 33 Cal.4th 1158, 1208 [17 Cal.Rptr.3d 532, 95 P.3d 811] [“Under state law, instructional error that withdraws an element of a crime from the jury’s consideration is harmless if there is ‘no reasonable probability that the outcome of defendant’s trial would have been different had the trial court properly instructed the jury.’ ”]; People v. Breverman (1998) 19 Cal.4th 142, 165 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [misdirection of the jury under state *71law “is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.”].) In my view, an instructional error with respect to an element does not become more problematic simply because the jury may potentially have relied on an alternative theory that was entirely error free. Defendant’s argument “reduces to the strange claim that, because the jury here received both a ‘good’ charge and a ‘bad’ charge on the issue, the error was somehow more pernicious than in Rose [v. Clark (1986) 478 U.S. 570 [92 L.Ed.2d 460, 106 S.Ct. 3101]]— where the only charge on the critical issue was a mistaken one. That assertion cannot possibly be right, so it is plainly wrong.” (Quigley v. Vose (1st Cir. 1987) 834 F.2d 14, 16; accord, Becht v. U.S. (8th Cir. 2005) 403 F.3d 541, 548 [it would be “anomalous” to preclude harmless-error review under Chapman “because the jury also was given the option to convict based on a constitutionally valid theory . . .”]; cf. U.S. v. Edwards (5th Cir. 2002) 303 F.3d 606, 641 [holding that the standard of harmlessness set forth in Griffin v. United States (1991) 502 U.S. 46 [116 L.Ed.2d 371, 112 S.Ct. 466] applies “where a disjunctive instruction with a factually insufficient component is given, even if that component is also legally insufficient.”].)
To the extent defendant has simply assumed that his reading of Guitón is merely an application of the Chapman harmless-error standard, he is plainly mistaken, as the high court made clear in rejecting a similar argument made by the defendant in Neder, supra, 527 U.S. 1. Neder argued that an instructional error could be harmless in only three situations—(1) the defendant is acquitted of the offense on which the jury was improperly instructed, (2) the defendant admitted the element on which the jury was improperly instructed, or (3) other facts necessarily found by the jury are the functional equivalent of the omitted, misdescribed, or presumed element—but the high court flatly rejected this construct. (Neder, supra, 527 U.S. at pp. 13-15.) The proper test, as the court explained, “is whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” (Id. at p. 15, quoting Chapman, supra, 386 U.S. at p. 24.) This test does not depend on proof that the jury actually rested its verdict on the proper ground (Neder, supra, at pp. 17-18), but rather on proof beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error (id. at p. 18). Although the former can be proof of the latter (see id. at p. 26 (conc. opn. of Stevens, J.)), the Neder majority made clear that such a determination is not essential to a finding of hannlessness (id. at p. 16, fh. 1), which instead “will often require that a reviewing court conduct a thorough examination of the record” (id. at p. 19). Accordingly, an inability to show that the jurors unanimously found great bodily injury based on defendant’s act of impregnating the victim, and that no juror relied solely on the abortion, is properly understood as a predicate for the application of the *72Chapman harmless-error standard, not (as defendant mistakenly believes) the harmless-error analysis itself.
Under the proper analysis, it is obvious that any error was harmless. There was overwhelming and uncontradicted evidence, including DNA evidence, that defendant personally inflicted the pregnancy that was subsequently aborted. Indeed, defendant conceded he personally inflicted the pregnancy and even testified that he remembered which night K. became pregnant. The evidence that the pregnancy by itself was of sufficient magnitude to constitute great bodily injury was substantial. Any juror who failed to make such a finding and who relied instead on the abortion to establish great bodily injury would plainly have found, under correct instructions, that the pregnancy, when considered in light of that same abortion, established great bodily injury. The record here thus shows beyond a reasonable doubt that a rational jury would have found the great bodily injury enhancement true even in the absence of any asserted instructional error.
For this additional reason, I would affirm the judgment, including the jury’s finding that defendant personally inflicted great bodily injury on the 13-year-old victim when he impregnated her, the pregnancy proceeded nearly to the end of the second trimester, and the abortion terminating the pregnancy required a surgical dilation and extraction over two days. On this record, no rational juror could have found otherwise.
Chin, J., concurred.
However, the point might be clarified in future cases by instructing the jury along these lines: “A pregnancy may constitute great bodily injury. You may consider the circumstances and effects of the abortion of that pregnancy in determining whether the pregnancy constituted great bodily injury in this case.”
Defendant also cites People v. Morgan (2007) 42 Cal.4th 593, 613 [67 Cal.Rptr.3d 753,170 P.3d 129], but Morgan does nothing other than cite Guiton.