A conviction based on a jury verdict where the jury was instructed on alternative theories of guilt, one of which was invalid, and the jury may have relied on the invalid one, is error but is not subject to reversal unless the invalid theory had a substantial and injurious effect or influence in determining the jury’s verdict. Appellant, convicted of felony murder, appealed, contending the jury instructions permitted the jury to find him guilty of felony murder on an invalid theory. The California Supreme Court agreed that one of the theories offered the jury was invalid but upheld the conviction on the ground appellant was not prejudiced. The federal district court granted relief after concluding that the invalid instruction the jury received had a substantial and injurious effect or influence on the verdict. (Brecht v. Abrahamson (1993) 507 U.S. 619.) The state appealed and the Court of Appeals affirmed, but described the error as “structural,” exempting the instructions as a whole from harmless-errror review. On writ of certiorari, the Supreme Court rejected the appellate court analysis, finding that instructional error as the alternative-theory error represented here, is not structural but can be harmless. As such they are governed by the “substantial and injurious effect” standard of Brecht. Expressing no view as to whether appellant was entitled to habeas relief, the court remanded the case to the appellate court for application of the Brecht standard. The dissent disagreed with the remedy, pointing out that although the appellate court misidentified the error as structural, it nevertheless analyzed it under Brecht and found that the error was substantial and injurious and rather than misusing scarce judicial resources by remanding the case, the Court should simply affirm the appellate court judgment.