Chapman or Watson: What is the Standard of Prejudice For Misinstruction on Defense Theory?
March 23rd, 2015


In People v. Watt (2014) 229 Cal. App. 4th 1215, 1217-1220 the trial judge failed to correctly instruct the jury on the defense theory of mistake of fact. On appeal the defendant cited three federal circuit court cases holding that the failure to instruct on a defense constituted federal constitutional error which, under the Chapman test, requires reversal unless the prosecution shows beyond a reasonable doubt that it was harmless. (Bradley v. Duncan (9th Cir. 2002) 315 F.3d 1091; Davis v. Strack (2d Cir. 2001) 270 F.3d 111; Barker v. Yukins (6th Cir. 1999) 199 F.3d 867.)


However, the Watt Court distinguished the cited cases because in each of those the failure to instruct deprived the defendant of his right to present a defense and so infected the entire trial that it violated due process and the right to a fair trial. (Bradley v. Duncan, supra, 315 F.3d at p. 1094; Davis v. Strack, supra, 270 F.3d at p. 131; Barker v. Yukins, supra, 199 F.3d at p. 876.)


The California Supreme Court has not yet determined the test of prejudice for failure to instruct on an affirmative defense. (See People v. Salas (2006) 37 Cal.4th 967, 984; Watt at 1218.) However, the Watt Court could not find any published opinion that embraces the Chapman standard for either the failure to instruct, or, as here, error in the instruction that was given. “Rather, published opinions have concluded that the Watson test applies. [Citations.]” (Watt at 1219.)


Nevertheless, the Court avoided directly ruling the issue by concluding that “under either test, the error does not require reversal of defendant’s conviction.” (Ibid.)

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