PG X(C) Nature Of The Error Determines Standard Of Prejudice. As discussed in FORECITE PG VII(C), many jury instruction errors may be characterized as federal constitutional error. In some cases, such as the failure to instruct on the elements of the charge, the error may be reversible per se under the federal constitution. (See People v. Cummings (93) 4 C4th 1233, 1315-16 [18 CR2d 796].) For other constitutional errors, the burden shifts to the prosecution to establish that the error was harmless beyond a reasonable doubt. (Chapman v. California (67) 386 US 18, 24 [17 LEd2d 705; 87 SCt 824]; see also People v. Roybal (98) 19 C4th 481, 520 [79 CR2d 487] [as to federal constitutional error, prejudice “is presumed unless the government shows that the defect was harmless beyond a reasonable doubt. [Citation.]]”.) Otherwise, the standard of review is governed by the state standard of People v. Watson (56) 46 C2d 818, 836 [299 P2d 243] [the appellant must demonstrate a reasonable probability that the verdict would have been different absent the error]. [A sample argument that jury instruction errors abridged the defendant’s federal constitutional rights to due process and trial by jury is available to FORECITE subscribers. Ask for Brief Bank # B-663.] [Several articles by Renee Torres, of the First District Appellate Project, discussing the standard of prejudice for instructional error on elements, defenses and lesser included offenses are available to FORECITE subscribers. These articles may be requested as follows: # A-11a — What is the Standard of Prejudice for Instructional Error on Elements, Defenses and Lesser Included Offenses, Anyway? – Part I # A-11b — What is the Standard of Prejudice for Instructional Error on Elements, Defenses and Lesser Included Offenses, Anyway? – Part II # A-11c — What is the Standard of Prejudice for Instructional Error on Elements, Defenses and Lesser Included Offenses, Anyway? – Part III – 1992 Update # A-11d — What is the Standard of Prejudice for Instructional Error on Elements, Defenses and Lesser Included Offenses, Anyway? – Part IV – 1995 Update.] # A-11e — What is the Standard of Prejudice for Instructional Error on Elements, Defenses and Lesser Included Offenses, Anyway? – Part V – 1998 Update. # A-11f — What is the Standard of Prejudice for Instructional Error on Elements, Defenses and Lesser Included Offenses, Anyway? – Part VI – Fall 1998 Update.]
PG X(C)(1)(a) Removal Of All Elements: Where an instruction or omission wholly removes all the elements of the charge from the jury’s consideration, thus resulting in the jury’s failure to make a factual determination of an element of the offense, the error is reversible per se notwithstanding defendant’s failure to “dispute the existence of the predicate facts and that the evidence overwhelmingly established all the elements of [the charge] ….” (People v. Cummings (93) 4 C4th 1233, 1316 [18 CR2d 796]; see also Osborne v. Ohio (90) 495 US 103, 123-25 [109 LEd2d 98; 110 SCt 1691]; Summerlin v. Stewart (9th Cir. 2003) 341 F3d 1082, 1118 n. 20 (reversed on other grounds in Schriro v. Summerlin (2004) 542 US 348 [159 LEd 2d 442; 124 SCt 2519) [distinguishing Neder v. U.S. (99) 527 US 1 [144 LEd2d 35; 119 SCt 1827] and stating that “there is a vast difference between not submitting [an] element to the jury for decision and having no jury decision at all”]; United States v. Jimenez Recio (9th Cir. 2004) 371 F3d 1093, 1102 [error was not limited to one element but prevented the jury from considering an entire category of evidence as relevant to any of the elements]; but see PG X(C)(1)(b) below.) [An article discussing Cummings and reversible error for the failure to instruct on elements of the charge is available to FORECITE subscribers. Ask for Article Bank # A-40.]
PG X(C)(1)(b) Removal Of A Single Element. Neder v. U.S. (1999) 527 US 1 [144 LEd2d 35; 119 SCt 1827] held that the failure to instruct on an element of the charge is not reversible error per se. Rather, the error will be considered reversible if “the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.” (Id. at 19.) In other words, “where a defendant did not, and apparently could not, bring forth facts contesting the omitted element,” the error may be considered harmless. (Ibid.) Thus, as explained by the California Supreme Court in People v. Mil (2012) 53 CA4th 400, 408-20, a reviewing court’s analysis of prejudice from failure to instruct on an element of the offense must not simply consider whether there was substantial evidence in support of the omitted element. Instead of relying on the “less demanding [substantial evidence] standard,” the appellate court must determine whether “a rational juror, given proper instructions, could have had a reasonable doubt whether [the omitted element was proved].” (Id. at 419.) This analysis coincides with People v. Flood (1998) 18 CA4th 470, 491, which interpreted the state standard of prejudice in terms of what a “rational juror, properly instructed, could have found that [the omitted element was not proved].” (See also People v. Nicholson (2004) 123 CA4th 823 [“A jury instruction that omits an element of an offense requires reversal . . . [unless] no rational jury could have found the missing element unproven . . . .”]; Powell v. Galaza(9th Cir. 2003) 328 F3d 558 [midtrial instruction which directed a verdict on the contested issue of intent was reversible error].) In Harmon v. Marshall (9th Cir. 1995) 57 F3d 763, the 9th Circuit reaffirmed its view that the failure to instruct on one element of an offense is reversible per se. (See also U.S. v. Hove (9th Cir. 1995) 52 F3d 233, 235-36; U.S. v. Stein (9th Cir. 1994) 37 F3d 1407, 1410.) This is so even if the prosecution’s evidence on the omitted element is overwhelming: “Marshall insists that the evidence establishing Harmon’s guilt on these very serious charges was overwhelming. We agree. But this does not change our result. We cannot judge the defendant guilty; that role is reserved for the jury. [Citation.] ‘[N]o matter how clear evidence may be, the sixth amendment requires that the jury, not the judge, must find the facts necessary to decide [the] element[s] of a crime beyond a reasonable doubt.’ [Citations.]” (Harmon, 57 F3d at 765; see also U.S. v. Nash (9th Cir. 1995) 64 F3d 504, 507-08; U.S. v. McClelland (9th Cir. 1991) 941 F2d 999, 1102-03 [relief granted for failure to instruct on the element without use of harmless error analysis]; Martinez v. Borg (9th Cir. 1991) 937 F2d 422 [harmless error only if: 1) jury actually made requisite findings; or 2) “no rational jury could have made those findings [actually made by the jury] without also finding the omitted or fact to be true”];U.S. v. Caldwell (9th Cir. 1993) 989 F2d 1056, 1060 [“. . . because the Sixth Amendment requires that all elements of the crime be found by the jury – not just by appellate judges reviewing the record – we can’t say the error was harmless. [Citations.]”].) (Note: People v. Avila (1995) 35 CA4th 642, 661 fn 11 erroneously stated that the 9th Circuit’s rule was to the contrary.) In U.S. vs. Gaudin (1995) 515 US 506 [132 LEd2d 444; 115 SCt 2310], the Supreme Court affirmed the 9th Circuit’s reversal of the defendant’s conviction for the failure to instruct on materiality as an element of perjury. (The 9th Circuit had held that the failure to so instruct was reversible per se.) The concurring opinion of Justices Rehnquist, O’Connor and Breyer stated that even though the 9th Circuit’s decision was affirmed, the Supreme Court was not reviewing the 9th Circuit’s conclusion that the constitutional error was reversible per se. (Gaudin, 115 SCt at 2322.) The 9th Circuit held the failure to instruct on materiality was reversible per se under the following rationale:
“Under the guidance of Yates, we may no longer consider the strength of evidence and determine whether it was so clear that the jury would have found the element of a crime to exist, had it been properly instructed, but, instead, we must determine whether the jury was actually able to consider that evidence under the instructions given by the court. When proof of an element has been completely removed from the jury’s determination, there can be no inquiry into what evidence the jury considered to establish that element because the jury was precluded from considering whether the element existed at all.” …
“[A]n appellate court [may not] conclude under a harmless error doctrine that a jury ‘would have’ found an essential element of the crime if the jury did not do so under appropriate instructions. [Citation to Sullivan v. Louisiana (1993) 508 US 275 [124 LEd2d 182; 113 SCt at 2078, 2082].]” [Original emphasis.] (U.S. v. Gaudin (9th Cir. 1994) en banc, 28 F3d 943, 949.)
In People v. Kobrin (1995) 11 CA4th 416, 429, fn 8 [45 CR2d 895], the Supreme Court recognized, but did not resolve, the question of whether the failure to instruct on a single element of the charge is reversible per se. Instead, the court reversed under the circumstances of this case because “the defense did not concede the issue . . . and the trial court’s instruction completely deprived the jury of an opportunity to consider the materiality [issue].” (Kobrin, 11 CA4th at 430.) The Kobrin court relied upon three principles in reversing the conviction for the failure to instruct on the materiality element of perjury. First, the court reasoned that the failure to instruct upon an element of the charge is “more akin to the erroneous reasonable doubt instruction at issue in Sullivan [Sullivan v. Louisiana (1993) 508 US 275 [124 LEd2d 182; 113 SCt 2078]].” That is, “the jury’s findings on materiality were not merely imperfect, they were non-existent due to the instructional omission. Thus, ‘[t]here is no object, so to speak, upon which harmless-error scrutiny can operate.’ [Citation.]” [Emphasis in original.] Second, in reliance upon Yates [Yates v. Evatt (1991) 500 US 391 [114 LEd2d 432; 111 SCt 1184]], the court reasoned that when the “jury evaluates evidence ‘with the wrong question in mind’ it is impossible to say beyond a reasonable doubt that the error was harmless.” (Kobrin, 11 CA4th at 429.) Third, the Kobrin court reasoned that the removal of the materiality element “may have affected the composition of the record,” precluding the defense from presenting evidence as to the issue of materiality. (Id. at 429-30; see alsoPeople v. Bell (1996) 45 CA4th 1030 [both the California and U.S. Supreme Court have “strongly implied” that the failure to instruct concerning an element of an offense is a structural error that requires per se reversal].) Applicability Of Sullivan v. Louisiana To Failure To Instruct On Element Of The Charge. Sullivan v. Louisiana (1993) 508 US 275 [124 LEd2d 182; 113 SCt 2078] is a key case in evaluating the failure to instruct on an element of the charge notwithstanding People v. Flood (1998) 18 CA4th 470 (Flood’s evaluation of the federal standard is obviously not binding on the U.S. Supreme Court or the Ninth Circuit; see also People v. Buchholz DEPUBLISHED (1998) 62 CA4th 1196 [pre-Flood case which relied on Sullivan to find reversible error]). A comprehensive discussion of Sullivan appears in Rutgers Law Journal, “The Effect of Sullivan v. Louisiana on Harmless Error Analysis of Jury Instructions That Omit An Element Of The Offense,” by Benjamin E. Rosenberg, 29 Rutgers L.J., 315 Winter, 1998. This article discusses the following questions: (1) Under what circumstances is a jury’s finding on an element as to which it has been correctly instructed a “functional equivalent” of a finding on the omitted element? (2) Does Sullivan lead to hyper-technical results? (3) Does Sullivan apply where the jury instruction improperly describes, rather than entirely omits, an element of the charged crime? (4) Does Sullivan apply in the habeas corpus context, or only on direct appeal? (5) Is Sullivan applicable in plain error analysis under Federal Rule of Criminal Procedure 52(b), where the defendant did not object to the erroneous instruction? Plain Error. (See FORECITE PG VI(A)(1.6)).
PG X(C)(1)(b)(I) Removal Of A Single Element Requiring Less Than Proof Beyond a Reasonable Doubt. Even if the element upon which the jury was not instructed required only proof by a preponderance of the evidence (e.g., an element of the statute of limitations) the failure to so instruct is federal constitutional error. (People v. Bell (96) 45 CA4th 1030 [53 CR2d 156].) However, because the Bell court found the error to be reversible under the lesser Chapman test, it did not reach the question of whether the failure to instruct on an element of the statute of limitations should be reversible per se.
PG X(C)(1)(c) Reduction Of Charge To Lesser Offense For Failure To Instruct On Elements Of The Greater Offense: No published opinion has addressed the question of whether the court of appeal may reduce the charge to a lesser offense after finding reversible error for failure to instruct on all elements of the greater offense. People v. GarciaUNPUBLISHED (1995, C017387), concluded the Court of Appeal may not reduce the judgment (per PC 1260) to a conviction of a lesser offense under such circumstances. [A copy of the Garcia opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-191.] Pollard v. White (9th Cir. 1997) 119 F3d 1430 held that it is not a violation of federal due process to reduce a first-degree murder verdict to second-degree murder when the trial court erred in defining premeditation to the jury. The federal court held that when the jury returned its first-degree verdict it necessarily rejected the defendant’s defenses and made a finding as to malice. NOTE: People v. Navarro (2006) 40 C4th 668, 680-81 held that a single greater offense may not be reduced to two lesser offenses.
PG X(C)(1)(d) Reversal Per Se Applies Even If Evidence “Uncontroverted”: ALERT: See discussion of People v. Flood (98) 18 C4th 470 [76 CR2d 180] at PG X(C)(1)(b). The failure to instruct upon an element of the charge should not be held harmless even if the evidence as to that element is “uncontroverted.” It is well-settled that the jury need not accept the truth of uncontroverted testimony on a material issue if it finds that testimony not to be credible. (See generally, 3 Witkin, Cal. Evid. (3d ed. 1986) Introduction of Evidence at Trial, §§ 1751 – 1756, pp. 1705-11.) Hence, even if the evidence is arguably uncontroverted, the reviewing court may not conclude as a matter of law that the jury made a particular finding with respect to an essential element of the offense if the instructions did not call the materiality of this evidence to the jury’s attention so thatthe jury could perform its function of determining the credibility of the uncontroverted evidence. (See Sullivan v. Louisiana (93) 508 US 275 [124 LEd2d 182, 190; 113 SCt 2078]; Harmon v. Marshall (9th Cir. 1995) 57 F3d 763, 764-65.) [An unpublished opinion in People v. Garcia UNPUBLISHED (1995, C017387) is available to FORECITE subscribers. Ask for Opinion Bank # O-191.]
PG X(C)(2) Failure to Instruct on Lesser Offense: PG X(C)(2) Failure To Instruct On Lesser Offense. See FORECITE PG X(J).
PG X(C)(2.1) Harmless Error Analysis Applied For Failure To Instruct Upon Lesser Included Offense Of An Alternative Charge Per Guiton: In People v. Tinajero (93) 19 CA4th 1541, 1551 [24 CR2d 298], the Court of Appeal applied the rule created by the Supreme Court in People v. Guiton (93) 4 C4th 1116, 1121-28 [17 CR2d 365] to find the failure to instruct upon a lesser included offense harmless when the offense was a lesser to an alternative charge which was factually unsupported by the evidence. (See FORECITE PG X(B)(4).) However, the reasoning of Tinajero is suspect. It concluded that, because there was insufficient evidence of the alternative theory, the Court of Appeal may presume that the jury turned to the alternate charge which was supported by the record. (Tinajero 19 CA4th at 1552.) However, this does not answer the concern consistently expressed in lesser offense cases, that the failure to instruct upon the lesser offense presented the jury with an all-or-nothing choice. Had the jury in Tinajero been instructed upon the lesser offense to the unsupported alternate charge — which could have been found based upon the evidence — then the jury would have been provided with an option short of acquittal. By failing to instruct upon this lesser, the trial court did not provide the jury with such an option (Guiton teaches that an unsupported alternative theory is not an option which the jury will ordinarily consider) thus forcing the jury to choose between convicting the defendant of the greater offense or acquitting him. Hence, the traditional standard of prejudice applied to the failure to instruct upon lesser offenses should have been applied to require reversal in Tinajero.
PG X(C)(3) Failure to Instruct on Defense: In California it has been held that the failure to give an instruction upon a defense presented by substantial evidence is harmless only when the omitted issue is decided adversely to the defendant by the jury in another context. (People v. Rivera (84) 157 CA3d 736, 743 [203 CR 842]; see also People v. Anderson (83) 144 CA3d 55, 63 [192 CR 409] [appellate court cannot cure the error in failing to instruct on a defense by weighing the evidence]; People v. ParkerUNPUBLISHED (91) (F013203) [failure to instruct on reasonable belief in consent as defense to rape held reversible]. [A copy of the Parker opinion is available to FORECITE subscribers. Ask for Brief Bank # O-172.].) However, as a matter of federal due process the test is even stricter. The Ninth Circuit has consistently stated that if a defendant’s theory of the case is supported by the law, and if there is some foundation for the theory in the evidence, the failure to give the defendant’s proposed jury instruction concerning his or her theory is “reversible error.” (U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201; U.S. v. Lesina (9th Cir. 1987) 833 F2d 156, 159-60; U.S. v. Sotelo-Murillo (9th Cir. 1989) 887 F2d 176, 178-79.) For example, in Escobar de Bright the Ninth Circuit held that the right to have the jury instructed as to the defendant’s theory of the case is one of those constitutional rights whose infraction can never be treated as harmless error. (742 F2d at 1202.) In so holding the court stated that: “Jurors are required to apply the law as it is explained to them in the instructions they are given by the trial judge. They are not free to conjure up the law for themselves. Thus, a failure to instruct the jury regarding the defendant’s theory of the case precludes the jury from considering the defendant’s defense to the charges against him. Permitting a defendant to offer a defense is of little value if the jury is not informed that the defense, if it is believed or if it helps create a reasonable doubt in the jury’s mind, will entitle the defendant to a judgment of acquittal.” (Escobar de Bright 742 F2d at 1201-02.) Moreover, when such violations are considered collaterally on federal habeas, reversal is also required because such an error is so fundamentally unfair that it amounts to a due process violation within the meaning of Estelle v. McGuire(91) 502 US 62 [116 LEd2d 385, 398-401; 112 SCt 475].) As observed by one federal district court in concluding that the refusal to instruct upon entrapment violated due process: “If the Ninth Circuit has held that the failure to give a defense instruction supported by the evidence can never be harmless under the federal constitutional standards for determining harmless error, the issue herein is one of fundamental fairness … As the right to have the jury instructed on a defense theory of the case is one of those rights ‘so basic to a fair trial’ when some evidence exists to support such an instruction, failure to give such an instruction would be fundamentally unfair.” (Hollis v. GomezUNPUBLISHED (CIV-S-90-0904 GEB), Findings and Recommendations of Magistrate p. 13.) [Copies of the Magistrate’s Findings and Recommendations as well as the briefing in the Hollis case are available to FORECITE subscribers. Ask for Brief Bank #533.]
PG X(C)(3.1) Failure To Instruct On Defense: General Instruction On Element Of Charge Is Insufficient. The fact that the jury has been instructed on the appropriate law in the definition of the crime or by other general instructions, does not preclude the need for a specific defense theory or pinpoint instruction. (See People v. Jeffers (96) 41 CA4th 917, 924-25 [49 CR2d 86].) When the instruction focuses on the defense theory, it is crucial that the jury understands the importance of considering this theory. Hence, a specific instruction should be given if requested: “It is true that the instruction given stated the law correctly; but it was brief, general, and colorless in comparison with the instruction asked for, and had the effect of minimizing the importance of a consideration which could not have been stated with too much emphasis”. (People v. Kane (46) 27 C2d 693, 700 [166 P2d 285]; People v. Cook (1905) 148 C 334, 347 [83 P 43]; People v. Mayo (61) 194 CA2d 527, 537 [15 CR 366].) Convictions were reversed in Kane, Cook andMayo on this basis. Moreover, the necessity of relating the defense theory to the prosecution’s burden of proof is another reason why the giving of general instructions may not suffice. (See, e.g., CALJIC instructions on identity (CJ 2.91), alibi (CJ 4.50), unconsciousness (CJ 4.30), and self-defense (CJ 5.15). These instructions properly inform the jury that the prosecution must disprove the defense theory beyond a reasonable doubt. For the same reason, the prosecution’s burden of proof should be included with respect to other specific defense theory instructions. (See People v. Simon (95) 9 C4th 493, 500-01 [37 CR2d 278] [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; see also EC 502; U.S. v. Pierre (9th Cir. 2001) 254 F3d 872 [right to defense theory instruction relating self-defense to burden of proof].) Accordingly, a specific burden instruction should also be included in a pinpoint instruction which relates a theory of the defense to an element of the charge. Nor is CJ 2.90 adequate to inform the jury as to the burden applicable to affirmative defenses. (See People v. Adrian (82) 135 CA3d 335, 342 [185 CR 506]; see also People v. Brown (84) 152 CA3d 674, 677-78 [199 CR 680] [Former CALJIC 2.91 and 2.20 ‘are not alone sufficient to render the failure to give requested instruction linking reasonable doubt to identification harmless error’].) All CJ 2.90 does is tell the jury that a reasonable doubt as to “guilt” warrants an acquittal. (See Adrian 135 CA3d at 342.) This instruction works fine when the jury is reviewing the elements of the offense. But as to a defense theory such as accident, the absence of a specific burden instruction erroneously suggests that the defendant is required to prove his or her theory before the defense is applicable.
PG X(C)(3.2) Failure To Instruct On Defense Theory: Standard Of Prejudice. “Permitting a defendant to offer a defense is of little value if the jury is not informed that the defense, if it is believed or if it helps create a reasonable doubt in the jury’s mind, will entitle the defendant to a judgment of acquittal.” (U.S. v. Escobar DeBright (9th Cir. 1984) 742 F2d 1196, 1201-02.) Hence, the failure to give such an instruction may prejudicially infringe the defendant’s constitutional entitlement to present a defense. (Cf. People v. Tilehkooh (2003) 113 CA4th 1433 [finding due process violation in trial court’s refusal to allow defendant to rely on medical marijuana defense to probation violation allegation]; see also PG VII(C)(14) [Denial Of Instruction And Argument On Defense Theory As Violation Of Rights To Trial By Jury, Due Process, Counsel, Compulsory Process, And Confrontation].)
PG X(C)(3.3) Application Of Watson Standard To Omission Of Instruction On Defense. As discussed in FORECITE PG X(C)(3), (3.1) and (3.2) it should generally be argued that the failure to instruct on a defense is federal constitutional error. However, as observed by People v. Sojka (2011) 196 CA4th 733, 738:
An error arising from the failure to instruct on a defense to a charge is most commonly analyzed under the test articulated in People v. Watson (1956) 46 Cal.2d 818 [299 P.2d 243]. [Citation.] The judgment is reversed when it appears from an examination of the record that there is a reasonable probability the defendant would have obtained a more favorable outcome had the error not occurred. [Citation.]
Under the Watson standard harmless error analysis proceeds as follows:
In determining whether instructional error was harmless, relevant inquiries are whether ‘the factual question posed by the omitted instruction necessarily was resolved adversely to the defendant under other, properly given instructions’ [citation] and whether the ‘defendant effectively conceded the issue’ [citation]. A reviewing court considers ‘the specific language challenged, the instructions as a whole[,] the jury’s findings’ [citation], and counsel’s closing arguments to determine whether the instructional error ‘would have misled a reasonable jury … .’ (People v. Eid (2010) 187 CA4th 859, 883.)
PG X(C)(4) Instruction Which Directs Verdict Against the Defendant: ALERT: See discussion of People v. Flood (98) 18 C4th 470 [76 CR2d 180] at PG X(C)(1)(b). “[I]f a court direct[s] a verdict for the prosection in a criminal trial by jury … the state cannot contend that the deprivation was harmless because the evidence established the defendant’s guilt; the error in such a case is that the wrong entity judged the defendant guilty.” (Rose v. Clark (86) 478 US 570, 578 [92 LEd2d 460; 106 SCt 3101]; see also People v. Figueroa (86) 41 C3d 714, 723-34 [224 CR 719].) In People v. Higareda (94) 24 CA4th 1399, 1406 [29 CR2d 763], the Court of Appeal, in reliance upon People v. Lee (87) 43 C3d 666, 674 [238 CR 406], applied a harmless error standard of prejudice to an erroneous instruction which directed a verdict against the defendant on the force and fear element of robbery. However, Lee did not involve a directed verdict instruction and did not suggest that such an instruction could be subject to harmless error analysis. To the contrary, Lee quoted from that portion of Rose v. Clark (86) 478 US 570 [92 LEd2d 460; 106 SCt 3101] which concluded that harmless error analysis does not apply if the court directs a verdict for the prosecution in a criminal trial by jury. (Lee 43 C3d at 675.)
PG X(C)(5) Instruction Which Affects Prosecution’s Burden Without Totally Removing an Element of the Charge: In situations where the prosecution’s burden of proof has been shifted or lessened or where the jury has been misinstructed upon an element of the charge without wholly removing consideration of that element from the jury, then theChapman harmless error test should be applied. (See People v. Hernandez (88) 46 C3d 194, 210 [249 CR 850]; Carella v. California (89) 491 US 263, 271 [105 LEd2d 218; 109 SCt 2419]. When an instructional error “affects only an aspect of an element” the standard as enunciated in Carella and further refined in Yates v. Evatt (91) 500 US 391 [114 LEd2d 432; 111 SCt 1884], should be utilized. (See People v. Cummings (93) 4 C4th 1233, 1316 [18 CR2d 796].) Yates requires the reviewing court to look to the evidence available to the jury, “and presumably considered by the jury in accordance with the instructions,” on the omitted issue to determine if the evidence is so overwhelming as to leave no reasonable doubt. (Yates 114 LEd2d at 449.) Under Yates, the reviewing court may no longer consider the strength of the evidence and determine whether it is so clear that the jury would have found the element to exist had it been properly instructed, but the reviewing court must determine whether the jury was actually able to consider the evidence under the instructions of the court. (Ibid.) Hence, Yates establishes a two-pronged test: (1) the reviewing court must determine what evidence the jury actually considered and (2) whether that evidence is so overwhelmingly as to leave no reasonable doubt. (Ibid.; see also People v. Reyes (92) 2 CA4th 1598, 1604 [4 CR2d 48] [“we can find the error harmless only if other facts necessarily found by the jury are so closely related to the omitted issue that, on this evidence, no rational jury could find one without finding the other.”].) In People v. Harris (94) 9 C4th 407, 416 [37 CR2d 200], the court held that misinstruction upon one of two possible factual theories does not “implicate the entirety of the definition” of an element of the charge and, hence, is not reversible per se. In People v. Davis (94) 7 C4th 797, 814 [30 CR2d 50], the Supreme Court erroneously applied the Watson standard to a misinstruction on an element of the charge. By misinforming the jury on an element of the charge, the court lessened the prosecution’s burden in violation of the federal due process and trial by jury principles and therefore, the Chapman standard should have been used. (See above.)
PG X(C)(6) Failure To Instruct On Element Of A Special Circumstance Allegation: In People v. Odle (88) 45 C3d 386, 411 [247 CR 137] the California Supreme Court held that even though the special circumstances which make a defendant eligible for the death penalty are to be charged in the information and found by the jury, there is no constitutional right to a jury trial on that issue which, but for the statutory mandate, would be a sentencing issue. (People v. Cummings (93) 4 C4th 1233, 1314 [18 CR2d 796].) Hence, the failure to instruct on the elements of a special circumstance allegation are subject to the Chapman harmless error standard rather than the reversible error per se standard. (Ibid.) [Briefing on the standard of review applicable to the failure to instruct is available to FORECITE subscribers. Ask for Brief Bank # B-611b.] In People v. Prieto (2003) 30 C4th 226 [133 CR2d 18] the court admitted that Ring v. Arizona (2002) 536 US 584 [153 LEd2d 556; 122 SCt 2428] partially undermined Odle by requiring that death eligibility special circumstances be found by the jury. However, according to Prieto, harmless error analysis is still appropriate because “the omission of an element [of a substantive offense] is an error that is subject to harmless-error analysis” under Chapman (Neder v. United States (99) 527 US 1, 15 [144 LEd2d 35; 119 SCt 1827], and by analogy, the erroneous omission of an element of a special circumstance is still subject to that same analysis notwithstanding Ring.
PG X(C)(7) Standard Of Prejudice: Failure To Instruct On Element Of Enhancement: See FORECITE EA V(L).
PG X(C)(8) Failure To Define A Technical Term As Reversible Error: The failure to define a technical term which is an essential element of the charge may be reviewed as reversible federal constitutional error because it precludes the jury from determining every material issue presented by the evidence. (See People v. Reynolds (88) 205 CA3d 776, 779 [252 CR 637]. [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-604.]
PG X(C)(9) Failure To Instruct On Corroboration Requirement: Several cases have measured the prejudice from failure to instruct on the requirement of corroboration by independently reviewing the record to determine if corroborating evidence was presented. Upon finding such evidence in the record, these cases have pronounced the instructional error to be harmless. (See e.g., People v. Marquez (93) 16 CA4th 115, 122 [20 CR2d 365].) This standard of prejudice should not be utilized. First, if the error is harmless whenever the record contains any evidence of corroboration, then the trial court has no incentive to instruct properly to begin with because the error will never be reversible. The lack of corroborating evidence is itself a basis for reversal and, therefore, the lack of proper instruction in such a case would not be an issue. Hence, under the Marquez standard, the failure to instruct on corroboration will either be harmless — if corroborating evidence exists — or moot — if corroborating evidence does not exist. Such a scheme is unsound judicial policy since it recognizes a judicial error for which there is no appellate remedy. Second, instructional error which authorizes the jury to convict without finding the necessary corroboration violates the defendant’s rights to trial by jury and due process (U.S. Const. 6th and 14th Amendments) and should be per se reversible. The mere presence of corroborating evidence in the record does not render the error harmless because it is the jury, not the reviewing court, which must make the factual determination as to corroboration. Even if the appellate court considers the evidence to be overwhelming, unless the record demonstrates that “the jury actually rested its verdict on [the] evidence …”, the appellate court may not supply the missing determination by its own evaluation of the evidence. (See Yates v. Evatt (91) 500 US 391 [114 LEd2d 432, 449; 111 SCt 1884]; see also People v. Sims (93) 5 C4th 405, 476 [20 CR2d 537], dis. op.] Otherwise the “wrong entity” would be judging guilt. (Sullivan v. Louisiana (93) 508 US 275 [124 LEd2d 182, 190; 113 SCt 2078].) “The most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt … That is not enough. The Sixth Amendment requires more than appellate speculation about hypothetical jury’s action ….” [Emphasis in original.] (Sullivan, 124 LEd2d at 190; see also Carella v. California (89) 491 US 263, 270 [105 LEd2d 218; 109 SCt 2419] [Scalia, J. concurring] [citing United Broth’d of Carpenters v. U.S. (47) 330 US 395, 408-09 [91 LEd2d 973; 67 SCt 775]; U.S. v. Dunkel (7th Cir. 1991) 927 F2d 955, 956 [where a jury instruction removes an element of the offense from the purview of the jury, “the error cannot be harmless” even if no rational jury could have believed a defense predicated on the proper instruction].) [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-638 a & b.]
PG X(C)(10) Failure To Give Defense Pinpoint Instruction: The failure to give a defense theory instruction is reversible per se if the defendant’s theory of the case is not presented to the jury. (See FORECITE PG X(C)(3).) However, in People v. Fudge (94) 7 C4th 1075, 1109-12 [31 CR2d 321], the court applied the Watson standard to an error in failing to give a pinpoint instruction on eyewitness identification.
PG X(C)(11) Harmless Error Analysis For Federal Constitutional Error: Impact On Verdict In Case At Hand. In People v. Williams (88) 44 C3d 883, 929 [245 CR 336], the California Supreme Court held that the failure to instruct on the independent felonious purpose element of the special circumstance was harmless because “no rational jury could have found that he did not have [the requisite purpose].” “This analysis mistakenly focuses on a hypothetical jury, when the role of the reviewing court in conducting harmless error analysis is ‘to consider … not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the … verdict in the case at hand.’ [Citation.]” (Williams v. Calderon (9th Cir. 1995) 52 F3d 1465, 1477; see also, Wade v. Calderon (9th Cir. 1994) 29 F3d 1312, 1322.)
PG X(C)(12) Juror Unanimity: Sullivan v. Louisiana Requires Reversal Per Se. See FORECITE F 17.01 n19.
PG X(C)(13) Duty To Request Instructions: When Instruction May Be Based On Defendant’s Perjured Testimony. People v. Johnson (98) 62 CA4th 608 [72 CR2d 805] held that a defense attorney has no obligation to elicit testimony from his or her own client if it is believed that such testimony is false. Instead, the defendant may testify in a narrative fashion. However, neither Johnson nor any of the authorities upon which it relies, discusses the issue of whether counsel is obligated to request instructions based on the defendant’s alleged perjured testimony. Nor do the cases discuss the court’s sua sponte obligation to instruct upon such testimony. However, if the testimony is actually presented to the jury as evidence, there is no reason why the normal rules regarding the duty to request and instruct based on the evidence should not apply.
PG X(C)(14) Written Instructions To The Jury As Reversible Error. (See FORECITE PG V(G)(1).)
PG X(C)(15) Whether Denial Of Right To Jury Trial On Prior Conviction Is Reversible Per Se (PC 1025). People v. Epps (2001) 25 C4th 19 [104 CR2d 572] held as a matter of California law that the complete denial of any jury determination regarding the prior conviction is not reversible per se. However, Epps failed to recognize, that, in light of Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348], the federal constitutional rights to trial by jury and due process (6th and 14th Amendments) should apply to prior convictions used to increase sentencing liability. (See FORECITE PG VII(C)(32)(6).)
PG X(C)(16) Standard Of Prejudice: Civil Commitment Proceeding. The standard of prejudice for the giving of an erroneous instruction in an ordinary civil case is that required by Article VI, Section 13 of the California Constitution, i.e., whether it seems probable that the error prejudicially affected the verdict. (Soule v. General Motors Corp. (94) 8 C4th 548, 580 [34 CR2d 607].) However, where the civil proceeding “may result in a serious deprivation of personal liberty…” reversal is required unless the error was “harmless beyond a reasonable doubt.” (See also People v. Hurtado (2002) 28 C4th 1179, 1194 [124 CR2d 186]; Conservatorship of Early (83) 35 C3d 244, 255 [197 CR 539] [LPS Act commitment (WI 5350 et sec.)]; Conservatorship of Wilson (82) 137 CA3d 132, 135-36 [186 CR 748] [LPS Act commitment (WI 5350 et sec.)].)
PG X(C)(17)Standard Of Prejudice: Mentally Disordered Offender. Because the right to a jury trial in an MDO proceeding is statutory, the Watson (People v. Watson (56) 46 C2d 818, 836 [299 P2d 243]) standard of prejudice applies. (People v. Cosgrove (2002) 100 CA4th 1266 [123 CR2d 535].) However, Cosgrove is poorly reasoned. Cosgrove purports to be based on People v. Epps (2001) 25 C4th 19, 28-29 [104 CR2d 572]. Epps, however, was a deprivation of a jury trial on prior conviction allegations, which Epps treated as subject to harmless error analysis under Article VI, sec. 13 of the state Constitution. Epps could perhaps do so because prior conviction allegations adjunct to a conviction of a substantive offense were merely sentencing factors not subject to a jury trial when the state Constitution was enacted in 1850, and thus do not fall under Article I, sec. 16 of the Constitution. But Cosgrove doesn’t deal with a mere adjunct allegation; it deals with the entire proceeding. And although Cosgrove holds and MDO proceeding is civil, a civil action was subject to the right to a jury trial in 1850. Moreover, even in civil cases, “the denial of a trial by jury to one constitionally entitled thereto constitutues a miscarriage of justice and requried a reversal of the judgment.”(People v. One 1941 Chevrolet Coupe (51) 37 C2d 283, 300 [231 P2d 832] [civil action for forfeiture of property]; accord, e.g., Interinsurance Exchange v. Savior (75) 51 CA3d 691, 694-95 [124 CR 239], and cases cited.) The California Supreme Court found another such error reversible per se in a civicl case without any reference to Article VI, sec. 13 of the Constitution. (Cornette v. Dept. of Transportation (2001) 26 C4th 63 [109 CR2d 1].
PG X(C)(18) Standard of Prejudice: Instructional Errors In Competency Hearings.
“The right to a jury trial in a competency proceeding may be only statutory, but a defendant’s right not to be put to trial when he or she is more likely than not incompetent, is constitutional. [Citation to Cooper v. Oklahoma (96) 517 US 348, 369.]” (People v. Johnwell (2004) 121 CA4th 1267, 1276.)
Hence, the Chapman [Chapman v. California (67) 386 US 18 [17 LEd2d 705; 87 SCt 824]] standard should apply to an instruction that erroneously imposes a higher burden of proof on the defendant to show incompetency. (Johnwell, 121 CA4th at 1274-75.)
PG X(C)(19) Erroneous Reasonable Doubt Instruction As Reversible Per Se. In Sullivan v. Louisiana (93) 508 US 275 [124 LEd2d 182; 113 SCt 2078], in an opinion by Justice Scalia, the court held that Cage error (erroneous instruction upon proof beyond a reasonable doubt) is a violation of the due process clause (5th and 14th Amendments) and the right to trial by jury (6th Amendment) and is reversible per se. The court’s reasoning was as follows: Because it is the prosecution’s burden to show “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained” (Chapman v. California (67) 386 US 18, 24 [17 LEd2d 705; 87 SCt 824]), certain errors, “whose precise effects are unmeasurable but without which a criminal trial cannot reliably serve its function [citation]” (Sullivan, 124 LEd2d at 191) are reversible per se. Thus, an instructional error which mis-describes the burden of proof, and thus “vitiates all the jury’s findings,” can never be shown to be harmless. In short, the consequences of such an error “are necessarily unquantifiable and indeterminate” (Sullivan, 124 LEd2d at 191) and thus the prosecution can never meet its burden of proving that such an error is harmless. (See also People v. Johnson (2004) 115 CA4th 1169 [trial court erred in amplifying on the reasonable doubt instruction, equating it with certainty in planning vacations or scheduling airline flights; instruction had the effect of lowering the prosecution’s burden of proof requiring reversal].) [Research Note: See FORECITE BIBLIO 2.90.]
PG X(C)(20) Standard Of Prejudice: Failure To Instruct On Jury Unanimity.
PG X(C)(20)(i) Chapman vs. Watson:
“Currently, the Courts of Appeal are split concerning the proper standard for reviewing prejudice for failure to give a unanimity instruction. [Citation.] Some cases hold that the ensuing conviction must be overturned unless the constitutional error can be demonstrated to be harmless beyond a reasonable doubt, applying the standard from Chapman v. California (67) 386 US 18, 24 [17 LEd2d 705; 87 SCt 824]. [Citation.] Other cases find appropriate the test inPeople v. Watson (56) 46 C2d 818, 836 [299 P2d 243], whether ‘it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ [Citation.]” (See also People v. Wolfe(2003) 114 CA4th 177 [recognizing conflict but holding that Chapman standard applies to error in failing to assure jury unanimity as to “one criminal event”].) (People v. Matute (2002) 103 CA4th 1437, 1448-49.)
The reasoning for application of the Chapman test was clearly articulated in People v. Smith (2005) 132 CA4th 1537, 1545:
Federal due process requires that before one can be convicted of a crime the prosecution must convince a jury that the evidence establishes the defendant’s guilt of the crime beyond a reasonable doubt. (CitingIn re Winship (1970) 397 US 358 [25 LEd 2d 368; 90 SCt 1068].) If a jury … is permitted to amalgamate evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt to all of the jurors required to agree on the verdict, the prosecution’s burden is lessened and defendant is denied due process. [Footnote omitted.] Such significant lessening of the prosecution’s burden of proof compels reversal unless we are able to declare a belief that it was harmless beyond a reasonable doubt.
PG X(C)(20)(ii) Key Is Basis In The Record By Which Jurors Could Have Differentiated Between The Acts:
In determining whether the failure to require the jury to unanimously agree as to which act the defendant committed, “[t]he important question is whether there was anything in the record by way of evidence or argument to support discriminating between the two incidents such that the jury could find that [the defendant] committed [one act] but not the other. [Citation.]” (People v. Brown (1996) 42 CA4th 1493, 1502; see also People v. Davis (2005) 36 C4th 510, 560-62 [failure to require unanimity was reversible because different evidence and defenses applied to each act of robbery]; People v. Benavides (2005) 35 C4th 69, 98 [implying that unanimity instruction is required when the jury may agree that the defendant committed charged crime [e.g., assault] but “disagree about which acts he committed.”]; People v. Thompson (1995) 36 CA4th 843, 853 [prejudicial error in failing to give unanimity instruction where different defenses gave jury a rational basis to distinguish between various acts]; People v. Deletto (1983) 147 CA3d 458, 466-67.) For example, the defendant’s defense as to the various acts may be different. (See e.g., People v. Davis, 36 C4th at 561-62;People v. Diedrich (1982) 31 C3d 263, 283; People v. McNeill (1980) 112 CA3d 330, 336; see also, People v. Gordon (1985) 165 CA3d 839, 355-65.) Moreover, even if the defenses are not different, other factors, such as variance in the strength, accuracy or nature of the evidence between the acts, may cause some jurors to find reasonable doubt on one act and some on the other. In such a case, the error is reversible because there is no way to tell if all—or even a majority—of the jurors agreed on a particular act. (See e.g., People v. Davis, supra; People v. Madden (1981) 116 CA3d 212, 214-20.)
PG X(C)(21) Act-Intent/Mental State Concurrence: Standard Of Prejudice.
Federal Standard Should Apply. In People v. Alvarez (96) 14 C4th 155, 220 [58 CR2d 385] the Supreme Court, without discussion, analyzed the failure to instruct on concurrence of act and intent as a violation of California law subject to evaluation under the Watson standard of prejudice. (See also People v. Mickey (91) 54 C3d 612, 676-677.) However, such a conclusion cannot be squared with established state and federal authority. First, act-intent/mental state concurrence is a fundamental element of the charged offense. (People v. Green (80) 27 C3d 1, 53; see also Morissette v. U.S. (52) 342 US 246, 250-51 [96 LEd2d 288; 72 SCt 240]; see also PC 20.) Hence, because the absence of a jury finding on a factual accusation required to prove the charge is federal constitutional error in violation of defendant’s right to due process and trial by jury the error must be evaluated under the federal Chapman (Chapman v. California(67) 386 US 18, 24 [17 LEd2d 705; 87 SCt 824]) standard. (See Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; see also Neder v. U.S. (99) 527 US 1 [119 SCt 1827; 144 LEd2d 35]; California v. Roy (96) 519 US 2 [136 LEd2d 266; 117 SCt 337]; People v. Flood (98) 18 C4th 470 [76 CR2d 180].)
Alvarez and Mickey—which predated Apprendi—overlooked the above analysis and offered no rationale for selecting the state over the federal standard of review. Its holding, therefore, has little value in the context of a specific argument that the federal standard applies to the failure to instruct on the concurrence of act and intent or mental state. (See People v. Superior Court (Marks) (91) 1 C4th 56, 65-66 [2 CR2d 389]; People v. Dillon (83) 34 C3d 441, 473-74 [194 CR 390] [cases are not authority for matters not considered].)
Whether Error Was Cured By Other Instructions. In People v. Mickey (91) 54 C3d 612, 676-677 the court held that the failure to instruct on concurrence of act and intent was harmless because the omitted element was supplied by other instructions:
The omission of an instruction requiring the concurrence of act and intent for burglary and robbery could not have significantly affected the result. A reasonable juror would have understood from the charge as a whole that for burglary and robbery there must exist a concurrence of act and intent, and could not have believed otherwise. That message was all but express in the instructions defining burglary and robbery as well as in the instructions dealing with the requisite specific intent to commit burglary and robbery as the predicate felony in first degree felony murder.
Neither could the result have been significantly affected by the omission of an instruction on the availability of the defenses of diminished capacity and voluntary intoxication for burglary and robbery. As noted, defendant relied on voluntary intoxication and diminished capacity as a result of voluntary intoxication. A reasonable juror would have effectively given consideration to these defenses through the instructions dealing with the requisite specific intent to commit burglary and robbery. Under the charge as a whole, and in light of the evidence the parties adduced and the arguments they presented, such a juror could not have inferred that the issue of voluntary intoxication—on which both of the defenses rested—was somehow immaterial to the question of the presence vel non of specific intent to commit burglary or robbery.
Contrary to defendant’s assertion, there was no reduction in the People’s beyond-a-reasonable-doubt burden of proof attributable to the errors, whether considered by themselves or in conjunction with any others. Nor was there any other prejudicial effect flowing from the instructional omissions.
PG X(C)(22) Failure to Instruct Upon Shackling: Standard Of Prejudice: Restraints Visible. If the restraints were visible to the jury, then the failure to caution the jury regarding the restraints rises to the level of federal constitutional error for which the Chapman standard of prejudice applies. (See People v. Jackson (93) 14 CA4th 1818, 1827-30 [18 CR2d 586]; see also Duckett v. Godinez (9th Cir. 1995) 67 F3d 734, 748 [defendant denied due process when required to wear shackles in presence of sentencing jury]; Rhoden v. Rowland (9th Cir. 1999) 172 F3d 633 [defendant denied due process when shackled without justification and shackling is visible to the jurors in courtroom].) “Because at least some of the jurors saw the shackles and because the shackles essentially branded Rhoden as having a violent nature in a case where his propensity for violence was a crucial issue, the shackles ‘had a substantial and injurious effect or influence in determining the jury’s verdict’ and thus did not constitute harmless error. [Citation, inter alia, Brecht v. Abrahamson (93) 507 US 619, 637 [123 LEd2d 353; 113 SCt 1710].]” (Rhoden v. Rowland (9th Cir. 1999) 172 F3d 633, 637.) Restraints Not Visible: When the restraints are not visible, harmless error may be found. However, there are many sources of potential prejudice even if the shackles are not seen by the jury. (See FORECITE F 1.04 n4 and F 1.04 n6.)
PG X(C)(23) Standard Of Prejudice: Aranda/Bruton. “Under the Chapman test, Aranda/Bruton error is harmless where the properly admitted evidence against defendant is overwhelming and the improperly admitted evidence is merely cumulative. [Citation.] To find the error harmless [the reviewing court] must find beyond a reasonable doubt that it did not contribute to the verdict, that it was unimportant in relation to everything else the jury considered on the issue in question [Citations.]” (People v. Song (2004) 124 CA4th 973, 984-85.)
PG X(C)(24) Standard Of Prejudice: Blakely Error. See Washington v. Recuenco (2006) 548 US 212 [165 LEd 2d 466; 126 SCt 2546].