Substantial Evidence Of Guilt Does Not Cure Instruction That Omits Or Misstates An Element Of The Charged Offense
February 6th, 2015


As with the total failure to instruct on an element of the charge, misinstruction on an element warrants reversal if “the jury could have reasonably concluded that the prosecution failed to prove [the element] beyond a reasonable doubt ….” (People v. Wilkins (2013) 56 Cal. 4th 333, 350-51.) This requires the reviewing court to apply the Chapman (Chapman v. California (1967) 386 U.S. 18) standard of prejudice as specified by the United States Supreme Court in Neder v. U.S. (1999) 527 U.S. 1, 15-17. (See People v. Mil (2012) 53 Cal.4th 400, 417; People v. Sandoval (2007) 41 Cal.4th 825, 838; see also Premo v. Moore (2011) 562 U.S. 115, 131 S. Ct. 733, 744, 178 L. Ed. 2d 649.)


Under Neder the failure to submit an element of the crime to the jury may be found harmless beyond a reasonable doubt (per Chapman) “if the evidence supporting the [element] is overwhelming and uncontested, and there is no ‘evidence that could rationally lead to a contrary finding.’ [Citing and quoting Neder].” (People v. French (2008) 43 Cal.4th 36, 53; People v. Ortiz (2002) 101 Cal.App.4th 410, 415-16 [“if no rational jury could have found the element unproven, the error is harmless beyond a reasonable doubt . . .”]; compare People v. Cross (2008) 45 Cal.4th 58, 70, Baxter, J., concurring [Defendant did not claim that the record “contains evidence that could rationally lead to a contrary finding.”].) In other words, this Court “must ask whether the record contains evidence that could rationally to a contrary finding with respect to the omitted element.” (Neder v. U.S., supra, 527 U.S. at 19; see also People v. Sandoval, supra, 41 Cal.4th at 838.)


Accordingly, the Chapman/Neder standard does not authorize a finding of harmless error simply because the evidence of guilt is “substantial” or “legally sufficient” to convict the defendant. For example, People v. Mil, supra, 53 Cal.4th 400 overturned the Court of Appeal’s decision finding misinstruction on the reckless indifference element of the special circumstance because the appellate court focused on whether there was substantial evidence of the defendant’s reckless indifference to human life, rather than on whether the court could conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error:


Although we agree that this evidence would be sufficient to sustain a finding of reckless indifference on appellate review, under which we would view the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of any facts the jury might reasonably infer from the evidence [citation], our task in analyzing the prejudice from the instructional error is [to decide] whether any rational fact finder could have come to the opposite conclusion. (Id. at p. 418.)



And, People v. Pearson (2012) 53 Cal. 4th 306, 323-324 utilized the same reasoning to reject the Attorney General’s argument that the instructional error was harmless due to “overwhelming” evidence of the missing element of intent to kill:


Nor do we agree with the Attorney General that the error was harmless beyond a reasonable doubt because the evidence of defendant’s intent to kill was overwhelming. While the evidence was legally sufficient to support a finding defendant intended to kill the victim had the jury made such a finding, defendant’s intent was subject to substantial factual dispute at trial. Given the evidence of defendant’s intoxication and the conflicting narratives, in testimony and prior statements, of what defendant personally did to the victim, it was a live issue for the jury whether he acted with the intent to kill her or merely with reckless indifference to her life, the distinction erroneously blurred in the instruction. We cannot say beyond a reasonable doubt that the jury, if correctly instructed, would have found defendant acted with the intent to kill.

 (See also People v. Beaver (2010) 186 CA4th 107, 124-25 [The error in omitting elements of the charge could was not harmless because “even if there was evidence in the record to support [the elements of theft by false pretenses], the jury was never called upon to determine if they had been established beyond a reasonable doubt.”


In sum, the Chapman/Neder rule requires the reviewing court to conduct a strict and specific analysis before declaring an elemental instructional error harmless. Without such a rule the reviewing court would be substituting its judgment of the facts for that of jury. This would, of course, drastically compromise the Sixth Amendment right to trial by jury: “[E]ven if the prosecution’s evidence on the omitted element is overwhelming … [the reviewing court] 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 v. Marshall (9th Cir. 1995) 57 F3d 763, 765 [pre-Neder decision].)





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