Lead Opinion
Opinion
A jury fоund defendant Hal Lee Flood guilty of the offense of evading a vehicle operated by a pursuing peace officer resulting in serious bodily injury, a violation of Vehicle Code section 2800.3.
We conclude that although the trial court committed constitutional error, its action does not amount to “structural error” within the meaning of the governing federal constitutional decisions and thus is not reversible per se, but rather, like most constitutional errors, is subject to harmless error analysis under both the California and United States Constitutions. We further conclude that, under the circumstances of this case, the error in question was harmless beyond a reasonable doubt and thus does not warrant reversal of the judgment. Accordingly, the judgment of the Court of Appeal, which reached a similar conclusion, is affirmed.
I
On May 22, 1994, City of Richmond Police Officers Rudy Bridgeman and Michael Gurney were on duty in their police vehicle when they stopped a Cadillac that had made an illegal U-tum. Bridgeman exited from the vehicle and approached the driver’s side of the Cadillac. He observed the driver, whom he identified as defendant, looking at him in the rearview mirror.
When Bridgeman and Gurney testified at trial concerning the foregoing events, the prosecutor questioned them regarding their employment as police officers. The following exchange occurred at the beginning of the prosecution’s case, during the direct examination of Bridgeman: “Q: Could you tell us where you work, for the record, [ft] A: Richmond Police Department. Q: You’re a peace officer with that department? [ft] A: Yes. . . . Q: And you were working in that position [on the date defendant committed the offense]? [ft] A: Yes.” Gurney similarly testified on-direct examination: “I’m a police officer for the [C]ity of Richmond Police Department,” and he stated that he was on duty the day of defendant’s offense. Defendant did not cross-examine Bridgeman or Gurney with regard to their status as Richmond police officers.
The defense case regarding the section 2800.3 charge was based upon three contentions: (1) the police vehicle which Bridgeman and Gurney were operating, a “detective’s car,” was not “distinctively marked” as required to
When instructing the jury on the elements of the offense defined by section 2800.3, the trial court stated:
“[Ejvery person who flees or attempts to elude a pursuing peace officer in violation of Vehicle Code Section 2800.1, and the flight or attempt to elude causes death or serious bodily injury to any person is guilty of a violation of Vehicle Code Section 2800.3, a felony.
“Officer Bridgeman and Officer Gurney are peace officers.
“In order to prove a violation of Vehicle Code section 2800.3, each of the following elements must be proved:
“1. A person, while operating a motor vehicle, willfully fled or otherwise attempted to elude a pursuing peace officer;
“2. Such person did so with the specific intent to evade the pursuing peace officer;
*478 “3. The peace officer’s vehicle exhibited at least one lighted red lamp visible from the front;
“4. The person saw or reasonably should have seen the red lamp;
“5. The peace officer’s vehicle sounded a siren as reasonably necessary;
“6. The peace officer’s motor vehicle was distinctively marked, as defined;
“7. The peace officer’s motor vehicle was operated by a peace officer wearing a distinctive uniform; and
“8. The flight from or the attempt to elude a pursuing police officer was the cause of serious bodily injury to another person.” (Italics added.)
This instruction was taken from CALJIC No. 12.86 (5th ed. 1993 new) as it appeared in the January 1994 through January 1995 pocket parts to volume 2. After the first paragraph quoted above, this version of CALJIC No. 12.86 included the bracketed phrase: “[_is a peace officer.].”
The jury found defendant guilty of violating sections 2800.3 and 10851, subdivision (a). On appeal, defendant argued, among other things, that the trial court erred in instructing the jury that Bridgeman and Gurney were
The Court of Appeal agreed that the trial court erred in instructing the jury that Bridgeman and Gurney were peace officers, but it rejected defendant’s argument that the error could not be considered harmless. Relying primarily upon People v. Richie (1994)
We granted defendant’s petition for review to decide whether a trial court’s instruction that a particular element of an offense has been established may be subject to harmless error analysis.
II
Under established law, instructional error relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the
A
People v. Modesto (1963)
People v. Modesto's holding (
Some Courts of Appeal have stated that a failure to instruct on the essential elements of an offense amounts to a violation of this state constitutional principle “ ‘whenever there is any evidence deserving of any consideration from which the jury could have found in favor of the defendant on the omitted element....’” (People v. Gary (1987)
Applying these principles to the present case, we conclude that the trial court’s instruction to the jury that Bridgeman and Gurney were peace officers violated defendant’s due process right under the California Constitution to have the jury determine each element of the offense set forth in section 2800.3.
B
The Attorney General concedes that the peace officer instruction was constitutional error but maintains that the error was not prejudicial. In
The latter aspect of Modesto was overruled in People v. Sedeño, supra, 10 Cal.3d at pages 720-721, which stated: “[Ejxperience during the decade since Modesto has demonstrated that adherence to that rule is neither necessary to assure defendants their right to jury consideration of all material issues presented by the evidence nor required to avoid prejudice. Thus, in some circumstances it is possible to determine that although an instruction on a lesser included offense was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury’s consideration since it has been resolved in another context, and there can be no prejudice to the defendant since the evidence that would support a finding that only the lesser offense was committed has been rejected by the jury.” Thus, Sedeño recognized that such an error does not invariably defy harmless error analysis. Sedeño reaffirmed Modesto, however, insofar as Modesto held that if the omitted fact is not determined by the jury in some other context, the failure to instruct on the lesser included offense is reversible per se. (Id. at pp. 721-724.)
As mentioned above, Sedeño created an exception to Modesto’s rule of automatic reversal where the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. Subsequent decisions further clarified and limited Modesto’s holding. In People v. Cantrell, supra,
In People v. Thornton, supra,
The next significant development in state constitutional analysis of prejudice arising from instructional error came after this court’s decision in Carlos v. Superior Court (1983) 35 Cal.3.d 131 [
In Garcia we emphasized that the case was decided “on the basis of federal precedent” and that we took “no position on whether, in the absence of controlling federal authority, we would apply the California prejudicial per se test of Modesto or some other, less stringent test.” (People v. Garcia, supra,
As noted, the Court of Appeal in the present case, relying upon People v. Richie, supra,
To the extent it has been applied to instructional errors affecting an element of a crime, the reversal-per-se rule of Modesto rests, in our view, upon an improper interpretation and application of the explicit harmless error provision contained in the California Constitution. As noted above (fn. 10, ante), article VI, section 13, of the California Constitution specifically addresses the prejudicial effect of instructional “misdirection of the jury.”. That constitutional provision states, in relevant part: “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” In People v. Wims, supra, 10 Cal.4th at pages 314-315, we observed: “‘The word “misdirection” logically includes every kind of instructional error. It seems manifest that incorrect, ambiguous, conflicting, or wrongly omitted instructions may equally “misdirect” the jury’s deliberations. Nothing in the language or history of article VI, section 13, suggests that its requirement of actual prejudice, determined by reference to “the entire cause, including the evidence,” applies to some forms of “misdirection,” but not to others.’ (Soule v. General Motors Corp. (1994)
Nor did the law preceding Modesto dictate such a rule. In support of its conclusion that failure to instruct on a lesser included offense necessarily
Moreover, in People v. Cahill, supra,
Cahill acknowledged that “certain errors, by their nature, result in a ‘miscarriage of justice’ within the meaning of the California harmless error provision requiring reversal without regard to the strength of the evidence received at trial.” (People V. Cahill, supra,
Like involuntary confessions, instructional errors that have the effect of removing an element of a crime from the jury’s consideration encompass a broad spectrum of circumstances and may be assessed in the context of the evidence presented and other circumstances of the trial to determine whether the error was prejudicial. The development of various exceptions to the reversible-per-se rule for instructional error affecting an element of a crime,
C
Reviewing the trial court’s constitutional error under the Watson standard, we find no reasonable probability that the outcome of defendant’s trial would have been different had the trial court properly instructed the jury to determine whether Officers Bridgeman and Gurney were peace officers. The prosecution presented unremarkable and uncontradicted evidence that they were employed as police officers by the City of Richmond. In addition, throughout the trial these officers and other witnesses corroborated that evidence in the course of testifying regarding other issues. At no point during the trial did defendant contest or even refer to the peace officer component of the distinctive uniform element of the crime. Defendant argued at trial that the police car was not distinctively marked as required by the statute but never disputed that it was driven by peace officers.
Based upon our review of the record, we conclude that no rational juror, properly instructed, could have found that these police officers were not peace officers. “It would, indeed, require fantastic speculation on our part to hold that a reasonable jury could have found otherwise.” (People v. Odie, supra,
m
A
As discussed in connection with defendant’s California constitutional claim, the United States Supreme Court has held that jury instructions relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violate the defendant’s due process rights under the federal Constitution. (Sullivan v. Louisiana (1993)
We have seen that the trial court’s instruction that Bridgeman and Gurney were peace officers effectively prevented the jury from deciding whether the prosecution proved this component of the distinctive uniform element of the crime set forth in section 2800.3. In essence, the trial court directed a finding, or a “partial verdict,” for the prosecution on that particular aspect of the crime. Therefore, it is clear under prior decisions that the peace officer instruction violated defendant’s due process rights under the United States Constitution.
B
The proper application of federal constitutional harmless error review of instructional error affecting the elements of a crime has been evolving for some time. In People v. Garcia, supra,
In Rose v. Clark (1986)
In Arizona v. Fulminante, supra,
In Yates v. Evatt (1991)
Subsequently, the United States Supreme Court made clear that at least one type of instructional error may amount to a structural defect in the trial mechanism that requires reversal regardless of the strength of the evidence of the defendant’s guilt. In Sullivan v. Louisiana, supra,
Applying the analysis set forth in these decisions, California courts, as well as lower federal courts, have reached diverse results when considering
In People v. Kobrin, supra,
The federal circuit courts are divided concerning the proper application of harmless error review for instructional errors. An example of the conflicting
In California v. Roy, supra,
The United States Supreme Court reversed the Ninth Circuit’s decision after concluding that the appellate court had applied a harmless error standard more strict than that required on collateral review of a state court determination. (California v. Roy, supra, 519 U.S. at pp. 4-6 [
Roy then expressly concluded that the instructional omission in that case fell within the category of trial errors subject to harmless error review: “This Court has written that ‘constitutional error’ of the sort at issue in Carella [creating an improper conclusive présumption] is a ‘trial error,’ not a ‘structural error,’ and that it is subject to ‘harmless error’ analysis. [Citation.] The state courts in this case applied harmless error analysis of the strict variety, and they found the error ‘harmless beyond a reasonable doubt.’ [Citation.] The specific error at issue here—an error in the instructions that defined the crime—is, as the Ninth Circuit itself recognized, as easily characterized as a ‘misdescription of an element’ of the crime, as it is characterized as an error of ‘omission.’ [Citation.] No one claims that the error at issue here is of the ‘structural sort’ that ‘ “[defies] analysis by ‘harmless error’ standards.” ’ [Citation.] The analysis advanced by the Ninth Circuit, while certainly consistent with the concurring opinion in Carella, does not, in our view, overcome the holding of Brecht. . . that for reasons related to the special function of habeas courts, those courts must review such error (error that may require strict review of the Chapman-type on direct appeal) under the Kotteakos standard.” (Roy, supra, 519 U.S. at pp. 5-6 [
On remand from the court’s decision in Roy, a majority of the Ninth Circuit adopted the analysis of the former dissenting opinion to that court’s
Although the United States Supreme Court’s decision in Roy considered the proper harmless error standard to be applied on collateral review, we find its analysis pertinent here. In holding that the Kotteakos standard for collateral review of constitutional errors governed the instructional omission in Roy, the high court found that the error fell within the general category of “trial errors” that are subject to Chapman harmless error review on direct appeal. The majority opinion in Roy also declined to embrace the conclusion in Justice Scalia’s concurring opinion that the error could be deemed harmless only in the very narrow, circumscribed situations described therein. In our view, Roy's analysis indicates that instructional errors—whether misdescriptions, omissions, or presumptions—as a general matter fall within the broad category of trial errors subject to Chapman review on direct appeal. The Ninth Circuit’s majority opinion on remand is consistent with that view.
Furthermore, as noted above, another United States Supreme Court decision handed down last term lends further support to the conclusion we reach. Johnson v. United States, supra,
After first concluding that the instructional error was “plain,” Johnson considered the defendant’s argument that the error also affected “substantial rights” because the failure to submit an element of the offense to the jury is structural error. The court responded: “A ‘structural error,’ we explained in Arizona v. Fulminante, is a ‘defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself,’
Although Johnson did not decide whether the materiality instruction amounted to structural error, we agree with the Attorney General’s position that Johnson suggests that an instruction to the jury that an element of the crime has been established generally is not reversible per se. A recent California Court of Appeal decision reached the same conclusion with regard to the meaning and effect of the United States Supreme Court’s decision in Johnson. In People v. Early (1997)
Defendant argues that Early is mistaken in its premise that application of the plain error doctrine is inconsistent with a rule of reversible-per-se error. According to defendant, Johnson is based solely upon the federal procedural rule that a failure to object in the district court may result in a waiver of constitutional rights—even rights that otherwise might lead to automatic reversal. We agree that Johnson’s holding is based upon a procedural rule, but the applicable rule required the court to consider whether the error seriously affected the fairness or integrity of judicial proceedings. Early correctly determined that Johnson’s conclusion that the error did not seriously affect the “integrity” or “fairness” of the trial is inconsistent with the view that the error affected the structural integrity of the trial process {Arizona v. Fulminante, supra, 499 U.S. at pp. 309-310 [111 S.Ct. at pp. 1264-1265]) or rendered the trial fundamentally unfair {Rose v. Clark, supra,
The foregoing United States Supreme Court decisions lead us to conclude that an instructional error that improperly describes or omits an
We have no occasion in this case to decide whether there may be some instances in which a trial court’s instruction removing an issue from the jury’s consideration will be the equivalent of failing to submit the entire case to the jury—an error that clearly would be a “structural” rather than a “trial” error. (See Rose v. Clark, supra, 478 U.S. at pp. 577-578 [106 S.Ct. at pp. 3105-3106] [total deprivation of the right to a jury trial is structural error].)
C
Having decided that the trial court’s instructional error is amenable to harmless error analysis, we proceed to consider whether it appears beyond a reasonable doubt that the error did not contribute to this jury’s verdict. (Yates v. Evatt, supra, 500 U.S. at pp. 402-403 [111 S.Ct. at pp. 1892-1893]; Chapman v. California, supra,
One situation in which instructional error removing an element of the crime from the jury’s consideration has been deemed harmless is where the defendant concedes or admits that element. (Connecticut v. Johnson, supra,
Furthermore, not only did defendant, by his conduct at trial, effectively concede that Bridgeman and Gurney were peace officers, but in view of the actual verdict returned by the jury in this case there is no reasonable or plausible basis for finding that the instructional error affected the jury’s verdict. The verdict demonstrates that the jury resolved every contested issue in favor of the prоsecution and, in particular, credited the testimony of all of the witnesses who testified regarding Bridgeman’s and Gurney’s status as peace officers. On the only issue related to the “peace officer” issue that defendant actually contested, the jury rejected defendant’s contention and found that the motor vehicle in which the officers were driving was “distinctively marked.” In addition, the jury also necessarily found, under the instructions, that the officers were wearing “distinctive” uniforms. Moreover, because the peace officer requirement is an expressly enumerated element of the crime, defendant does not (and could not) contend that he lacked notice of the element or that he did not have a full opportunity to present any evidence relevant to the issue. Finally, as we have discussed above, all of the evidence at trial relevant to the issue in question indicated that Bridgeman and Gurney were peace officers, and thus there is no rational basis upon which the instructional error could have affected the jury’s verdict. Given all of these circumstances, we are satisfied that the record establishes beyond a reasonable doubt that the trial court’s instructional error on the peripheral peace officer issue did not contribute to the jury’s guilty verdict and thus must be found harmless under the Chapman standard.
In reaching this conclusion, we note that the circumstances of the present case also fall within the Cantrell-Thomton exception to reversible error as articulated in this court’s prior decision in People v. Garcia, supra,
Relying on language in a number of high court decisions, defendant contends that an instructional error removing an element from the jury’s consideration never can be considered harmless unless the jury necessarily found the omitted element in connection with other findings required by the instructions, and he maintains that this requirement is not met in this case. (See, e.g., Sullivan v. Louisiana, supra,
As the United States Supreme Court has emphasized, “ ‘[t]he harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence [citation], and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error. Cf. R. Traynor, The Riddle of Harmless Error 50 (1970) (“Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it”).’ ” (Rose v. Clark, supra,
IV
We conclude that the trial court’s enror in instructing the jury that Bridge-man and Gurney were peace officers was harmless beyond a reasonable doubt. Accordingly, the judgment of the Court of Appeal is affirmed.
Baxter, J., Chin, J., and Brown, J., concurred.
Notes
Further undesignated statutory references are to the Vehicle Code.
Section 2800.3 provides in pertinent part: “Whenever willful flight or attempt to elude a pursuing peace officer in violation of Section 2800.1 proximately causes death or serious bodily injury to any person, the person driving the pursued vehicle, upon conviction, shall be punished by imprisonment in the state prison . . . .”
Section 2800.1, subdivision (a), provides:
“(a) Any person who, .while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer’s motor vehicle, is guilty of a misdemeanor if all of the following conditions exist:
“(1) The peace officer’s motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp.
“(2) The peace officer’s motor vehicle is sounding a siren as may be reasonably necessary.
“(3) The peace officer’s motor vehicle is distinctively marked.
“(4) The peace officer’s motor vehicle is operated by a peace officer, as defined in Chapter 4.5 (commencing with Section 830). of Title 3 of Part 2 of the Penal Code, and that peace officer is wearing a distinctive uniform.”
When defendant committed the offense, the subdivisions of section 2800.1 quoted above, presently designated as (a)(1) through (a)(4), were designated as subdivisions (a) through (d), but contained identical language. Further citations to section 2800.1 will refer to the current subdivision designations.
A city police officer comes within the definition of a peace officer. (Pen. Code, § 830.1, subd. (a).)
Defendant also was charged with reckless driving (§ 23104), but before trial the court granted the prosecutor’s request to dismiss that charge.
For example, several witnesses described the authorities’ sequestration and interview of Bridgeman and Gurney following the accident. One Richmond police officer involved in the investigation stated that he observed “Officer Bridgeman of the Richmond Police Department” when he arrived at the station, as well as Officer Gurney. A California Highway Patrol officer testified that his duties in connection with the accident included investigating the involvement of “two RPD officers.” When cross-examining Bridgeman, defense counsel elicited testimony that Bridgeman was sequestered because “[his] department want[ed] to know if [he was] responsible in any way ....’’ Gurney likewise testified that he was “interviewed by another Richmond police officer" as part of the investigation. In addition, Bridgeman and Gurney testified they were assigned to a joint task force of the California Highway Patrol and the Richmond Police Department, and that the officers followed the Richmond Police Department’s policy regarding high-speed chases.
A 1995 revision to the instruction, however, deleted the bracketed phrase and added the following comment to the Use Note: “ ‘Peace officer’ defined in CALJIC 1.26.” This revision first appeared in the July 1995 pocket part to volume 2 of CALJIC (5th ed.). Although the trial of this case occurred in mid-July 1995, presumably the trial court and the parties were unaware of this contemporaneous revision.
Other instructions requested by both parties contain check marks in the blanks beside both “People” and “Defendant.”
Defendant’s failure to object to the peace officer instruction does not preclude our review for constitutional error. (Pen. Code, § 1259 [“The appellate court may . . . review any instruction given, . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.”].)
As explained, the trial court’s peace officer instruction was consistent with CALJIC No. 12.86 as it existed until the 1995 revision, which deleted that optional component from the instruction and noted that “peace officer” is defined in CALJIC No. 1.26. (See Use Note to CALJIC No. 12.86 (6th ed. 1996).) Various classifications of individuals falling within the Penal Code’s definition of “peace officer” are listed in CALJIC No. 1.26 (6th ed. 1997 pocket pt.), including “any police officer, employed in that capacity and appointed by the chief of police or the chief executive of the agency, of a city.” The Use Note to CALJIC No. 1.26 (6th ed. 1996) states: “This instruction should be used to define a peace officer. The court should not simply tell the jury that a police officer is a peace officer. (People v. Lara (1994)
People v. Watson (1956)
Article VI, section 13, of the California Constitution provides: “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”
Carlos was overruled in People v. Anderson (1987)
Accordingly, People v. Phillips, supra, 64 Cal.2d 574, and its progeny are overruled to the extent they are inconsistent with our conclusion in this case.
Although Penal Code section 830.1 provides that a police officer of a city must be “appointed by the chief of police or the chief executive of the agency” to be a peace officer, defendant does not contend that the prosecution was required to present evidence of such appointment to prove that Bridgeman and Gurney were peace officers. In People v. Lara
Compare also People v. Daniels (1993)
People v. Beeman (1984)
Justice Scalia’s concurring opinion in Carella v. California, supra,
In Roy, Justice Scalia authored a concurring opinion, joined in relevant part by Justice Ginsburg, expressing the view that the absence of a “formal verdict” on the intent element of the crime could not be “rendered harmless by the fact that, given the evidence, no reasonable jury would have found otherwise.” (Roy, supra,
Justice Scalia did not join this portion of the opinion that discussed defendant’s structural error argument, although he did not write separately. (Johnson v. United States, supra,
Cf. People v. DeSantis (1992)
Cf. Sullivan v. Louisiana,,supra,
Therefore, defendant’s reliance upon Kobrin is misplaced. Kobrin emphasized that the case did not decide “whether, and under what other circumstances, a reviewing court may determine the omission of [an] instruction on an element was harmless beyond a reasonable doubt.” (
See also People v. Richie, supra,
The United States Supreme Court granted a petition for writ of certiorari in Rogers, but, after hearing oral argument, dismissed certiorari as improvidently granted on the ground that the issue was not presented properly. (Rogers v. United States (1998)
Concurrence Opinion
I concur in the judgment of the majority affirming the decision of the Court of Appeal. The trial court clearly erred by instructing defendant’s jury to find Officers Bridgeman and Gurney were peace officers within the meaning of Vehicle Code section 2800.3.1 agree the error in this case was not “structural,” as that term is used in Sullivan v. Louisiana (1993)
I respectfully disagree, however, with the holding or suggestion, contained in the majority opinion, that we may find the instructional error harmless on the theory the error concerned only a “peripheral” element of the charged crime, or that defendant conceded the issue at trial. As I explain, neither of these theories is legally supportable.
I.
The due process clauses of the Fifth and Fourteenth Amendments to the federal Constitution require the prosecution in a criminal case to prove “all elements of the offense charged [citations], and [to] persuade the factfinder ‘beyond a reasonable doubt’ of the facts necessary to establish each of those elements [citations].” (Sullivan, supra, 508 U.S. at pp. 277-278 [
Defendant Hal Lee Flood was charged with violating Vehicle Code
As the majority notes, the trial court instructed the jury that “Officer Bridgeman and Officer Gumey are peace officers.” Although there was
Does the error require we reverse defendant’s conviction? In Fulminante, supra,
Although I agree with the majority the error in this case was not structural, I do not join the entirety of the majority’s reasoning. Specifically, I disagree with the majority that we may draw as much as the majority indicates from
Although I thus disagree that an examination of California v. Roy, supra,
The instructional error here seems different in kind and degree from the types of errors the high court has found require automatic reversal, for instructing the jury that Officers Bridgeman and Gurney were peace officers within the meaning of the statute was done by an impartial judge; defendant
The only argument in defendant’s favor is that he was entitled to a jury decision on whether every element of a charged crime is true. Such an argument, though perhaps attractive in the abstract, is, however, at odds with the numerous cases in which the high court has found various trial errors subject to a harmless error test. (See collected cases in Chief Justice Rehnquist’s separate opinion in Fulminante, supra, 499 U.S. at pp. 306-307 [111 S.Ct. at pp. 1262-1263].) In particular, the error in this case seems no more “structural” than erroneously instructing the jury it may employ an unconstitutional, conclusive presumption to establish an element of an offense, an error that is subject to a harmless error test. (See Carella v. California (1989)
Although the error here was not structural, the trial court nevertheless violated defendant’s rights under the federal due process clauses by failing to instruct the jury on all elements of the charged offense. The applicable test for prejudice for nonstructural federal constitutional error is set forth in Chapman, supra,
Recent opinions of the high court have discussed the meaning of the Chapman test, refining the terms of its application. Thus, in Yates, supra,
The United States Supreme Court reversed. The high court explained that, although the state supreme court was correct in concluding this type of error was subject to a harmless error test, it nevertheless applied the wrong standard of review. “To say that an error did not contribute to the verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” (Yates, supra,
The South Carolina Supreme Court had concluded the error was harmless because the evidence of malice was so strong the jury would have found it unnecessary to rely on the improper presumption. (Yates, supra,
In short, in applying the Chapman test to determine whether a nonstructural federal constitutional error is harmless, an appellate court cannot simply reweigh the evidence to conclude a hypothetical reasonable jury would have found the existence of the missing element. Instead, the pertinent question is whether an examination of the record in this case indicates this jury would have found the missing element.
That this is the proper approach to Chapman review was underscored by the high court’s opinion in Sullivan, supra,
The court continued: “Once the proper role of an appellate court engaged in the Chapman inquiry is understood, the illogic of harmless-error review in the present case becomes evident. Since . . . there has been no jury verdict within the meaning of the Sixth Amendment, the entire premise of Chapman review is simply absent. There being no jury verdict of guilty-beyond-a reasonable-doubt, the question whether the same verdict of guilty-beyond-a reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which harmless-error scrutiny can operate. The most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonablе doubt— not that the jury’s actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough.” (Sullivan, supra,
We have never, however, applied the federal harmless error test'in such a rigid fashion. Thirteen years ago, we addressed the precise question posed here: How should an appellate court evaluate the prejudice flowing from a trial court’s failure to instruct the jury on all elements of an offense? In Garcia, supra,
Reading the plurality opinion in Connecticut v. Johnson (1983)
Nothing in the post-Garcia decisions of the United States Supreme Court suggests that court would now decline to recognize these two exceptions. Indeed, both are consistent with the test for harmless error as explained in Yates, supra, 500 U.S: 391, and Sullivan, supra,
The first Garcia exception is inapplicable here, for defendant was convicted, not acquitted, of violating section 2800.3. So too, in my view, is the second exception inapplicable. Contrary to the majority opinion, I disagree defendant conceded Bridgeman and Gurney were peace officers within the meaning of section 2800.1. (See maj. opn., ante, at pp. 504 [“defendant effectively conceded this issue” (italics added)], 505 [“defendant’s actions ... are tantamount to a concession that Bridgeman and Gurney were peace officers” (italics added)], 507 [issue “effectively was conceded by defendant”].) Neither defendant nor his attorney ever stated they were admitting or conceding the issue. More importantly, defendant pleaded not guilty, thereby placing in dispute every issue necessary to obtain a criminal conviction. {People v. Rowland (1992)
Although defendant was neither acquitted of nor conceded the issue, Garcia, supra,
The fourth Garcia exception drew on our decisions in People v. Cantrell, supra,
Since Garcia, we have recognized the continuing viability of the Cantrell-Thornton exception, even while finding the exception inapplicable on the
At the time we decided Garcia, we confessed to uncertainty “whether the United States Supreme Court [would] endorse the Cantrell-Thomton exception to its apparent rule favoring automatic reversal [for failure to instruct on an element of a criminal offense].” (Garcia, supra,
Of course, since Garcia, the high court has touched on this general subject many times, most notably in Carella v. California, supra,
Where the requirements of the Cantrell-Thomton exception exist, there similarly is no realistic chance the defendant was actually harmed by the error. Where (1) a criminal defendant knows (or should know) proof of a particular fact is important, (2) both parties present all the evidence at their disposal on the subject, and (3) an appellate court can conclude both that the fact is proved as a matter of law and the contrary evidence is unworthy of belief, the Cantrell-Thomton exception permits the conclusion the error was harmless because it had no realistic effect on the verdict. This conclusion is consistent with the other exceptions recognized both by this court and the high court, and nothing in Carella, Yates, or Sullivan is fatally at odds with recognition of this exception. (See also maj. opn., ante, at p. 506 [“the United States Supreme Court never has overturned a decision affirming a judgment on the basis of the Cantrell-Thomton exception”].) We opined in Garcia, supra,
Accordingly, I conclude the Cantrell-Thomton exception is still a viable legal doctrine and thus agree with that part of the majority’s opinion applying the exception in this case.
Section 2800.1 provides an element of the crime is that “[t]he peace officer’s motor vehicle is operated by a peace officer, as defined in Chapter 4.5. . . of Title 3 of Part 2 of the Penal Code . . . .”(§ 2800.1, former subd. (d); now see § 2800.1, subd. (a)(4), italics added.) Defendant was thus on notice that whether Bridgeman and Gurney were peace officers “as defined in Chapter 4.5 .. . of Title 3 of Part 2 of the Penal Code” was a material issue in the case. Because the “peace officer” requirement was a statutory one, neither defendant nor the People can claim they lacked the incentive to place in the record all the evidence they possessed on this issue. As the majority notes (maj. opn., ante, at p. 476), Officers Bridgeman and Gurney both testified they were employed by the Richmond Police Department.
This conclusion is consistent with People v. Richie, supra,
Nor is this conclusion inconsistent with People v. Kobrin (1995)
“First, a reviewing court generally only evaluates the strength of the evidence considered by the jury in assessing the prejudicial effect of an impermissible burden-shifting presumption, which may have had a comparatively minimal impact on the verdict. By contrast, in most cases the complete omission of an element inevitably affects the verdiсt both directly and adversely. [Citing, inter alia, Sullivan, supra,
We continued: “Second, even if we could infer with any degree of certainty the jury’s likely ‘findings’ under the instructions given, we have no basis for determining the extent to which they reflect a consideration of whether defendant’s false statements were material since the only reference to the issue specifically removed it from the deliberative process.” {Kobrin, supra,
Although Kobrin reversed the defendant’s conviction for failure to instruct the jury to determine whether the challenged statements were material, we expressly declined to decide whether, and in what circumstances, “a reviewing court may determine the omission of instruction on an element [of a criminal offense] was harmless beyond a reasonable doubt.” {Kobrin, supra,
Of course, the Cantrell-Thornton exception addresses this problem, as it requires the parties to have been aware the issue was a disputed one and have placed all their evidence into the record. Because we could not be sure the parties in Kobrin presented all relevant evidence on the issue, we could not rely on the Cantrell-Thornton exception. The same is not true in this case.
II.
In sum, I concur in the majority opinion to the extent it relies on the Cantrell-Thornton exception to find the error in this case was harmless beyond a reasonable doubt.
People v. Cantrell (1973)
All code references are to the Vehicle Code unless otherwise stated.
Fulminante was itself a confusing case. Justice White wrote parts I, H, and IV for the court, finding the defendant’s confession was coerced and that its admission could not be found harmless. In part III, White held that such error was automatically reversible. Chief Justice Rehnquist wrote a separate opinion in which a majority of five justices found the admission of a coerced confession was subject to the Chapman harmless error test. (Chapman v. California (1967)
Faretta v. California (1975)
Curiously, the most recent case to directly address the structural error issue (Sullivan, supra,
We rejected the People’s contention that a defendant’s due process right to have his or her jury instructed on the elements of a special circumstance allegation was less important for constitutional purposes than the right to have instructions on elements of a crime. (Garcia, supra,
Nor can I join the majority’s alternate rationale that the “peace officer” requirement was merely a “peripheral” element (maj. opn., ante, at pp. 505, 506, 507) that is deserving of somewhat less due process protection under In re Winship, supra,
We continued in Garcia, stating, “[w]e believe that, in an appropriate case, the United States Supreme Court would accept this exception to the automatic reversal standard.” (Garcia, supra,
Penal Code section 830.1, subdivision (a), which is located in “Chapter 4.5 .. . of Title 3 of Part 2 of the Penal Code,” provides “Any . . . police officer, employed in that capacity and appointed by the chief of police or the chief executive . . . of a city . . . is a peace officer.”
Concurrence Opinion
I concur fully in the Chief Justice’s opinion. The court’s telling
the jury that “Officer Bridgeman and Officer Gurney are peace officers,”
I write to emphasize a narrow basis for finding the error harmless. In Sullivan v. Louisiana (1993)
Justice Scalia recently summarized his position: “The error in the present case can be harmless only [1] if the jury verdict on other points effectively embraces this one or [2] if it is impossible, upon the evidence, to have found what the verdict did find without finding this point as well.” {California v. Roy (1996)
Sullivan is consistent with this view. The question, it says, “is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand.” {Sullivan v. Louisiana, supra,
Finding the error harmless on this basis is not “speculating” on what a “reasonable” or “hypothetical” jury might have done, but is instead analyzing what this actual jury actually did. (Cf. dis. opn. of Mosk, J., post, at p. 528; dis. opn., of Kennard, J., post, at pp. 556-557, fn. 3.) dissent.
Dissenting Opinion
IIn the superior court, defendant was charged with crimes including willful flight from a pursuing peace officer, specifically, City of Richmond Police Officers Rudy Bridgeman and Michael Gurney, resulting in death or serious bodily injury, which is a felony defined by Vehicle Code sections 2800.1 and 2800.3. One of the crime’s elements is that the pursuer is, in fact, a peace officer—which means, for present purposes, a “police officer ... of a city” who is both “employed in that capacity” and “appointed by the chief of police or the chief executive of the agency” (Pen. Code, § 830.1, subd. (a)). Defendant pleaded not guilty. Trial was by jury. Evidence was introduced that Bridgeman and Gurney were “employed in [the] capacity” of “police officer[s]” of the City of Richmond. (Ibid.) But none was introduced that they were “appointed by the chief of police or the chief executive of the agency.” (Ibid.) In accordance with a pattern instruction, the superior court instructed the jury on the crime of willful flight from a peace officer. In doing so, however, it omitted the peace officer element. More precisely, it failed to submit the issue whether Bridgeman and Gurney were peace officers. Instead, and apparently sua sponte, it simply directed that “Officer Bridgeman and Officer Gurney are peace officers.” (Italics added.)
I
The first question that we must address is whether the superior court’s instructional omission of the peace officer element of the crime of willful flight from a peace officer is erroneous under the United States Constitution.
The answer that we must give is affirmative.
Under decisions of the United States Supreme Court including Sullivan v. Louisiana (1993)
It follows that instructions to the jury in a state criminal trial that omit the requirement of proof of every element of a crime beyond a reasonable doubt are erroneous under the Fourteenth Amendment’s due process clause incorporating the Fifth and Sixth Amendments. (See Jackson v. Virginia (1979)
Furthermore, instructions to the jury in a state criminal trial that merely omit a proper description of the requirement of proof of every element of a crime beyond a reasonable doubt are themselves erroneous under the Fourteenth Amendment’s due process clause incorporating the Fifth and Sixth
“The Sixth Amendment,” Sullivan explains, “provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. ...’.. . [W]e [have] found this right to trial by jury in serious criminal cases to be ‘fundamental to the American scheme of justice,’ and therefore applicable in state proceedings. The right includes, of course, as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of ‘guilty.’ [Citation.] Thus, although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he may not direct a verdict for the State, no matter how overwhelming the evidence. [Citations.]
“What the fаctfinder must determine to return a verdict of guilty is prescribed by the [Fifth Amendment’s] Due Process Clause. The prosecution bears the burden of proving all elements of the offense charged, [citations], and must persuade the factfinder ‘beyond a reasonable doubt’ of the facts necessary to establish each of those elements, [citations]. This beyond-a-reasonable-doubt requirement, which was adhered to by virtually all common-law jurisdictions, applies in state as well as federal proceedings. [Citation.]
“It is self-evident, we think, that the Fifth Amendment requirement of proof beyond a reasonable doubt and the Sixth Amendment requirement of a jury verdict are interrelated. It would not satisfy the Sixth Amendment to have a jury determine that the defendant is probably guilty, and then leave it up to the judge to determine . . . whether he is guilty beyond a reasonable doubt. In other words, the jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt.” {Sullivan v. Louisiana, supra, 508 U.S. at pp. 277-278 [113 S.Ct. at pp. 2080-2081], italics in original.)
Likewise—and of chief concern here—instructions to the jury in a state criminal trial that omit the requirement of proof of every element of a crime beyond a reasonable doubt are erroneous under the Fourteenth Amendment’s due process clause incorporating the Fifth and Sixth Amendments. In United States v. Gaudin (1995)
II
The second question that we must address is whether the superior court’s instructional omission of the peace officer element of the crime of willful flight from a peace officer is reversible under the United States Constitution.
For error under the United States Constitution, as made plain in decisions of the United States Supreme Court including Sullivan and Yates v. Evatt (1991)
On the question of reversibility, as on the question of error, the answer that we must give is affirmative.
A
The superior court’s instructional omission of the peace officer element of the crime of willful flight from a peace officer is automatically reversible.
Instructions to the jury in a state criminal trial that omit the requirement of proof of every element of a crime beyond a reasonable doubt are automatically reversible. (See Jackson v. Virginia, supra,
Furthermore, instructions to the jury in a state criminal trial that merely omit a proper description of the requirement of proof of every element of a crime beyond a reasonable doubt are themselves automatically reversible. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 278-282 [113 S.Ct. at pp. 2080-2083].)
“Once the proper role of an appellate court engaged in the Chapman inquiry is understood, the illogic of harmless-error review” in the face of an instructional omission bearing on the standard of proof beyond a reasonable doubt “becomes evident. [When] . . . there has been no jury verdict within the meaning of the Sixth Amendment, the entire premise of Chapman review is simply absent. There being no jury verdict of guilty-beyond-a-reаsonable-doubt, the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which harmless-error scrutiny can operate. The most an appellate court can conclude is that a jury would surely have found” the defendant “guilty beyond a reasonable doubt— not that the jury’s actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough. [Citation.] The Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty.” (Sullivan v. Louisiana, supra, 508 U.S. at pp. 279-280 [113 S.Ct. at pp. 2081-2082], italics in original.)
Likewise—and of chief concern here—instructions to the jury in a state criminal trial that omit the requirement of proof of every element of a crime beyond a reasonable doubt are automatically reversible. Under the holding of Sullivan, there is no jury verdict within the meaning of the Sixth Amendment that can support harmless error analysis when there is an instructional omission bearing on the standard of proof beyond a reasonable doubt; for there is then no jury verdict that the defendant is guilty of the crime beyond a reasonable doubt. Under the reasoning of Sullivan, there is similarly no jury verdict within the meaning of the Sixth Amendment that can support harmless error analysis when there is an instructional omission of an element of the crime; for there is then no jury verdict that the defendant is guilty of the crime beyond a reasonable doubt.
At Defendant A’s trial, there is an instructional omission bearing on the standard of proof beyond a reasonable doubt; the jury purportedly finds him guilty -of the crime by finding all three of its elements, albeit not beyond a reasonable doubt; its verdict may be graphically depicted thus:
[[Image here]]
At Defendant B’s trial there is an instructional omission of one of the elements of the crime; the jury purportedly finds him guilty of the crime by finding two of its elements beyond a reasonable doubt, without finding the third element at all; its verdict may be graphically depicted thus:
[[Image here]]
Defendant A’s trial is covered by Sullivan’s holding. The instructional omission bearing on the standard of proof beyond a reasonable doubt is automatically reversible because a reviewing court cannot supply its own findings of the three elements beyond a reasonable doubt in place of the jury’s findings not beyond a reasonable doubt (Sullivan v. Louisiana, supra,
Defendant B’s trial is covered by Sullivan’s reasoning. The instructional omission of the third element is automatically reversible because a reviewing court cannot supply its own finding of the element in place of the jury’s nonfinding (see Sullivan v. Louisiana, supra, 508 U.S. at pp. 280-281 [113 S.Ct. at pp. 2082-2083])—graphically, it cannot make up for what is totally lacking in the third bar representing that element. Sullivan’s words, quoted above, bear requotation: “A reviewing court can only engage in pure speculation—its view of what a reasonable jury would have done. And when it does that, ‘the wrong entity judge[s] the defendant guilty.’ ” (Id. at p. 281 [
At this point, we should note Sullivan’s final sentences prior to disposition, with their reference to Arizona v. Fulminante (1991)
To conclude.
As in Sullivan itself, a defendant’s “right to a jury verdict of guilt beyond a reasonable doubt” (Sullivan v. Louisiana, supra,
So too, as in this cause, a defendant’s “right to a jury verdict of guilt beyond a reasonable doubt” {Sullivan v. Louisiana, supra,
B
Even if it were not automatically reversible, the superior court’s instructional omission of the peace officer element of the crime of willful flight from a peace officer could not be held harmless beyond a reasonable doubt under Chapman.
“The Chapman test,” as explained in Yates, “is whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” {Yates v. Evatt, supra, 500 U.S. at pp. 402-403 [
Thus, the focus under Chapman is what the jury actually decided and whether the error may have tainted its decision. “[T]he issue ... is whether the jury actually rested its verdict on” an adequate basis, “independently of the” error.' {Yates v. Evatt, supra,
As a consequence, the focus under Chapman is not what a reviewing court might itself decide if it looked to the entire record.
Second, a reviewing court is not automatically entitled to consider the entire record. The broad “assumption” in decisions like Clark that the “harmlessness of an error is to be judged after a review of the entire record” is unsound—unless, that is, “the jurors, as reasonable persons, would have considered the entire . . . record” in spite of the error. {Yates v. Evatt, supra, 500 U.S. at pp. 405-406 [
Neither is the focus under Chapman what a reviewing court might conjecture the jury would have decided in the absence of the error. The “hypothetical inquiry” whether, if the jury had not been exposed to the error, it would have made the decision that it did, “is inconsistent with the harmless-error standard announced in Chapman .... While such a hypothetical inquiry ensures that the State has, in fact, proved” what it had to prove “beyond a reasonable doubt, it does not ensure that it has” done so “to the satisfaction of a jury." {Yates v. Evatt, supra,
Lastly, the focus under Chapman is not what a reviewing court might speculate concerning “what effect the . . . error might generally be expected to have upon a reasonable jury . . . .” {Sullivan v. Louisiana, supra,
In determining whether the superior court’s instructional omission of the peace officer element of the crime of willful flight from a peace officer could be held harmless beyond a reasonable doubt under Chapman, we must commence our analysis with the declaration of Yates in mind: “To say that an error did not contribute to the verdict is . . .to find that error unimportant in relation to everything else the jury considered on thе issue in question, as revealed in the record.” {Yates v. Evatt, supra,
But how are we to go about assessing the “importance” or “unimportance” of the superior court’s instructional omission of the peace officer element of the crime of willful flight from a peace officer?
Yates proceeds thus with regard to an instruction incorporating a mandatory rebuttable presumption of an element of a crime.
“[T]o say that an instruction to apply [such a] presumption did not contribute to the verdict is to make a judgment about the significance of the presumption to reasonable jurors, when measured against the other evidence considered by those jurors independently of the presumption.
“Before reaching such a judgment, a court must take two quite distinct steps. First, it must ask what evidence the jury actually considered in reaching its verdict. ... In answering this question, a court does not
“Once a court has made the first enquiry into the evidence considered by the jury, it must then weigh the probative force of that evidence as against the probative force of the presumption standing alone. To satisfy Chapman’s reasonable doubt standard, it will not be enough that the jury .considered evidence from which it could have come to the verdict without reliance on the presumption. Rather, the issue under Chapman is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption. Since that enquiry cannot be a subjective one into the jurors’ minds, a court must approach it by asking whether the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption.” (Yates v. Evatt, supra, 500 U.S. at pp. 403-405 [
Put differently, the first question is “whether the jury’s verdict . . . rest[ed] on that evidence as well as on the presumption[] . . . .” (Yates v. Evatt, supra,
The second question is “whether that evidence was of such compelling force as to show beyond a reasonable doubt that the presumption[] must have made no difference in reaching the verdict obtained”—in other words, whether the evidence of the presumed fact made the presumption superfluous. (Yates v. Evatt, supra,
“It is only when the effect of the presumption is comparatively minimal to this degree that it can be said, in Chapman’s words, that the presumption did not contribute to the verdict rendered.” (Yates v. Evatt, supra,
Yates goes on to suggest an even more “restrictive” analysis for an instruction incorporating a mandatory irrebuttable or “conclusive” presumption of an element of a crime. (Yates v. Evatt, supra,
It follows that an analysis more restrictive still would be required for an instruction omitting an element of a crime altogether. Such an instruction removes any “ultimate fact” from the jury’s consideration without leaving behind any “predicate facts” to be found. If a mandatory irrebuttable or conclusive presumption “tend[s] to deter a jury from considering any evidence for the presumed fact beyond the predicate evidenсe” (Yates v. Evatt, supra,
Under an analysis of this sort, the superior court’s instructional omission of the peace officer element of the crime of willful flight from a peace officer could not be held harmless beyond a reasonable doubt under Chapman.
I accept that Yates permits “overwhelming” evidence to play a role with regard to an instruction incorporating a mandatory rebuttable presumption of an element of a crime: “[T]he issue under Chapman is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption. Since that enquiry
Ill
The majority do not, and cannot, disagree with the conclusion that the superior court’s instructional omission of the peace officer element of the crime of willful flight from a peace officer is erroneous under the United States Constitution. We may therefore pass on.
The majority, however, do indeed disagree with the conclusion that the superior court’s instructional omission of the peace officer element is reversible under the United States Constitution.
Before proceeding further, we must address, and reject, the majority’s attempt to cast doubt on the existence of the instructional omission of the peace officer element by casting doubt on the existence of the element itself—which, as noted, requires “appoint[ment]” as a “police officer ... of a city” “by the chief of police or the chief executive of the agency” as well as “employ[ment] in that capacity” (Pen. Code, § 830.1, subd. (a)). Such an effort may be discerned in their repeated reference to this element as merely a “component” of what they say is merely a single element of the crime of willful flight from a peace officer. As I read Vehicle Code sections 2800.1 and 2800.3, peace officer status may be deemed a “component” of every element. Or at least of virtually every element. The drafters of the pattern instruction followed by the superior court broke the crime down into eight elements—and peace officer status was a “component” of seven. (See pp. 522-523, fn. 1, ante.) We need not detain ourselves on this point. The majority fail to follow through. In the end, they admit what they must, owning that the “peace officer requirement is an expressly enumerated element of the crime . . . .” (Maj. opn., ante, at p. 505.)
We must similarly address, and reject, the majority’s attempt to minimize the significance of the instructional omission of the peace officer element by
We must next address, and reject, the majority’s attempt to deny the absence of evidence that Officer Bridgeman and Officer Gumey were peace officers, that is, that they were both “employed in [the] capacity” of “police officer[s]” of the City of Richmond and “appointed by the chief of police or the chief executive of the agency” (Pen. Code, § 830.1, subd. (a)). As to “employment,” the evidence may have been “uncontradicted.” (E.g., maj. opn., ante, at p. 475.) But, as to “appointment,” it was nonexistent. Relying on People v. Lara (1994)
We must then address, and reject, the májority’s attempt to examine the instructional omission of the peace officer element, practically exclusively, in light of the distinction between “structural” and “trial” defects or errors, rather than under the Sixth Amendment jury-verdict preclusion analysis. We must do the opposite. Sullivan itself so implies. Other considerations are in support. When it was fabricated by Chief Justice Rehnquist in his opinion in Fulminante, the distinction between “structural” and “trial” defects or errors did not carry logical force.
The short answer is this. Roy and Johnson do nothing more than indicate, in contexts substantially different from the present one of direct review of a state criminal judgment, what is already apparent from the analysis set out above—namely, that the United States Supreme Court has not squarely held whether, on such review, an instructional omission of an element of a crime
The long answer is as follows.
Roy did not arise in a context like the present, that is', direct review of a state criminal judgment, but rather in a context substantially different, that is, a federal habeas corpus proceeding by a state prisoner collaterally challenging such a judgment.
In Brecht v. Abrahamson (1993)
After trial in the Superior Court of the State of California for the County of Butte, Kenneth Duane Roy was convicted on a jury’s verdict of first degree murder and robbery. On appeal, he contended that the superior court had committed error under People v. Beeman (1984)
Filing a petition for writ of habeas corpus in the United States District Court for the Eastern District of California as a state prisoner, Roy raised the same contention of Beeman error. Finding the error harmless, the federal district court denied relief. A divided panel of the United States Court of Appeals for the Ninth Circuit affirmed. Later hearing the case in bank, the Ninth Circuit reversed. It stated that the “instructional error in this case may be described either as the omission ... or as the misdescription of an element” of a crime. (Roy v. Gomez (9th Cir. 1996)
On certiorari, the United States Supreme Court vacated the judgment of the Ninth Circuit Court of Appeals and remanded the cause for further proceedings. In a per curiam opinion, it concluded as follows. In a state-prisoner federal habeas corpus proceeding, the federal district court, in accordance with Brecht, “ordinarily should apply the ‘harmless error’ standard . . . previously enunciated in Kotteakos . . . , namely ‘whether the error “had substantial and injurious effect or influence in determining the jury’s verdict.” ’ ” (California v. Roy, supra, 519 U.S. at pp. 4, 5 [
In a concurring opinion, Justice Scalia, who was joined by Justice Ginsburg on this point, stated that he “agree[d] with [the] . . . per curiam opinion . . . that the Brecht-0'Neal standard for reversal of the conviction (‘grave doubt as to the harmlessness of the error’) rather than the more stringent Chapman standard (inability to find the error ‘harmless beyond a reasonable doubt’) applies to the error in this case when it is presented, not on direct appeal, but as grounds for habeas corpus relief. . . . [ft] I do not understand the opinion, however, to address the question of what constitutes the harmlessness to which [Kotteakos’s] more deferential standard is applied . ... As we held in Sullivan v. Louisiana,
At the outset, let us agree to overlook the United States Supreme Court’s error under California law, which followed that of the Ninth Circuit. The superior court committed Beeman error. That means that what it omitted in its instructions was not an element of a crime: From all that appears, it properly defined first degree murder and robbery, the offenses of which Roy was convicted. What it omitted was rather the intent required for the theory of vicarious liability based on aiding and abetting.
With that said, Roy indicates, in the context of a federal habeas corpus proceeding by a state prisoner collaterally challenging a state criminal judgment, that the United States Supreme Court has not squarely held whether, on direct review of such a judgment, an instructional omission of an element of a crime is automatically reversible.
Johnson, which we take up next, also did not arise in a context like the present, that is, direct review of a state criminal judgment, but rather in a
Joyce B. Johnson was subpoenaed before a United States grand jury that was investigating matters including alleged drug trafficking by Earl James Fields, who was her lover. She testified that she had obtained tens of thousands of dollars to improve her home from a box of cash given to her late mother in 1985 or 1986 by one Gerald Talcott.
On the basis of this testimony, Johnson was indicted for perjury. One of the elements of this crime is the materiality of the statement or statements in question. At trial before a jury in the United States District Court for the Middle District of Florida, she faced evidence that Fields had negotiated the purchase of her home, that she had paid for the property with eight different cashier’s checks, including two from a corporation in which Fields had an interest, and that Talcott had died in 1982, long before he had assertedly given her late mother the mysterious “box of cash.” Without any objection on her part, the federal district court omitted the element of materiality from its instructions to the jury: It stated that materiality was a question entrusted to its determination; it then directed that the statements at issue were, in fact, material. The jury returned a verdict of guilty. The federal district court rendered judgment accordingly.
Subsequently, in Gaudin, the United States Supreme Court held that an instructional omission of the element of materiality of the crime of making false statements, which is related to the crime of perjury, was erroneous under the Fifth and Sixth Amendments. (United States v. Gaudin, supra, 515 U.S. at pp. 509-511, 522-523 [115 S.Ct. at pp. 2313-2314, 2319-2320].)
On Johnson’s appeal, the United States Court of Appeals for the Eleventh Circuit affirmed. Johnson apparently contended that, pursuant to Gaudin, the federal district court’s instructional omission of the element of materiality of the .crime of perjury was erroneous under the Fifth and Sixth Amendments and, as such, automatically reversible. Applying rule 30 of the Federal Rules of Criminal Procedure (18 U.S.C.) (hereafter rule 30), the Eleventh Circuit determined that, by failing to object to the instructional omission, she had failed to preserve her claim for review. Rule 30 states that “[n]o party may assign as error any portion of the [jury] charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection.” Looking to rule 52(b) of the same rules (hereafter rule 52(b)), the Eleventh Circuit proceeded to determine whether it could consider the claim nonetheless. Rule 52(b) states that “[p]lain errors . . . affecting
On certiorari, the United States Supreme Court affirmed.
The court held that, pursuant to Gaudin, an instructional omission of the element of materiality of the crime of making false statements was indeed erroneous under the Fifth and Sixth Amendments.
But the court also held that, under rule 30, Johnson had failed to preserve her claim for review by failing to object to the instructional omission below, and that, under rule 52(b), the Eleventh Circuit could not consider the point.
At the outset, the court rejected an argument made by Johnson that the Federal Rules of Criminal Procedure did not apply because an instructional omission of an element of a crime is a “structural” error: The “seriousness of the error claimed does not remove consideration of it from [their] ambit . . . .” (Johnson v. United States, supra,
The court then turned to apply rule 52(b) as construed in Olano. It concluded as follows. First, the instructional omission below was “error.” (Johnson v. United States, supra,
What does Johnson amount to? It indicates, in the context of direct review of a federal criminal judgment subject to the Federal Rules of Criminal Procedure, that the United States Supreme Court has not squarely held whether, on direct review of a state criminal judgment not subject to those rules, an instructional omission of an element of a crime is automatically reversible. Again, the court avoided the question: “It is by no means clear that the error here fits within” the “structural” class. {Johnson v. United States, supra,
Having disposed of Roy and Johnson, we come to this. Recall the hypothetical about Defendant A and Defendant B with its graphical depiction of the jury verdict returned against each. (See pp. 527-528, ante.) The instructional omission at Defendant A’s trial bearing on the standard of proof beyond a reasonable doubt is automatically reversible under Sullivan’s holding because a reviewing court cannot supply its own findings of the elements of the crime beyond a reasonable doubt in place of the jury’s findings not beyond a reasonable doubt—graphically, it cannot make up for what is partially lacking in each of the bars representing the elements. The majority effectively admit this proposition, as they must. The instructional omission at Defendant B’s trial of one of the elements is automatically reversible under Sullivan’s reasoning because a reviewing court cannot supply its own finding of the element in place of the jury’s nonfinding—graphically, it cannot make up for what is totally lacking in the bar representing that element. The majority effectively deny this proposition, as they may not. For, if a reviewing court cannot make up for what is partially lacking in all the elements, it cannot make up for what is totally lacking in one: if it cannot supply part of all, it cannot supply all of a part.
Next, in conсluding that the superior court’s instructional omission of the peace officer element of the crime of willful flight from a peace officer can be held harmless beyond a reasonable doubt under Chapman, the majority rely largely on certain apparent exceptions to the rule of automatic reversal for an omission of this sort.
In Justice Blackmun’s plurality opinion in Connecticut v. Johnson (1983)
In this cause, however, the first of these exceptions is not applicable. The majority do not claim otherwise. The peace officer element of the crime of willful flight from a peace officer did not belong only to a crime as to which the jury acquitted defendant. Rather, it pertained to one of which it found him guilty.
Neither is the second of these exceptions applicable. The peace officer element was not admitted by defendant. True, it was not contested in the course of his defense. But it was put into dispute by his plea of not guilty (Pen. Code, § 1019), and was not removed from dispute by any of his acts or omissions thereafter. The majority argue to the contrary. Wrongly. In part, they assert that defendant requested the pattern instruction followed by the superior court, in which the latter directed, apparently sua sponte, that “Officer Bridgeman and Officer Gurney are peace officers.” (Italics added.) The record on appeal discloses that defendant asked for the pattern instruction. But it does not disclose that he asked for the direction that Bridgeman and Gurney were, in fact, peace officers. In other part, the majority assert, in effect, that a defendant admits any element that he fails to contest. If that were so, most defendants, who do not defend scattershot, would be deemed to admit most elements, and some, who defend by mistaken identity, would be deemed to admit all. And if that were so, the requirement of the Fourteenth Amendment’s due process clause that the state must prove every element of a crime beyond a reasonable doubt would be rendered nugatory.
The third of these exceptions is also not applicable. The majority do not claim otherwise. The peace officer element was not necessarily found by the jury under other, proper instructions. Instead of being found, it was given: the superior court simply directed that “Officer Bridgeman and Officer Gurney are peace officers.” (Italics added.)
Neither is the fourth of these exceptions applicable. The peace officer element was not effectively found by the jury. To repeat: Instead of being found, it was given. In any event, there were simply no “predicate facts” that might be said to underlie the “ultimate fact” of the status of Officer
In Garcia, we derived from People v. Cantrell (1973)
After Sullivan, we find our “uncertainty” dispelled: we now know that the United States Supreme Court will not “endorse” the Cantrell-Thomton exception. For this exception—which is unique to California, and has never even been referred to by the court of any other jurisdiction, state or federal, in a reported decision^would require a reviewing court to infer what the parties knew, assess what they did, and then determine in whose direction, and how sharply, the balance of evidence verged. If it were to do that, a reviewing court would “engage in pure speculation—its view of what a reasonable jury would have done.” (Sullivan v. Louisiana, supra,
But even if the Cantrell-Thomton exception could be accepted, it would not be applicable here. For we could hardly conclude, as we would have to, that the People and defendant “recognized” that the peace officer element was “in issue.” (People v. Garcia, supra,
In substance and effect, the majority hold the superior court’s instructional omission of the peace officer element of the crime of willful flight from a peace officer to be harmless beyond a reasonable doubt under Chapman “upon” their own “view” that the “ ‘evidence’ ” that Officer Bridgeman and Officer Gurney were peace officers was “ ‘overwhelming.’ ” (Chapman v. California, supra,
Because the superior court committed reversible error under the United States Constitution by omitting from its instructions the peace officer element of the crime of willful flight from a peace officer, I would reverse the judgment of the Court of Appeal to the extent that it affirmed the judgment of the superior court convicting defendant of this crime.
In pertinent part, the superior court’s instruction on the crime of willful flight from a peace officer was as follows:
“[E]very person who flees or attempts to elude a pursuing peace officer in violation of Vehicle Code Section 2800.1, and the flight or attempt to elude causes death or serious bodily injury to any person is guilty of a violation of Vehicle Code Section 2800.3, a felony.
“Officer Bridgeman and Officer Gurney are peace officers.
a
“In order to prove a violation of Vehicle Code section 2800.3, each of the following elements must be proved:
“1. A person, while operating a motor vehicle, willfully fled or otherwise attempted to elude a pursuing peace officer;
“2. Such person did so with the specific intent to evade the pursuing peace officer;*523 “3. The peace officer’s vehicle exhibited at least one lighted red lamp visible from the front;
“4. The person saw or reasonably should have seen the red lamp;
“5. The peace officer’s vehicle sounded a siren as reasonably necessary;
“6. The peace officer’s motor vehicle was distinctively marked, as defined;
“7. The peace officer’s motor vehicle was operated by a peace officer wearing a distinctive uniform; and ■
“8. The flight from or the attempt to elude a pursuing police officer was the cause of serious bodily injury to another person.” (Italics added.)
For the analysis in this section, see People v. Kobrin (1995)
Yates contains language, bearing on a point not pertinent here, that is disapproved in Estelle v. McGuire (1991)
For the analysis in this section, see People v. Kobrin, supra,
For the analysis in this section, see People v. Harris (1994)
The majority also assert that “defendant does not contend that the prosecution was required to present evidence of’ “appointment.” (Maj. opn., ante, at p. 490, fn. 13.) Not expressly perhaps. But certainly by implication.
As I explained in my dissenting opinion in People v. Cahill (1993)
*536 “[In Fulminante,] Chief Justice Rehnquist . . . declare[s] that the question whether a federal constitutional error is automatically reversible or, instead, is subject to harmless-error analysis under Chapman depends on the following crucial distinction.
“On one side, there is what he labels ‘ “trial error,” ’ which ‘occurfs] during the presentation of the case to the jury, and which may therefore be quantitatively assessed ... in order to determine whether [it] was harmless beyond a reasonable doubt.’ [Citation.] . . .
“On the other, there are what he calls ‘structural defects in the constitution of the trial mechanism, which defy analysis by “harmless-error” standards.’ [Citation.] Here, assertedly, belong, inter alia, the ‘total deprivation of the right to counsel at trial,’ the participation of a ‘judge who was not impartial,’ the ‘unlawful exclusion of members of the defendant’s race from a grand jury,’ the denial of the ‘right to self-representation at trial,’ and the deprivation of the ‘right to public trial.’ [Citation.] Each of these flaws ‘affect[s]’ the ‘entire conduct of the trial from beginning to end’ or the ‘framework within which the trial proceeds.’ [Citation.] ‘ “Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.” ’ [Citation.]
“Chief Justice Rehnquist’s crucial distinction ‘fails.’ [Citation.] His dichotomy, it may be noted, ‘has no support in precedent.’ [Citation.] And that is the least of its weaknesses.
“To begin with, the distinction simply does not work. The omission of an instruction on the prosecution’s burden of proof beyond a reasonable doubt is, in Chief Justice Rehnquist’s words, a ‘classic “trial error[.]” ’ [Citation.] Nevertheless, it requires automatic reversal. [Citation.]9 By contrast, the denial of a criminal defendant’s right to be personally present at his own trial is surely as much a ‘structural defect’ as the denial of his right to represent himself. Indeed, it would ‘strain[] credulity’ to assert otherwise. [Citation.] All the same, denial of the right of personal presence is deemed subject to harmless-error analysis. [Citation.]
“Perhaps more important, the distinction is ‘meaningless.’ [Citation.] Chief Justice Rehnquist ‘never clearly articulates the structure that the structural errors undermine.’ [Citation.] In fact, he never articulates that ‘structure’ at all.” (People v. Cahill, supra, 5 Cal.4th at pp. 547-548 (dis. opn. of Mosk, J.).)
Footnote 9 states: “The giving of a reasonable-doubt instruction that is merely ‘deficient’ under the United States Constitution is arguably an even more ‘classic “trial error.” ’ Yet in Sullivan v. Louisiana (1993) [508] U.S. [275, 278-282 [124 L.Ed.2d 182 , 188-191,113 S.Ct. 2078 ]], the United States Supreme Court unanimously held that it requires automatic reversal. Chief Justice Rehnquist concurred in the opinion of the court. Writing separately, he made a transparently unsuccessful attempt to square his vote with the ‘trial error/structural defect’ distinction he had earlier created in Fulminante. [Citation.] His failure demonstrates that the distinction is specious.” (People v. Cahill, supra,5 Cal.4th at p. 548, fn. 9 (dis. opn. of Mosk, J.).)
Citing U.S. v. North (D.C. Cir. 1990)
On remand, over a dissent, the Ninth Circuit affirmed: “We hold that the erroneous jury instruction in this case neither substantially nor injuriously influenced the jury’s verdict, and was thus harmless under Brecht and O’Neal.” {Roy v. Gomez (9th Cir. 1997)
See Rogers v. United States (1998)
As to the views expressed by my colleagues in their separate opinions, I note as follows. I disagree with Justice Chin that the “jury could not possibly find what it actually did find without also finding” the omitted peace officer element of the crime of willful flight from a peace officer. (Cone. opn. of Chin, J., ante, at p. 521, italics in original.) As I explain in the text, the jury did not find “predicate facts” that might be said to underlie the “ultimate fact” of the omitted element. Nor could it have done so. As I also explain in the text, there was no evidence whatsoever on the underlying question whether Officer Bridgeman and Officer Gurney had been “appointed by the chief of police or the chief executive of the agency.” (Pen. Code, § 830.1, subd. (a).) By contrast, I agree with much of what Justice Werdegar has written, even though she concurs in the judgment and I do not. But, as I set out in the text, the Cantrell-Thomton exception is neither viable nor available. Finally, I agree with even more of what Justice Kennard has written, joining her in dissent. Nevertheless, I part company with her when she states: “Omitting an element from the jury’s consideration is not the sort of error that “deifies] analysis by ‘harmless error’ standards.” ’ (Sullivan v. Louisiana [(1993)]
Because of the result that I reach, I need not determine whether the superior court’s instructional omission of the peace officer element of the crime of willful flight from a peace officer is erroneous and automatically reversible under the California Constitution. The less said about Cahill the better. Unless what is said is “overruled.”
Dissenting Opinion
I dissent.
The Sixth Amendment to the federal Constitution “gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged.” (United States v. Gaudin (1995)
Does this error require automatic reversal of defendant’s conviction? Or is it subject to the “harmless error” test of Chapman v. California (1967)
As I have pointed out in the past: “To determine whether an error ‘contributed to’ a verdict, a reviewing court does not ask whether a hypothetical jury in a hypothetical trial in which the error did not occur would surely have reached the same verdict. (Sullivan v. Louisiana (1993) 508 U.S.
The majority rejects that approach, concluding it does not apply when evaluating the prejudicial effect of an instructional error that, as here, has removed an element of an offense from the jury’s consideration. Instead, proceeding by a novel approach of its own invention, the majority declares the error to be “harmless beyond a reasonable doubt.” I disagree. Because there is no basis for concluding that the jury’s guilty verdict was “surely unattributable to the error,” the error was not harmless beyond a reasonable doubt and the judgment must be reversed.
I
While evading a pursuing police car containing Richmond Police Officers Rudy Bridgeman and Michael Gurney, defendant’s car collided with a van, seriously injuring its occupants. Under Vehicle Code section 2800.1 (further undesignated statutory references are to this code), it is a misdemeanor for a driver “while operating a motor vehicle and with the intent to evade, [to] willfully flee[] or otherwise attempt[] to elude a pursuing peace officer’s motor vehicle” if that vehicle (1) “is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp”; (2) “is sounding a siren”; (3) “is distinctively marked”; and (4) “is operated by a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, and that peace officer is wearing a distinctive uniform.” The crime becomes a felony, however, when the defendant’s attempt to elude the pursuing peace officer “proximately causes death or serious bodily injury to any person” (§ 2800.3); that was the offense charged against defendant. Here, the trial court’s instruction to the jury included the statement, “Officers Bridgeman and Gurney are peace officers.” The jury found defendant guilty as charged.
II
To find defendant guilty of violating section 2800.3, the jury had to find, among other things, that he was trying to elude a car “operated by a peace
As I observed in People v. Harris, supra, 9 Cal.4th 407, 457 (cone. & dis. opn. of Kennard, J.): “Under the United States Supreme Court’s decisions in Yates v. Evatt [(1991)]
To determine whether instructional error “contributed to” the verdict within the meaning of the “harmless error” test of Chapman v. California, supra,
When can a reviewing court be assured that a jury’s guilty verdict actually rested on findings that the jury made and thus was “surely unattributable” to instructional error that removed from the jury’s consideration an element of the crime charged? One instance that comes to mind is when the jury has necessarily resolved the factual question under other properly given instructions. (California v. Roy (1996)
Another instance of harmless error is described in Justice Scalia’s concurring opinion in Carella v. California, supra,
This case is distinguishable from Osband. It is true that by finding defendant guilty of violating section 2800.3, the jury must have necessarily found the statutory elements that defendant was fleeing from a “distinctively marked” car displaying “at least one lighted red lamp visible from the front” and “sounding a siren.” These determinations, however, are not “functionally equivalent” (Carella v. California, supra,
A third instance in which failure to have a jury determine the existence of an element can be harmless error is when the defendant concedes or admits the omitted element. (Carella v. California, supra,
As I explained in Harris: “When a fact is undisputed, it is reasonable to assume that the jury accepted it as true, because ordinarily the jury would
I pointed out in Harris that the right to jury trial in criminal cases includes a right to have the jury rather than a court decide every “issue of fact” necessary to establish the elements of the charged offense. {People v. Harris, supra, 9 Cal.4th 407, 459 (cone. & dis. opn. of Kennard, J.).) When, however, the defendant has admitted a fact or the parties have stipulated to its existence, there is nothing left for the jury to resolve with regard to that one issue. {Ibid.)
Defendant’s “not guilty” plea in this case put in issue every fact necessary to convict him of the charged offense. (Pen. Code, § 1019; People v. Balcom (1994)
Here, when the trial court instructed the jury that the occupants of the pursuing car were peace officers, the trial court and not the jury made the actual finding on the existence of an “ultimate fact” needed to convict defendant of a violation of section 2800.3: that the car he was evading was, in the words of the statute, “operated by a peace officer.” Because defendant did not concede the issue, the trial court’s instruction deprived defendant of his Sixth Amendment right to have the jury determine, beyond a reasonable doubt, “his guilt of every element of the crime with which he is charged.” {United States v. Gaudin, supra,
Ill
The majority concludes that the trial court’s error in removing an element of the charge from the jury’s consideration was harmless beyond a reasonable doubt. {Chapman v. California, supra,
According to the majority, “defendant effectively conceded” the peace officer issue by requesting “the CALJIC instruction that included the optional, bracketed phrase instructing the jury that the officers were peace officers, and nothing in the record suggests that he objected to the trial court’s informing the jury that Bridgeman and Gurney were peace officers.” (Maj. opn., ante, at pp. 504-505, italics added.)
Here are the relevant facts: In instructing the jury on the elements necessary to prove the charged crime, the trial court used a version of CALJIC No. 12.86 that included an optional bracketed phrase “[_is a peace officer.]”
The majority reads far too much into defendant’s request for CALJIC No. 12.86, a standard jury instruction defining the charged crime. Defendant was entitled to have the jury instructed on the general principles of law raised by the evidence. {People v. Daniels (1991)
The majority also asserts that “the jury resolved every contested issue in favor of the prosecution,” noting the jury’s findings that the car pursuing defendant was “distinctively marked” and that its occupants were wearing “distinctive” uniforms. (Maj. opn., ante, at p. 505.) But the majority never explains how these jury findings on elements other than the one at issue here render the trial court’s instructional error harmless. Whatever findings the jury did make in finding defendant guilty of violating section 2800.3, it was never asked to decide whether the pursuing vehicle was, in the words of the statute, “operated by a peace officer.” (See ante, p. 550.) Nor are any of the elements that the jury did find so closely related to the ultimate fact in issue—whether the driver of the pursuing car was indeed a peace officer within the meaning of section 2800.3—that no rational jury could find those elements without also finding the ultimate fact in issue. (Ante, at p. 551.)
The majority also concludes that this cаse satisfies the requirements of the so-called “Cantrell-Thomton exception,” which this court fashioned in People v. Garcia (1984)
Here, the majority attempts to justify its reliance on the Cantrell-Thomton exception on the ground that “the United States Supreme Court never has overturned a decision affirming a judgment on the basis of the CantrellThomton exception.” (Maj. opn., ante, at p. 506.) What the majority omits to mention, however, is that the high court has never reviewed a decision affirming a judgment on the basis of the Cantrell-Thomton exception. I am aware of no case (and the majority cites none) in which this court has relied exclusively on Cantrell-Thomton to uphold a conviction after the trial court omitted an element from the jury’s consideration. It is true that some decisions of our Courts of Appeal have used the Cantrell-Thomton reasoning. But in the nearly 10 years since Justice Scalia, in his concurring opinion in Carella v. California, supra,
The Cantrell-Thomton exception does not satisfy federal constitutional standards for deciding whether a jury’s verdict was “surely unattributable to the error” (Sullivan v. Louisiana, supra,
“The constitutional right to a jury trial embodies ‘a profound judgment about the way in which law should be enforced and justice administered.’ Duncan v. Louisiana,
Here, the trial court improperly removed from the jury’s consideration an element of the criminal charge. Because there is no basis here for concluding beyond a reasonable doubt that the trial court’s error did not contribute to the jury’s verdict of “guilty” in this case, I would reverse the judgment.
As relevant here, CALJIC 12.86 (1993 new) (5th ed. pocket pt.) reads: “[Defendant_ is accused [in count[s]_] of having violated Vehicle Code Section 2800.3, a crime.] [^Q Every person who, while operating a motor vehicle and with the specific intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer, and [H] (1) The peace officer’s motor vehicle is exhibiting at least one lighted red lamp visible from the front, and the person either sees or reasonably should have seen the lamp; ft[] (2) The peace officer’s motor vehicle is sounding a siren as may be reasonably necessary; ftl] (3) The peace officer’s motor vehicle is distinctively marked; and [1[] (4) The peace officer’s motor vehicle is operated by a peace officer wearing a distinctive uniform; [1] is guilty of a violation of Vehicle Code section 2800.1, a misdemeanor. fl[] Every person who flees or attempts to elude a pursuing peace officer in violation of Vehicle Code Section 2800.1 and the flight or attempt to elude causes death or serious bodily injury to any person is guilty of a violation of Vehicle Code section 2800.3, a felony. R[] [__is a peace officer.]” (Italics added.)
The Cantrell-Thomton exception is named after two earlier cases, People v. Cantrell (1973)
Justice Werdegar has authored a concurring opinion agreeing with the majority’s reliance on the Cantrell-Thomton exception but disagreeing “that we may find the instructional error harmless on the theory the error concerned only a ‘peripheral’ element of the charged crime, or that defendant conceded the issue at trial.” (Cone.' opn. of Werdegar, J., ante, at p. 508.) As I have already explained, Cantrell-Thomton is not good law.
Justice Chin has signed the majority opinion. He has also written a concurring opinion “to emphasize a narrow basis for finding the error harmless” here. (Cone. opn. of Chin, J., ante, at p. 521.) In support, he quotes this language from Justice Scalia’s concurrence in California v. Roy, supra,
Contrary to Justice Chin’s assertion, here the jury findings on issues that did not subsume the “peace officer” element, an issue the trial court removed from the jury, will not meet the standard taken from Justice Scalia’s concurrence in Roy. Instead of quoting a selective sentence from a paragraph in Justice Scalia’s concurrence in Roy, Justice Chin should have quoted the rest of the paragraph: “The absence of a formal verdict on this point cannot be rendered harmless by the fact that, given the evidence, no reasonable jury could have found otherwise. To allow the error to be cured in that fashion would be to dispense with the trial by jury. ‘The Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action, or else directed verdicts for the state would be sustainable on appeal; . . .’” (California v. Roy, supra,
Justice Mosk decides as I do that the judgment must be reversed, but he considers the instructional error in this case to be “automatically reversible” (dis. opn. by Mosk, J., ante, at p. 525) while I do not. Omitting an element from the jury’s consideration is not the sort of error that “ ‘defiles] analysis by “harmless error” standards.’ ” (Sullivan v. Louisiana, supra,
The diversity of views expressed in the several opinions in this case suggests that, as I have noted before, the controlling federal standard pertaining to harmless errror is not as clear as it might be, and further elucidation by the United States Supreme Court would thus be useful. (People v. Harris, supra, 9 Cal.4th 407, 460-461 (cone. & dis. opn. of Kennard, J.); see also People v. Wims (1995)