*1 S030610. Dec. [No. 1994.] PEOPLE,
THE Plaintiff and Respondent, HARRIS,
WILLIAM GONZALES Defendant and Appellant.
Counsel Court, Morse, for Defend- Supreme under appointment David McNeil ant and Appellant. Williamson, General, Chief Assistant E. Attorney George
Daniel Lungren, General, Anderson, General, Attorney Assistant Robert R. Attorney Smith, Gen- Elle Deputy Attorneys Venturi and Alison Gamand Margaret eral, and Respondent. for Plaintiff
Opinion was convicted Gonzales Harris William LUCAS, C. J. Defendant second murder, for robbery, kidnapping, kidnapping of first degree counts), first (two (commercial) burglary second robbery, degree degree firearm, aof of a possession theft (residential) grand burglary, degree vehicle, teller machine use of an automatic in a fraudulent concealed firearm Code, counts). (Pen. (two counts), auto theft (two card (ATM) access 3, 212.5, 459, 460, 207, 211, former subd. 187, 209, (b), subd. §§ Code, to state 10851.) He was sentenced (a), Veh. subd. 484g; § murder, an aggregate with to life for first degree for 25 years prison offenses.1 for the remaining of 28 8 months determinate sentence years court claims, that the trial contended on appeal defendant other Among robbery. “immediate element on the erred in instructing stayed pursuant robbery conviction was kidnapping for imprisonment 1 A life for the term of Code section 654. to Penal Code, (Pen. to our §211.) Pursuant holding People Hayes P.2d Cal.3d 577 which case was Cal.Rptr. (Hayes), decided after trial but while matter on defendant’s this was pending appeal, instructional went Court found error. court find the Appeal error to the for and first robbery, robbery, prejudicial kidnapping degree In other was murder convictions. all affirmed. respects judgment As bewill the Court of under our explained, Appeal correctly concluded “immediate that the holding Hayes jury was misinstructed on pres- ence” element of We for review robbery. granted People’s petition consider soundness of the court’s further conclusion appellate instructional error was As will the Court of we conclude prejudicial. appear, erred in defendant’s Appeal convictions for reversing robbery, kidnapping and first murder. robbery, degree
I 16, 1990, defendant, On the morning Tuesday, who January time, 20;2 F., years (Shon old and 3 Valdez companions age Maple, 15; P., 143) age and Frank drove age defendant’s car Stockton to the Sacramento area to into break and steal cars car stereos. stole They items, stereo various other equipment, which Mercury Cougar, they *5 drove back to Stockton.
Later that evening, Valdez F. and Frank P. Maple, drove around Stockton in the stolen Mercury while defendant remained at Maple’s house.4 During this they a Mazda RX7 foray spotted an office parked complex parking vehicle; lot. to examine the They stopped while were they looking inside the Mazda, car Atherton, alarm went off. The owner of the Martin emerged an office building, looked in the direction of the and told them he group, was call going to the police. The three chased Atherton back into his office trial, 2 Prior to defendant’s Maple successfully moved to sever his case from defendant’s. 3 Most covering evidence the events from the kidnapping time victim Martin up Atherton to his murder eyewitness came from the testimony of Frank P. minor was originally charged murder, theft; kidnapping, with robbery, burglary and auto he thereafter agreed testify to truthfully prosecution for plead guilty kidnapping exchange for prosecution’s dismissal of remaining charges an eight-year and recommendation commitment Authority. the California Youth thief, 4 Defendant on testified direct “experienced” examination that he an he car Maple had trained and the burglary, they two minors in auto and that as became more experienced his companions—whom three guys my he at point referred to one as “the [in] group”—would go out to commit thefts without him “the normal routine.” Defendant night testified this he go declined to out with group, they but told them could use Mercury. the stolen frequently Defendant stay Maple’s would Maple’s over house since girlfriend. sister was defendant’s him, hit him in the head with a to subdue then obtained building, flashlight his car from his him inside the keys person placed Mazda. Outside of P., Atherton’s told Frank “We have to kill him.” Frank P. presence, Maple voiced an Valdez F. “take him to objection. suggested they [defendant].” The three then Atherton and returned in both cars to kidnapped Maple’s house.
Upon and Valdez F. entered the house while P. arriving, Frank Maple stood guard over Atherton in the Mazda. defendant’s By own he testimony, victim, handcuffs to restrain the gave because he did not Maple assertedly want of “the out of hurt guys Atherton. He also group” getting [his] a blindfold to use on Atherton because gave Maple he did not want the victim to see or him. Defendant until identify waited returned to the Maple Mazda and handcuffed and blindfolded Atherton before himself out- going side and into the driver’s side of the getting vehicle. Defendant testified that Atherton was seated to him in next seat of the Mazda and that passenger F., car, Valdez who was also inside the handed him Atherton’s wallet when (defendant) he asked for the victim’s identification. Defendant testified he removed the from Atherton’s wallet and it. Atherton’s money pocketed wallet also contained several credit cards. next told defendant he wanted to return to Atherton’s office
Maple to clean blood from the Defendant building up prior struggle. thought office; would be better if the entire returned he Atherton’s group together testified on direct examination that he wanted to the victim “on the keep move.” Defendant drove Atherton’s Mazda with Valdez F. as a passenger and the victim still blindfolded and handcuffed the back of the car. Maple drove the stolen with Frank P. as a When arrived at Mercury passenger. they defendant, inside, the victim’s office and Frank P. went complex, Maple Atherton’s while Valdez F. stood over Atherton in the using key, guard Defendant, lot. himself a former testified he had seen parking security guard, *6 Alarm card in the victim’s wallet Bay and to planned straighten up offices, them, lock and then “call in” Atherton’s code number as he security the victim imagined would have done. tried to clean routinely Maple up blood; then he found a box cash and took some of it. containing
Defendant, and Frank P. returned to the Maple lot. After parking Maple determined that Atherton’s fit the office defend- key neighboring building, ant, and Valdez F. went inside that Maple, while Frank P. remained building behind Atherton. to defendant’s guarding the three According testimony, “broke into small to loot floor executive groups” proceeded “fancy briefcases, offices.” the items removed to the vehicles were Among five electronic and a safe. equipment large green returned to the first Maple office to building retrieve a disc compact player.
Defendant admitted the then drove to Atherton’s residence for the group victim, items. The still additional blindfolded and hand- stealing purpose cuffed, vehicle, was transferred to the drove that with Frank Mercury. Maple Mazda, P. as a while defendant continued with passenger, driving Valdez F. as his around the comer Maple from passenger. parked Mercury Atherton’s residence. Frank P. remained outside the victim while guarding defendant, F., and Valdez Maple, again using key key Atherton’s entered victim’s home and looted it. ring, “Two three suitcases” full of vehicles, victim’s items were removed from the residence to the including firearms, ammunition, safe, leather and ATM cards from Atherton’s jackets, which defendant retained his Defendant possession. cautioned the others home, not to ransack the that a friend or relative of explaining the victim have a and come might for him. possibly key looking Defendant next directed the to an isolated group park infrequently pa- trolled police order to examine the loot give himself more time to “think.” nine-millimeter Defendant took out a semiautomatic com- pistol, menting that was “a The beauty.” evidence suggested defendant retained on his possession the remainder pistol person during episode. According Frank P.’s defendant testimony, next threatened Atherton in cards, order to obtain the access codes for his ATM the victim he telling would never see or hear” “probably defendant then again. group pro- ceeded two branches of Atherton’s bank where defendant unsuccessfully accounts, withdraw attempted from Atherton’s money the ATM’s finding out of cash at that late hour.
With daylight once approaching, returned to group again Maple’s house to off the Defendant drop guns. testified: “These are I kids. just firearms I respect and know how to treat them but these properly, are just kids and they don’t.”5 The next followed group Maple’s suggestion they take the victim to a motel room. Defendant selected the motel. The motel clerk who registered defendant estimated Maple arrived between they 7:30 and 8 a.m. on 17. January records reflected the (Computer computer Atherton’s office was last used at 3:08 17th.) a.m. on the Defendant for paid the room with cash from room, Atherton’s wallet. Inside the motel Ather- ton’s head wounds were cleaned and his blindfold removed to him to permit rinse his eyes. During this time defendant and the others hid their faces from Afterwards, victim, his handcuffs, view. still in was again blindfolded. *7 house, 5 defendant testified further that en route Maple’s back to all property with the stolen guns and still in the two cars and the victim still blindfolded and handcuffed the Mazda which defendant was driving, the group up “racing” against wound Mercury the Mazda streets, city down the Mazda, screeching their wheels ultimately causing and flat tire changed which had to be and later fixed. motel Atherton several excursions from the while was Defendant made Mazda; in there. On he drove the victim’s some held each being trip captive him, Valdez F. Frank P. least although instances or Maple, accompanied these During in the remained behind to Atherton. always guard one group and to obtain defendant used Atherton’s ATM American cards Express trips, food and various other items at cash from the victim’s accounts and purchase defendant, their at the motel mall. to According throughout stay shopping their next it was he made the decisions for determined who group $1,600 in the from moves. Defendant obtained over aggregate fraudulently At some defendant Atherton’s bank and credit card accounts. point various returned and Valdez F. left the motel and to house. Maple’s house, left the motel Later that his then telephoned same night, Maple P., in the back his residence. with the and Frank to driving Mercury victim P., leaving Frank went inside him According Maple briefly, guarding to victim, a shotgun then back outside. When Valdez F. came out with came home) had stolen Atherton’s in a (which sleeping bag been from wrapped ran the trunk back Mercury, momentarily it in placed Maple Valdez residence). still in the (defendant Maple, inside the home was present Atherton, drove with others explaining F. and Frank P. then off Maple want would not wake did not to come. up that defendant either route, En Valdez F. a rural area in Alameda County. drove to Maple Maple his wristwatch. The victim complied. directed Atherton him give out. removed Atherton’s handcuffs the car and everyone got Maple stopped trunk, Atherton F. took the from the directed shotgun and blindfold. Valdez back, there,” the victim about over and shot him in right causing “go Valdez hill and shot Atherton a to fall down a hill. F. walked down the farther down the body second time. He and then Atherton’s Maple dragged and hid it bag. hill under sleeping house, defend- Valdez F. Frank P. to Maple’s
When returned Maple, defendant, “we did it.” Valdez F. told ant allegedly just awakening. F. tired of man they “got When defendant asked Valdez why, explained tired of him around being around.” Defendant “So being you just get replied: could him a more days waste the fucker. We have you go kept couple [and] little bit he been at work for a days, or a hasn’t why couple longer explaining and some shotgun were messed Defendant took the things up.” shotgun why and, and better with returned to the murder scene shells along Maple, concealed Atherton’s body. defendant to Stockton in the early morning January
Upon returning obtain additional cash used Atherton’s bank cards to and Maple again *8 415 his to make they purchases. group’s accounts which used various sell and the demise unfolded when to the victim’s car they attempted from account of prospective recognizing vehicle buyers, newspaper arrest, Mazda, his of Atherton and his notified disappearance police. Upon wallet, identification, bank defendant had Atherton’s American Express Thereafter, ATM cards in his defendant three statements possession. gave police, one a four-hour interview that was transcribed a court during by led later read Defendant also to the murder reporter jury. police scene where Atherton’s recovered. body
II 211, As defined in Penal Code section and as essentially incorpo in (the below), “[job rated CALJIC No. key 9.40 instruction robbery given another, is the felonious of bery in the of personal possession property will, from his or immediate person presence, and his against accomplished (Italics added.) means force fear.” Relying holdings People 118,124 432], v. Miramon Cal.App.3d People Cal.Rptr. Brown (hereafter Cal.App.3d Cal.Rptr. Miramon-Brown), the trial court below further defined the “im element of mediate for the as follows: “The presence” act is deemed to have occurred within the immediate presence the victim as as the long victim perceived any overt act connected with the commission offense. and all Any sensory victim are to perceptions considered [be] (Italics determining added.) presence.”
In
Hayes, supra, Cal.3d
we rejected the Miramon-Brown definition
that,
of immediate
We
presence.
observed
in contrast to that instruction
“
which
required
victim 'perceive[]
overt act connected with the
any
”
offense,’
commission of the
generally
definition of imme
accepted
“[t]he
'
diate presence ...
is that
thing
of a
“[a]
presence
[immediate]
reach,
person,
which is
respect
so within his
robbery,
inspection,
control,
could,
observation or
that he
if not overcome
violence or
’
fear,
Thus,
prevented by
retain his
of it.”
possession
Court
[Citations.]
stated in
Appeal
v. Bauer
(1966) 241
Cal.App.2d
'
687], that
Cal.Rptr.
“immediate
“must mean at
least an area
within which the victim could
to exercise some
reasonably
expected
’
physical control over
property.”
Spencer v. United
(Quoting
[her]
[(D.C.
1940)
States
Cir.
We reasoned in Hayes that with the jury charged “perception overt act” definition of “immediate view presence” might improperly
416
the “immediate presence”
“overt acts” satisfying
acts themselves as
forcible
Miramon-Brown
with the
instructing jury
We concluded that
requirement.
“devoid
“immediate
element
presence”
definition
rendered the
effectively
fear’
‘force
it redundant with the
all independent meaning, making
in Hayes
robber
628.) Because the
element.”
52 Cal.3d at
(Hayes,
p.
supra,
con-
victim,
have
could reasonably
had assaulted and
his
the killed
re-
the “immediate presence”
under
instruction that
cluded
the erroneous
assault,
connected
“overt act
itself an
was satisfied
quirement
fatal
in the
occurred
with the commission of the offense”
unquestionably
the Miramon-Brown
We
immediate
expressly disapproved
victim’s
presence.
definition of
instruction,
American rule”
in its stead the “prevailing
adopting
628,
52 Cal.3d at
supra,
above. (Hayes,
described
“immediate presence”
411,
10;
(1991) 54 Cal.3d
440
Cal.Rptr.
[285
also
v. Webster
People
fn.
see
31,
(Webster).)
The Court of Appeal present was the functional “immediate instruction defining court’s special Hayes. we Miramon-Brown instruction disapproved of the equivalent definition for be faulted applying expansive trial court below can hardly Miramon, 140 set forth in v. People of “immediate presence” Brown, 124, 212 at Cal.App.3d page v. and People Cal.App.3d page tried in the summer 1419, defendant was were law” when cases that “good instruction, Nonetheless, failed to give which because the faulty 1990. “immediate presence” definition of the to the legislative effect appropriate defendant’s Hayes while specifically disapproved was robbery, element in that case. benefit of our holding is entitled to the was he pending, appeal 602, 606 (1969) Cal.Rptr. 1 Ballard (See, Cal.App.3d [81 v. e.g., People of the Court of of the decision 742].) we affirm that portion Accordingly, “immediate defining pres erred in specially the trial court finding Appeal for the jury. ence”
III instructional error prejudi remains whether the The question murder, convic robbery, for to the first degree kidnapping cial matter, General us urges apply the Attorney As a threshold tions. 46 (1956) v. Watson (People standard. “miscarriage justice” Watson However, 818, 243].) Hayes, as we P.2d explained Cal.2d 836 [299 offense of on an element was misinstructed “[b]ecause able to unless we are conviction is reversal of the robbery required robbery, (People harmless doubt. a reasonable that the error was beyond conclude 1013]; 850, 194, P.2d 757 210 (1988) Cal.Rptr. 46 Cal.3d Hernandez 137, P.2d 414-415 Cal.Rptr. 45 Cal.3d v. Odle 628; 184].)” see Chapman Cal.3d at (Hayes, supra, California (Chapman).) U.S. 18 87 S.Ct. A.L.R.3d *10 The defendant in this case asked the to convict prosecution jury essentially of abettor, or on robbery, either as a direct as an aider and based perpetrator the of taking (1) one or all of the items: Atherton’s car following keys car; contents; (2) (3) and Atherton’s wallet and its the items from Atherton’s office; or the items from Atherton’s The Court of house. ex- Appeal car, concluded that the of Atherton’s and the pressly taking by implication contents, of (to his wallet and its “as a matter of use the taking law” court’s satisfied the appellate for that phraseology) requirement robbery be taken from the victim’s property forcibly immediate “person pres- ence,” a conclusion we with as more below. agree fully The explained court found the two theories” advanced appellate remaining “taking the office, more troublesome: of items from Atherton’s People taking of taking items of from his home. personal property The Court of reasoned: cannot be certain the based its Appeal “[W]e verdict on general robbery from takings directly [the Atherton’s person]. Takings defendant at directly perpetrated Atherton’s offices and house
were also to the as a basis for presented convicting defendant robbery. During office Atherton takings, was held his car captive lot; the office it was estimated he 35 parking was feet from the first office and 80 feet from the . second. . . During house Atherton takings, was car, again captive in a this time ‘around the parked comer of the same block’ six or apparently seven houses away. ...” The Court of Appeal clearly troubled distances between the home and respective office premises from which the “takings” were accomplished, and the locations of the parked cars in which the victim was being restrained while the took lootings place. The court at one in its point opinion be appeared applying Chapman standard when it concluded: “With to the respect office house ‘a takings, reasonable finder of fact could conclude either that the was not so property distant as beyond victim’s control and or that it was too protection, distant be in the victim’s immediate at the time force was presence used. Because the issue of immediate could presence have been reasonably decided either we are unable to way, declare that the misinstruction this ” element was harmless (Fns. reasonable doubt.’ beyond omit- ted; Hayes, 52 quoting 629.) Cal.3d at indicated,
The Court of however, further Appeal that it was placing reliance on principal this court’s opinion Green (Green)6 in its conclu- P.2d support Cal.3d Cal.Rptr. court instructional error was prejudicial. sion that Miramon-Brown items reasoned that of the four theories”—the “taking taking two offices, rendered Atherton’s of items from his home—were taking as a result of the misinstruction. “legally impermissible theories guilt” “cannot be The court those two theories concluded because law,” since “the resolved in reversal is favor of a matter guilt required from the record on which reviewing theory court cannot determine Green, 69.) relied.” Cal.3d (Paraphrasing *11 the of For reasons next we conclude that Court explained, Appeal’s rule was flawed. it erred in Green’s of Critically, prejudice analysis applying to of this reversal the facts case. Green, 1, first degree
In Cal.3d the defendant was convicted of supra, murder, that circumstance the and Special allegations robbery, kidnapping. was committed the commission of and kidnapping murder during relevant (by found true. The of Green here portion arguably analogy) were circumstance, count, the the related special involved kidnapping kidnapping 62-74.) (Id. for at and the “asportation” requirement pp. kidnapping. the victim distinct of of segments In Green we identified three asportation (Green, supra, could have based its verdict. which the jury kidnapping upon 62-63.) we the trial court at As the first found 27 Cal.3d regards segment, pp. fraud, on the facts that not misinstructed the law: the were “undisputed” jury fear, to on the or the means which the victim was induced go force by TTie first of Attor- automobile ride that constituted the segment asportation. aspor- error instruct the jury General conceded was therefore to ney in simple kidnapping could a of tation fraud alone conviction support (Id. 63-64.) the of segment asportation, second Regarding California. at pp. scene, error. occurred the the murder we found no The third victim to driving car where forced from the to the spot when the victim was to walk parked walked, 63, 65.) the she (Id. at We found that distance she was murdered. feet, matter to the satisfy asportation was “insufficient as a of law” about 90 the defendant finding guilty for verdict kidnapping support requirement (Id. 67.) offense. at p. of that of segments found clear error as to two of the three legal possible
Having
Green,
such
prejudiced
in
we
on to consider whether
errors
went
asportation
whether the
We could not determine from record
verdict.
kidnapping
segments
had
verdict on either of the “legally
based its
jury
insufficient
834,
826,
fn. 3
point
People v. Hall
41 Cal.3d
on an unrelated
6 Overruled
112,
Cal.Rptr.
Under the facts of the
it cannot
said that the misinstruc-
present
tion with the
“immediate
Miramon-Brown
of
characterization
presence”
in
resulted
of
of
presentation
insufficient”
jury
“legally
theory
the case within the
of
Here
are
meaning
Green.
we
able to affirmatively
conclude that under
of the four
any
theories” advanced
“taking
by
not,
law,
prosecution,
distances involved do
as a matter
violate the
of
standards defining
“immediate
that we
for California
adopted
Webster,
robbery prosecutions
(Cf.
in
52
Hayes, supra, Cal.3d 577.
54
supra,
at
440-441.)
Cal.3d
In this
pp.
regard Green is
and its rule of
distinguishable,
reversal
here.
inapplicable
v. Guiton
7 Recently,
45],
in
4
1116
Cal.Rptr.2d
Cal.4th
we
847P.2d
high
considered the effect of
v. United States
holding
court’s
in
may ways by be additional which a court can determine that error in the Green situation is (Id. question 1130-1131.) harmless. We leave to future cases.” the victim’s car taking car and wallet keys, We turn first to the prosecution’s theory defendant was guilty abettor, either as a direct or as an aider robbery, perpetrator and based on the car, of Atherton’s car taking keys and his wallet and its contents. Defendant was not when Valdez F. present and Frank P. first Maple, Atherton, him, accosted beat obtained his car from his keys person, him, abducted him forcibly in his own taking car back to house Maple’s where defendant waited. Frank P. testified he car removed the personally alarm, as well as a which keys, “beeper” operated Mazda’s car from And, Atherton’s at the time he was person subdued. being forcibly although it was not established with who first removed the wallet from certainty Atherton, it was taken from his at some between the time person point abducted, beaten, Atherton threesome, was first in his car placed by the defendant, and the time at which while seated next to the victim in the house, Mazda front of either was handed the Maple’s wallet Valdez F. to defendant’s (according own or removed the wallet testimony) directly from (the Atherton’s himself person prosecution’s theory). minimum,
At a the evidence in this case therefore established that the victim’s car and wallet were keys removed from his directly person. Signif- never icantly, claimed otherwise. Defense counsel’s theory defense defense to the based on the robbery charge the victim’s car keys, car, and wallet was not that those items had not been taken the victim’s person immediate presence, but that defendant was not a direct partici- and thus did not share pant, at this initial accomplice liability, stage robbery-abduction. Defense counsel to the urged closing argument jury: did not rob Mr. Atherton “Clearly personally [defendant] any property.” *13 (Italics added.) But counsel conceded that “these freely items were obvi- Shon, taken Valdez and ously by Frank at the time first abducted Mr. they Atherton.” He argued most reasonable inference to be drawn from the evidence was that Shon took the wallet from Maple the victim’s person, “I think the circumstantial stating: evidence is clear that it was Shon fairly who had the best to remove (Italics added.)8 the wallet.” opportunity indicated, have
As we the Court of below concluded that Appeal expressly car, the taking Atherton’s and the by implication of his wallet and contrast, prosecutor urged 8 In the the supported conclude the evidence an inference personally defendant that person removed the wallet from Atherton’s while seated next to him house, in the Mazda in Maple’s front of Maple after had blindfolded and handcuffed the victim at defendant’s direction. Defendant himself testified that as he sat next to the victim in vehicle, the he removed the cash from the pocketed victim’s wallet and it. He testified further on cross-examination that when he obtained the victim’s point, wallet at this he and the others eager were all to see what it prosecutor argued jury: contained. The to the “The defense says—focuses in on this wallet that was taken from Mr. says Atherton. And [defense counsel] you that the reasonable interpretation is Maple that Shon is the one who took the wallet. So
421 contents, its “as a matter of law” satisfied the for requirement robbery the victim’s taken “from his property forcibly or immediate person .9 Code, (Pen. 211.) (3) That conclusion presence.” was sound For pur § of aider-abettor poses the commission of a so liability, continues robbery as the taken is long carried to a property being away place temporary 1158, (1991) v. safety. (People Cooper Cal.3d 1169-1170 Cal.Rptr. 450, 811 742].) P.2d “The act of when the ‘taking’ begins separation (4) occurs, the victim from his or her and it the property continues through forcible (Webster, consummation.” 442.) 54 Cal.3d at As below, the prosecutor the time defendant argued and directly knowingly involved Atherton, himself in the and kidnapping victim had robbery not been from his nor separated had the been property, carried property away Indeed, to a place temporary safety. commission of the robbery ongoing throughout period which all during were accom takings four because plished the victim was still held being with his car and captive along other stolen (See that time. property during People Stankewitz 72, Cal.3d 23]; Cal.Rptr. 793 P.2d Fields Cal.3d Cal.Rptr. 680].) 673 P.2d then, In summary the evidence established at a minimum that Maple, F., Valdez P. Frank took forcibly personal property person from (car car, the victim wallet) accosted, beat, keys, when first they and abducted him in his own car. These as a matter of takings law satisfied the require- ment for the victim’s be taken property his or person immediate found, presence. Court of so Appeal nothing presented argued defense at trial undermines this Defendant conclusion. shared aider-abettor for the liability forcible and unlawful which constituted takings what’s doing Valdez with the person [F.] wallet? That’s the the defendant said him handed Why wallet. money wallet, there still in the If guys wallet? one of those took the the first thing done, they just defendant, would have like money is take the out of the wallet and put pocket.” their 9 Inconcluding law,” that an charged element of a offense is established “as a matter of we do not mean to intimate that when requisite one or more of overwhelmingly elements are evidence, established need not find such elements satisfied in order to convict the defendant of Contrary the offense. concurring dissenting opinion of Justice Kennard, we do not high read the pertinent court’s going decisions to date as so far as to *14 suggest that where “the elements of were by undisputed established facts. . . it is of significance no constitutional jury may that ... have relied to some extent on the erroneous reaching guilty (Cone. instruction in its robbery charge.” verdict on the opn. & dis. Kennard, J., post, 453.) at p. Rather, takings directly concluding person Atherton’s were established “as from law,” a matter of we simply are determining the evidence introduced on the element—e.g., Frank P.’s testimony that he personally keys removed the car and a car alarm “beeper” attack, from pocket during Atherton’s testimony the initial which went uncontro- by verted and, defense at plainly trial—was support taking requirement sufficient hence, the jury’s robbery verdict. at which he became directly to and robbery up through point
an ongoing crime, contested at trial but is no longer in the a matter that was involved review of the Court of Appeal’s judgment. issue our the victim’s and home The takings office from office and home must be analyzed of items from Atherton’s takings those somewhat The items of removed from premises differently. property Instead, it was victim’s were not taken from the obviously directly “person.” “im- taken from Atherton’s were theory they prosecution’s within mediate presence.” vehicle restrained in a
In each instance Atherton was being forcibly home, of, then his while the premises outside first his office complex, parked Atherton, blindfolded and hand- looted. the “office During takings,” were cuffed, the office in his Mazda in the lot of parking was being guarded and 80 feet from a 35 feet from his office building, complex approximately entered and looted. Access which the building group subsequently second from from the taken earlier key ring was buildings gained using keys these “house takings,” Frank P. During subsequent Atherton’s person handcuffed, Atherton, blindfolded in the stolen was restrained being still block” on which “around the comer of the same which was Mercury parked using Once access to the home was gained his home was located. again, during removed earlier from the victim’s person from the key key ring items were suitcases” full of initial forcible abduction. “Two or three firearms, vehicles, to the including removed from Atherton’s residence ammunition, safe which ATM cards from Atherton’s leather jackets, defendant retained his possession. during Atherton was detained being forcibly
The circumstance that from were seized being office and home while items of his takings, property above, of him indicated his home and office at the distances from premises were these takings to the of whether significance question particular legal circumstances, it Under these his “immediate accomplished presence.” force, and the that but for the use of blindfolding, handcuffing, can said office com- building Atherton’s relative to his ensuing captivity, proximity block”) (35 feet) (“around the comer of the same and home plex control of to retain “would have allowed him to take effective physical steps it.” from stealing his and to defendant and his prevent property, companions mile away lured (Webster, one-quarter 54 Cal.3d at [victim car; his killed him and then stole from his car robbers who attacked and “ satisfied].) or device by found ‘The trick “immediate presence” requirement property detached which the physical presence [victim]
423
and control should not avail defendant in his claim
under his [possession]
was not taken from
“immediate
property
presence”
”
in
(Webster,
victim.’
54 Cal.3d at
italics
supra,
original,
p.
quoting
439];
(1934)
v. Lavender
P.2d
see also
People
137
591
Cal.App.
v. Ramos
In this the facts of the case are regard, fundamentally present from those we faced in distinguishable Hayes, Cal.3d 577. In supra, victim, a motel was murdered in Hayes, a motel room a manager, distance of 107 feet from his from which was office/living quarters property thereafter stolen. Since the victim was murdered first and then his office/ looted, were living quarters as to whether the were inquiry “takings” from his “immediate a limited one. necessarily By defendant’s own in he testimony, which taking activity participated10 occurred after the “overt that could been killing; only acts” have per ceived the victim were those associated with the 22 fatal stab wounds facts, inflicted him. Given those our upon Hayes focus was on the primary Miramon-Brown, possibility that the misinstructed jury, under might improp find the immediate erly satisfied the victim’s presence requirement him, of the force perception inflicted upon thereby rendering “taking” requirement redundant with the “force or fear” As for the requirement. significance the 107-foot distance we said Hayes, only “[u]nder circumstances, these a reasonable finder of fact could conclude either that was not so distant as property the victim’s control and beyond or that protection, it was too distant to inbe the victim’s immediate presence at the time the 629.) force was used.” (Hayes, 52 Cal.3d at
Here, in contrast to Atherton Hayes, was alive and detained being forcibly throughout which the office period during and house were takings accomplished. “[N]othing Hayes that criminals suggests may escape robbery convictions simply by luring their victim far from the enough away to make his control property more difficult or the of force or fear application (Webster, facts, more 441.) convenient.” 54 Cal.3d at Under these defendant cannot be heard to argue, that Atherton legal standpoint, self-defense, 10 Hayes manager claimed he killed the motel and that thereafter another resident, James, motel plan property initiated the to remove manager’s items of from the living office and quarters. Hayes merely carrying away. asserted he assisted James in the loot (Hayes, supra, 599-601.) Cal.3d at *16 424 home,
was too far removed from his office and
when the
those
takings
were
to take effective
to retain con-
accomplished,
physical steps
premises
defendant and his
from stealing
trol of his property
prevent
companions
440-442;
Ramos,
(Webster,
54
v.
30
it.
Cal.3d at
supra,
pp.
People
supra,
553;
Lavender,
591;
v.
Cal.3d
137
People
supra,
Cal.App.
People
Gordon,
519;
15
(1993)
136
see also
v. Prieto
supra,
Cal.App.3d
that,
210,
761].)
given
214
We conclude
Cal.Rptr.2d
Cal.App.4th
[18
feet,”
facts,
(“35
80
distances involved in the office and home
takings
law,
not,
block”)
violate
the comer of the same
do
as a matter
and “around
we
for California
immediate
defining
presence
adopted
the standards
Webster,
(See also
Thus far we have
how
explained
a matter
law did not
of the
as
robbery charge
the prosecution
support
we
“immediate
which
the current standards defining
violate
why,
to instruction an element of the Rose v. Clark misstating 460, 478 U.S. 106 S.Ct. error standard 570 L.Ed.2d [harmless [92 3101] to erroneous cf. applied containing burden-shifting instruction presumption]; 1048, 867, v. People (1993) 6 Cal.4th 1089 864 Berryman Cal.Rptr.2d [25 Mosk, P.2d J.) erroneous omission of the element of (maj. 40] opn. [“The intent to kill not is felony-murder special-circumstance [from instruction] reversible but rather is to harmless-error under automatically subject analysis the ‘reasonable doubt’ standard for federal constitutional error laid down Odle, 414-415.) [Chapman].”]; v. 45 Cal.3d at People supra, pp. 432, (1991)
Most in Yates v. Evatt 500 U.S. L.Ed.2d recently, 391 [114 (Yates), 111 S.Ct. the United States Court on the elaborated Supreme 1884] nature of the court must undertake in inquiry reviewing applying cases, one, harmless-error standard to such as this where the Chapman jury has been misinstructed on some element of the offense. an aspect charged note, Green, We that when this court decided 27 parenthetically, 1, 577, Cal.3d 52 Cal.3d we did not have the benefit of the Hayes, supra, court’s decision in Yates. high
Yates involved misinstruction on the element of malice in a murder case.
The
was
instructed
jury
that the
element of malice
erroneously
requisite
could be established based on either of two
that
mandatory presumptions:
“
”
“
malice,
‘willful,
‘use of a
establishes
deadly weapon’
and that the
”
deliberate, and intentional
of an unlawful act’
doing
the same
operates
(Yates,
way.
441].)
Although
present
involve misinstruction of the
with
a mandatory
court’s
presumption,
high
discussion of
harmless
Chapman
error review in Yates is nonetheless instructive on the
that
prejudice analysis
must be undertaken here.12
following
Yates
quoted passage
sheds
light
to be
analysis
performed
assessing
prejudicial
under
impact
Chapman
instructional error on the elements of an offense:
not,
“To
that an error did
say
not ‘contribute’ to the
verdict
ensuing
course, to
say
unaware of
feature of
trial
totally
12 Inat least one prior case we have invoked the rationale of Yates to find instructional error
analogous
beyond
misinstruction
on the elements of an offense harmless
a reasonable
(See
People
1,
v. Johnson
(1993)
593,
doubt.
Cal.Rptr.2d
6 Cal.4th
859 P.2d
673]
necessary
felony-murder
[failure
instruct on the
special
intent-to-kill
element of the
circumstance
in a
period”
involving
felony
“window
case
murder committed between the
Superior
of Carlos 79,
filing
(1983)
Court
Cal.Rptr.
later court reviewing presumption, an unconstitutional apply instructed a it, a conclusion that would failed to consider infer that jurors can hardly cases, run counter to a sound in most and would untenable factually and generally are reasonable jurors appellate practice, presumption Marsh, U.S. are See Richardson the instructions they given. follow are (‘The rule that juries 107 S.Ct. one, in the rooted less is a to follow their instructions pragmatic presumed *18 that than in the belief is true absolute certitude that the presumption of the state of the interests a reasonable accommodation practical represents defendant’). the is, rather, to find contribute to the verdict an error did not “To say the considered on else the everything jury in relation to error unimportant Thus, to to that an instruction say in the record. as revealed question, issue in to to the verdict is did not contribute presumption an unconstitutional apply reasonable significance presumption a about the judgment make those jurors evidence considered measured the other against when jurors, the presumption. independently of distinct take two a court must quite such a judgment,
“Before reaching in considered First, actually ask what evidence the jury it must steps. If, necessary is the fact presumed its verdict. for example, reaching verdict, evidence the jury must ask what court reviewing support Did the that fact. omitted.] or disprove [Fn. considered as tending prove facts, bearing other evidence or did it consider look at only predicate a court this In answering question, the fact to the on subject presumption? The answer minds. into the jurors’ a subjective enquiry does not conduct to the come, instead, jurors of the instructions given from analysis must instruc- follow that jurors of that customary presumption from application in and, evidence on point consider relevant that they tions specifically, do so. told that they may issue when are they considered by the evidence first into court has made the enquiry “Once a as against of that evidence force it must then weigh probative the jury, Chapman’s To satisfy alone. standing force presumption probative considered standard, that the jury not be enough it will reasonable doubt reliance without come to the verdict which it could have evidence from whether the Rather, is issue under Chapman the presumption. fact beyond establishing presumed verdict on evidence rested its actually that enquiry Since doubt, of the presumption. a reasonable independently minds, byit must approach a court one into the subjective jurors’ be a cannot considered the evidence presumably whether asking force of leave it beyond as to overwhelming sois with the instructions accordance have been the evidence would on that resting the verdict doubt that reasonable 500 U.S. at (Yates, pp. supra, the presumption” the absence same 448-449], added.) italics L.Ed.2d at 403-405 [114 review firmly of Chapman principles With these fundamental dissenting concurring Mosk’s mind, of Justice in the rationale the error reliance on misplaces principal That opinion becomes apparent. opinion Louisiana, U.S--[124 Sullivan v. decision in court’s recent high of Sullivan (Sullivan). holding The specific 113 S.Ct. L.Ed.2d doubt instruction deficient reasonable constitutionally of a giving (Sullivan, supra, analysis. under a Chapman can never be deemed harmless _ 187-192, 2080-2083].) 113 S.Ct. at pp. at pp. 508 U.S. court, Scalia, conclusion, did have for writing In this Justice reaching standard, and then Chapman occasion to first reiterate the time-honored Yates, 500 U.S. the court’s earlier holding briefly paraphrase *19 (Sullivan, decision. own of that in a manner consistent with our reading fully _ 189-190, 2081].) at 113 S.Ct. p. 508 U.S. at L.Ed.2d at pp. supra, p. error such harmless on to of “illogic” Sullivan goes explain applying a constitutionally has been given review to case in which deficient L.Ed.2d (Sullivan, 508 U.S. at p— reasonable doubt instruction. supra, because, case, 189-190, in such a 2082].) so at 113 S.Ct. at That is p. Amendment” of the Sixth meaning “there has been no verdict within the “the and for that reason question of “guilty-beyond-a-reasonable-doubt,” would have whether the same verdict guilty-beyond-a-reasonable-doubt (Ibid., meaningless.” absent the constitutional error is utterly been rendered italics in original.) [supra, that: “In Fulminante
The Sullivan court observed
v.]
[Arizona
hand,
between,
1246,]
on the one
we distinguished
L.Ed.2d
S.Ct.
mechanism, which defy
‘structural defects in the constitution
the trial
hand,
standards,’ and,
trial errors
on the other
“harmless-error”
analysis by
which
case to the
and
may
which occur
of the
‘during
jury,
presentation
of other evidence present-
therefore be
assessed in the context
quantitatively
Fulminante,
302,
There was no defective reasonable doubt instruction constitutionally given bearing in the case. The in Sullivan thus has no direct precise holding present hand; “imme- on the at did the Miramon-Brown misinstruction on question diate verdicts under presence” prejudice robbery robbery-related Chapman test? As Chief Justice observed in his concur- Rehnquist separate “I the Court’s ring opinion Sullivan: characterizing holding accept conclusion is a that a deficient reasonable-doubt instruction constitutionally breed other apart instructional errors that we have held are many amenable harmless-error (Sullivan, 508 U.S. at analysis.” p._ 2084], (cone. L.Ed.2d at S.Ct. italics in original opn. J.) Rehnquist, C. other errors instructional [citing, among examples review, which are subject to harmless error an misstating “instruction[s] offense,” Illinois, element of the with citation to 481 U.S. Pope 497].) The error under review in Sullivan is “breed from the apart” reason, Miramon-Brown instructional error we face in this case. For this Justice Mosk’s fear our this case is inconsistent apparent opinion with, to, Sullivan, and unfaithful court’s high opinion simply unfounded.
Justice Mosk’s of the an court must understanding analysis appellate undertake in review of misinstruction on an element of conducting Chapman an offense is also at odds with the Yates. His holding concurring that “to court’s instructional dissenting opinion suggests say superior crime misdefinition of the ‘immediate element presence’ *20 did not contribute to the verdict is to make a about the judgment significance of the instructional misdefinition to reasonable when considered jurors, (Cone. the other and instructions.” & against dis. pertinent, proper, opn. Mosk, J., 443.) at post, But that is of our under the p. only part inquiry Yates; mandate of and we Chapman must look to the evidence ultimately considered defendant’s under the instructions in the by jury given assessing or harmless nature of the error. Justice Mosk prejudicial impact appears otherwise, conclude that we should the record implying virtually ignore task, evidence as irrelevant to our and largely concluding expressly as to whether the rendered its actual verdict” without finding jury “actually misinstruction reliance on the Miramon-Brown must turn on “whether the record, other instructions are so on the pertinent proper implicated theories, the evidence and as to a conclusion including parties’ compel a reasonable doubt that must have made the instructional beyond they (Id. misdefinition 443-444.) at This conclusion—that superfluous.” pp. “[i]t if the instructional misdefinition minimal in com- only importance [is] to the other instructions that it can be held not to pared pertinent proper (id. 444)—does have contributed to the at verdict” not charac- p. accurately Yates, terize the in to be undertaken here. As prejudice analysis explained determined, beyond we must whether can be Chapman inquire under doubt, on evidence estab- rested its verdict jury actually reasonable element of of the force independently the lishing requisite “taking” (Yates, 500 U.S. at p. of the Miramon-Brown misinstruction. 449.)13 at p.
L.Ed.2d noted, in a on involved misinstruction murder case As Yates previously malice, the the trial told having erroneously element of court requisite mandatory the element established based on of two could be either in both of fact were The Supreme which unconstitutional. presumptions, Yates, therefore, Court’s task in was to determine effect of the erroneous malice. mandatory finding verdict presumptions jury’s impliedly First, the court would light determined that all the instructions (Yates, have considered all the relevant 500 U.S. evidence malice. Then, 452].) at at itself to all the looking 408-409 L.Ed.2d pp. evidence, relevant concluded the record did not evidentiary court clearly malice; establish court was infer hence the unable to reasonable beyond doubt that the did not contribute to the mandatory presumptions jury’s (Id. 452].) verdict. at 409-410 Here, contrast, did the trial court’s misinstruction not implicate entirety definition of the element “taking” robbery—instead of two misinstructed on one factual theories which that possible satisfied, i.e., element could be of a from the victim’s taking theory immediate No error in connection presence. instructional occurred with the alternate which element of theory by could satisfied—the taking of a theory victim’s directly person. mind,
With this we distinction turn again language Yates that must this guide say court: “To that an error did not ‘contribute’ to the concurring dissenting opinion 13 The particulars. of Justice several other Mosk errs *21 example, “Manifestly, People’s robbery] required For it is stated the theory that: resort to [of the instructional presence’ sought every misdefinition of the ‘immediate It to reach element. taking every by item any partners. only either defendant himself or It could do so of his presence’ because ‘immediate as which the was the area within victim could misdefined sense, by perceive, some offense—including some ‘overt act’ connected the with the area within which he speak could hear and/or of his about the partners defendant matter.” (Conc. Mosk, J., post, 445.) opn.of p. passage & dis. at If what this is the is meant that prosecution, prove posture in order to commission a of the case as it under the was takings presented to the jury, valid required was to establish under “taking" each of the four noted, revisiting unanimity redeciding theories then the dissent is the issue and instruction in defendant’s favor. of Appeal aptly recognized, directly As the Court below that issue is not remand, us in appeal. before this On it can be conjunction considered in with other issues that (See post, Miramon-Brown light were not reached in for of the reversal error. instructional at 14.) p. fin. verdict,” stated, was court is not to “the unaware say jury totally the high (Yates, later have been feature of the trial held to erroneous.” that Here, course, the 448-449].) jury U.S. at L.Ed.2d at p. pp. concerning of the of counsel was aware evidence certainly arguments only but would have been from Atherton’s person, those that not takings the to his “To error did not contribute from immediate an presence. say verdict,” rather, in continued, “is, that error unimportant the court to find as to else considered on the issue in question, relation the everything (Ibid., added.) revealed the record.” italics Yates, indicated, Here, issue the the “issue in was malice. In as question” immediate not whether the were from Atherton’s takings is question rather, issue is there was a taking— the whether presence; question simply to or from his immediate either Atherton’s person presence—sufficient Yates, “to robbery. say the for taking requirement Paraphrasing satisfy [here, theory the facts to one necessary an instruction misdefining support to make an did not contribute to the verdict is establishing element] to jurors, about the of the reasonable judgment significance [instruction] inde- when evidence those jurors measured other considered against which the instruction applied].” to erroneous pendently [evidence 449-450].) (Yates, Continuing, U.S. at L.Ed.2d at pp. 404 [114 here, stated, “If, [or, for fact high example, presumed court to is necessary factual which the was concerning misinstructed] theory verdict, the jury court must ask what evidence support reviewing (Id. that fact.” at considered as tending prove disprove 449-450], Then, omitted.) in a footnote at this point, fn. for the “If the fact is not itself necessary court admonished: presumed verdict, necessary but of a of facts prove one sufficient only variety element, consid- not the evidence only court should reviewing identify for but also the evidence subject ered for the fact to the presumption, (500 U.S. fh. 9 the element.” at p. alternative facts sufficient to prove 449].) L.Ed.2d at p. here, caveat, view, Here as it was not in Yates. The latter our is relevant for necessary misinstructed is “not itself on which theory rather, verdict”; immediate of a from Atherton’s theory the necessary one of a of facts sufficient prove” “only variety presence element taking. In theories taking. partic-
The trial court instructed the both jurors *22 ular, is the felonious taking personal was told that “[r]obbery jury another, or immediate pres- his person the possession property from will, (Italics ence, force fear.” his means accomplished by against
431
added;
are directed in Yates to
9.40.) We
CALJIC
see
No.
apply
and,
follow instructions
that
“customary
jurors
presumption
specifically,
consider relevant evidence on a
in issue when
are told that
they
point
they
(Yates,
449].)
supra,
do so.”
The United States Court has admonished armless-error Supreme “[h] that, addresses . . . what is to be done about a trial error theory, analysis case, but in have altered the basis on which the practice may decided the Clark, (Rose had no clearly on the outcome.” supra, v. 478 U.S. at p. effect 473], added.) fn. 11 L.Ed.2d at italics Because the force of the p. wallet, and automobile were taken evidence Atherton’s car showing keys, Yates, his directly person supra, (see 500 U.S. at “overwhelming” p. 449-450]), L.Ed.2d at the conclusion is pp. inescapable evidence, as Yates is “of such force requires, as to show compelling beyond a reasonable doubt” that the erroneous instruction “must have made no (Yates, difference in the verdict obtained.” supra, reaching U.S. 451-452].)14 L.Ed.2d at pp. 14 Itmust be borne guilty single in mind that in order for the to return a verdict on the robbery charged, only count of required unanimously agree beyond it was to a reasonable doubt that the support finding robbery evidence established a sufficient that a had been committed. This is not multiple robbery being a case in which convictions of were sought for prosecution’s “taking prevail each of the theories.” Defendant did not on his request unanimity for a single robbery instruction directed to the count. Because the Court of Green, Appeal reversed the robbery-related verdicts under 27 Cal.3d that court found unnecessary remaining appeal, including resolve defendant’s claims on the claim that the trial refusing court erred in the instruction. remand, purposes guidance For unanimity we observe that instruction is not “[t]he required alleged when the closely acts are so part connected as to form of one transaction.” Stankewitz, (People defendant, 100.) assuming through Cal.3d Even argument jury, acts, of counsel to suggests differing alleged defenses to each of the still it must be any determined whether there is distinguish “reasonable for the basis” between them determining (Ibid.) whether the “continuous applies. conduct” rule Here, ongoing there was an forcible restraint throughout two-day of the victim his up ordeal until his particular, being murder. In captive along throughout he was held with his stolen car period during takings which the office and home accomplished. (People were v. Stanke- witz, supra, 101.) takings nature; Cal.3d at were compounding successive and none of personal the items of property taken from Atherton’s home and office were “carried away place to a temporary safety” completion looting until well after of those premises. (People Cooper, supra, 1169-1170.) 53 Cal.3d at may question We therefore whether “reasonable legally distinguish basis” was available to “taking between the four purposes establishing theories” for single robbery charged. count of The successive takings arguably conduct,” “continuing reflected a objective course of the central of which
IV That of the of of reversing robbery, the Court the judgment portion Appeal In for and first murder is reversed. convictions kidnapping robbery, degree affirmed, all the other the and the matter remanded to respects judgment Court of for further consistent with this opinion. Appeal proceedings
Arabian, J., Baxter, J.,
J.,
J.,
and
concurred.
George,
Werdegar,
and Dissenting.
concur
as
MOSK, J.,
in the
insofar
Concurring
judgment
I
Court
the
the
it affirms the
affirming
judgment
judgment
Appeal
crimes.
defendant of numerous
court
superior
convicting
dissent, however,
I
the
insofar
it reverses the
judgment
judgment
of the Court of
the
the
court convict
Appeal reversing
superior
judgment
the
of the crimes of murder in the first
robbery
defendant
ing
degree,
I
second
and
for
As
shall
explain,
robbery
degree,
kidnapping
robbery.
must be
court erred under both
conviction
reversed because
superior
States
the element
misdefining
California law
the United
Constitution by
in its
to the
With
fall
robbery
of “immediate
instructions
jury.
thereto,
are
the former
robbery,
murder and
for
which
related
kidnapping
the error
colleagues recognize
the doctrine of
murder.
through
felony
My
federal
its
As for the
But
refuse to
robbery.
they
acknowledge
reversibility.
Constitution,
States
hard to
such decisions of
United
strive
avoid
they
U.S._[124
(1993)
L.Ed.2d
Court as Sullivan Louisiana
Supreme
182,
Sullivan), Yates v. Evatt
(hereafter
113 S.Ct.
sometimes
2078]
(hereafter
L.Ed.2d
111 S.Ct.
sometimes
I had In court that its instructed charge, superior crime doubt before they all the elements of a reasonable prove beyond were entitled to a verdict of guilty. located, forcibly property might be while rob Atherton all of his wherever him for the
restraining transporting in his to the various locations him own vehicle Indeed, prosecutor indicated on purpose assisting group objective. in that record, instruction, one unanimity only rejected requested at the time trial court multiple punish- charged largely anticipation in this count of had been case Code section 654. proscriptions ments under the Penal would unattainable
433 accused, of stood As to the crime of which defendant robbery, superior court instructed as follows: another, takes in the of
“Every personal who person property possession of against the will and from the or immediate that person, person presence of force or with the intent accomplished permanently means fear by specific of of robbery such such of the crime deprive property guilty person violation of section Penal Code 211. crime,
“In order to such each of the must elements prove following proved:
“One, value, had of however possession some person property slight;
“Two, such was taken such his or from immediate property person presence;
“Three, such was taken the will of such property against person; “Four, force, violence, was either fear or taking accomplished intimidation;
“And, five, such was with the property taken intent specific perma- such of the nently deprive person property.”
In (1989) with decisions v. Brown conformity including People (hereafter Cal.App.3d Brown), and People v. Cal.Rptr. 262] Miramon (1983) (hereafter Cal.App.3d Cal.Rptr. Miramon), the court defined the “immediate element superior as presence” follows:
“The act of is deemed to occurred have within immediate of a so victim as the presence victim overt act connected long perceived any with the commission the offense. and all of the Any sensory perceptions of the victim are to be considered in determining presence.” instructions, these
Supporting the evidence adduced revealed at trial defendant could be found as either a possibly direct guilty robbery, abetter, or an perpetrator aider to the four regard with items or of items of groups (1) personal the victim: victim’s property belonging contents; (2) contents; automobile and/or its the victim’s wallet and/or its office; certain of the victim’s at his certain possessions and/or victim’s at his possessions residence. at trial was that defendant guilty theory presented an aider without as either a direct robbery, specification, perpetrator the basis of or all of or all of the items. takings any
and abettor on element, “immediate “immediate to the embraced presence” theory As sense, within which the victim could some the area perceive, by *25 reason this: evidently “overt act” connected with the offense. The was some “imme- of the of some of the items the takings might satisfy some although as from the victim’s most—as the prose- diate element “person,” presence” the “immediate himself conceded—could do so as from victim’s only cutor least been as defined above. All the of all the items had at takings the his within of defendant and/or one more of partners spoken victim’s hearing. the of taking
In accordance with this the as to argued theory, prosecutor taken victim’s at office: the items that were the his “What about possessions the They from business? weren’t taken They person. [the victim’s] from weren’t his wasn’t in taken immediate He actual presence. possession, from but he had of of Taken from constructive those items possession property. overt acts his immediate because he was able to several perceive presence was in front associated the When he out taking property. sitting with that of he of must have heard clearly of house one defendant’s partners], [the] [of business, the the them about to the business. On to talking going way back was him Once the one of defendant’s asking questions. partners] [another business, of there was a in time when former point partners]—and [the is is . . . this before asked any property taken—specifically [the victim] I ladies and that he had come out of. to building suggest you, about [¶] of the taking these overt associated with the commission acts gentlemen, made the of that within of that property taking property [the victim’s] law, immediate was out though defined even presence [the victim] (Italics added.) car at in the the time the items were taken.” as to the of victim’s prosecutor taking posses argued similarly his to of the law sions at residence: “We about discuss application [are] house. items that were—from robbery taking victim’s] [the that the items And we that in the context of the rule doing requiring [¶] [are] means be taken from his immediate presence immediate presence. Again, an within a immediate robbery presence where act of committed person’s the connec when as as the victim an overt act associated with long perceives on the the focus is overt again tion So [m'c: commission] [¶] offense. from taking What do we with respect property acts. overt acts have Well, about the house? at the business they questioned [him] [the victim’s] him he had at location of his home. about his They property questioned house, knew he taken his house and he was fact He being [¶] over to the house. . . . While at his way forced to directions on the give [¶] house, from about five away, around the comer his house houses or parked from comes back and demands information defendant’s partners] [one house, him his overt that he knows to be in These property concerning [¶] acts robbery.” make the house a property victim’s] [the (Italics added.) deliberations,
After guilty rendered a verdict defendant finding and, direction, at the second. fixing court’s at the superior degree
II
A *26 In its instructional definition of the “immediate delivering presence” element of the crime of the erred court under California robbery, superior law.
In
People Hayes
Insofar as under Califor- was erroneous crime of robbery element of the ate presence" *27 law, on that basis. reversal nia it requires instead subject se but per not reversible here is apparently
The error under Guitón. error analysis harmless for what is the standard Guitón, addressed the broad question,
In
we
conviction,
theories
with alternate
is
presented
when
prejudice
more)
is not?
(or
of which
and one
more) of which is erroneous
(or
one
considered,
v.
answer,
(People
and “harmonized”
at an
we
In arriving
v. Green
Guiton,
1121),
our earlier decision
4 Cal.4th at p.
supra,
Green)
(hereafter
and the
609 P.2d
Cal.3d 1
Cal.Rptr.
468]
v. United States
later decision
Court’s
States Supreme
United
Griffin
(hereafter Griffin).
112 S.Ct.
By “properly Guiton, 1121), Cal.4th at when a erroneous (People legally though conviction is to the when the theory presented jury—i.e., theory, evidence, not supported by theory, is consistent with the law or when law, evi though consistent with the is not sufficient supported by legally unless, trial, on reviewing dence—reversal is the record made at required court can on a determine that the conviction if not rests actually, solely, 1126-1131). (id. legally proper theory pp.
The error here amounts to the of a presentation legally erroneous of conviction in the theory sense that was not consistent theory with law. As the instruction in explained, misdefined the question “immediate element of presence” robbery. because, trial, is
Reversal on the record made at we cannot required determine that defendant’s conviction if not on rests actually, solely, There is legally proper theory. in the evidence or the simply nothing or arguments the instructions that establishes even that the suggests verdict based the “immediate element defined. properly Indeed, what there is indicates that the verdict clearly on the depends 444-445, (See misdefinition. More on that in due course. post.) C
Both the majority Justice Kennard in concurring her and dissenting opinion agree court’s instructional misdefinition superior “immediate presence” element of the crime of erroneous robbery was under California law.
Justice Kennard does not on to go consider the of question reversibility that basis. do,
The majority answer the are all but negative. They wrong. They Guiton, ignore it a relegating to footnote. More passing significant, they rule, altogether the Green as ignore (People construed” Guiton. “properly Guiton, v. supra, 1121.) Instead, Cal.4th at p. take a tortuous detour they Green’s through facts conclude peculiar that its does not reasoning require reversal. In so doing, they set merely and knock straw man. That up down a is to say, they the proceed though a jury here had been with presented erroneous of legally conviction theory in the sense a that was not theory of supported by legally evidence. That is the case. As not simply sufficient the explained, with a presented of erroneous convic legally theory the tion in sense a theory that was not consistent with law.
III A its definition “immediate In instructional delivering element of the crime of court erred under the United robbery, superior (See States Constitution as well as California law. the result. Hayes compels 628-629.) Hayes, v. 52 Cal.3d at supra, pp. Fourteenth to the The due clause of the Amendment United States process that, conviction, obtain a valid state requires may Constitution before crime, and must element of a must do so reasonable every beyond prove Louisiana, Sullivan at doubt. 508 U.S. (E.g., pp._-_[124 187-188, 189-190, 2080-2081, 2082].) 113 S.Ct. L.Ed.2d at pp. pp. criminal in a state trial It follows instructions omitting of a element crime reasonable doubt proof beyond requirement every Amendment’s (See under the due clause. are erroneous Fourteenth process 307, 320, 443 U.S. fn. 14 Virginia Jackson 2781].) 99 S.Ct. merely beyond-a-reason- similar instructions
Evidently,
misdefining
are also
standard
its threshold
erroneous
by
lowering
able-doubt
effectively
(Sullivan
Fourteenth Amendment’s due
clause.
v. Louisi-
process
under the
ana,
187-188,
508 U.S. at
L.Ed.2d at
S.Ct. at
pp._-_[124
pp.
2080-2081].)
Amendment,”
all crim-
“The Sixth
Sullivan explains, “provides
‘[i]n
to a
inal
accused shall enjoy
right
speedy
public
prosecutions,
trial,
this
right
an
found
trial impartial jury.
[W]e [have]
American scheme of
criminal
to be
to the
serious
cases
‘fundamental
includes,
right
and therefore
in state
justice,’
proceedings.
applicable
course,
element, the
rather than
as its most
to have
important
right
jury,
Thus,
although
reach the
requisite finding
‘guilty.’
judge,
[Citation.]
evidence is
direct a verdict for the defendant if the
legally
may
judge
State,
not
for
no
to establish
he
direct a verdict
may
insufficient
guilt,
evidence.
matter how
overwhelming
[Citations.]
a verdict
“What the factfinder must determine
return
guilty
*29
bears the burden of
the Due Process Clause.
prosecution
prescribed by
[citations],
must
of
charged,
persuade
all elements
the offense
proving
necessary
of
establish
a reasonable doubt’
the facts
‘beyond
the factfinder
elements,
This beyond-a-reasonable-doubt require-
of those
each
[citations].
ment,
jurisdictions,
which was adhered to
all common-law
by virtually
as well
in state
as federal proceedings.
applies
[Citation.]
self-evident,
think,
we
that the
Amendment requirement
is
“It
[Fourteenth]
the
reasonable doubt and
Sixth Amendment requirement
of
a
proof beyond
Amendment
of
It would not
the Sixth
satisfy
a
verdict are interrelated.
jury
leave
is
and then
probably
have a
determine that the defendant
jury
guilty,
the
.
.
he
a reasonable
to determine
. whether
is
up
guilty beyond
judge
words,
the
doubt. In other
the
verdict
Sixth Amendment
required
jury
a
verdict
a
. . .
instruction
jury
of
reasonable doubt.
guilty beyond
[A]n
its
doubt
[misdefining proof
lowering
a reasonable
beyond
by effectively
Louisiana,
(Sullivan
. . .
a
does not
such
verdict.”
produce
threshold]
187-188,
Likewise, instructions a state criminal trial the jury omitting require- ment of a reasonable doubt of element a crime are proof beyond every of (Rael erroneous under the Fourteenth process Amendment’s due clause. 874, 875; (10th 1990) 1987) (7th Sullivan Cir. F.2d Cole v. Cir. Young 412, 423-426; (9th 1994) U.S. v. Cir. F.2d cf. Gaudin F.3d (in criminal bank) instructions in a federal 945-947 trial [holding jury the of of proof reasonable doubt omitting requirement beyond every element of a crime are erroneous under Fifth due the Amendment’s process clause].) Sullivan,
Under the of reasoning similar instructions merely misdefining an element of a crime by effectively its are also expanding scope erroneous under the due stated, clause process Fourteenth Amendment. As includes, core, Sixth Amendment right to trial by as its jury right to have rather than the jury, reach judge, To requisite finding “guilty.” determine, reach that must finding, under demand of the due clause, process that the state has proved every element the crime charged, done has so beyond a reasonable doubt. The Fourteenth Amendment requirement proof reasonable beyond doubt of element of every crime and the charged Sixth Amendment of a verdict are requirement interrelated. It would not the Sixth satisfy Amendment to have a jury determine that the defendant is guilty beyond a reasonable doubt of the crime under a charged elements, misdefinition of one or more of its and then leave it to the up to determine judge whether he is a reason- guilty beyond able doubt of the crime under a charged its proper definition of all elements. words, In other verdict required by Sixth Amendment is a jury verdict beyond a reasonable guilty doubt of the crime under charged definition of all proper its elements. An instruction element misdefining by effectively its not expanding scope does produce such a verdict.
It follows foregoing mis- superior court’s instructional element, definition the “immediate presence” which effectively expanded *30 440 under Fourteenth due
its was erroneous Amendment’s process scope, clause.
B fact of error raises the question reversibility. Insofar as the court’s instructional misdefinition of the “immedi- superior ate presence” element of the crime was erroneous under the Constitution, United States it not se per is reversible but instead apparently error under subject (See harmless v. analysis Chapman. People Hayes, 628-629.) 52 Cal.3d at supra, pp. test,” Sullivan,
“The
as
in Yates and
“is whether it
Chapman
explained
a reasonable doubt that the error
of did
complained
not
appears ‘beyond
” (Yates Evatt,
contribute to the verdict obtained.’
v.
500 U.S. at
supra,
pp.
441-442],
402-403
L.Ed.2d at
v.
Chapman
California,
pp.
quoting
[114
accord,
710-711];
at
386 U.S.
24
L.Ed.2d at
Sullivan v.
supra,
p.
pp.
[17
Louisiana,
188-189,
508 U.S. at
at
supra,
L.Ed.2d
113
pp._-_[124
pp.
2081-2082].)
S.Ct. at
“To
that an error did not contribute to the
pp.
say
error
verdict is ...
to find that
in relation to
ensuing
unimportant
every-
else the
considered on the issue in
revealed in the
thing
question,
Evatt,
449];
(Yates
record.”
v.
Thus, the under is what the focus decided and Chapman actually whether the error have tainted its decision. ... may issue whether “[T]he basis, rested its an verdict on” adequate actually “independently Evatt, (Yates the” error. v. U.S. 449].) at L.Ed.2d at supra, p. Stated whether the error had “effect” the . . . verdict differently, “upon Louisiana, (Sullivan in the case at hand.” 508 U.S. at p._[124 188-189, words, 2081].) L.Ed.2d at at in still other pp. S.Ct. Or “whether the . verdict . . rendered this trial unattrib- actually surely (Ibid,., utable to the error.” italics in original.) As a a focus under is not what court consequence, Chapman reviewing if itself might decide looked to the entire record. First, (Sullivan court reviewing is not the decision-maker. proper -
Louisiana, 188-190, 508 U.S. at at pp. L.Ed.2d pp. 2081-2082].) sure, S.Ct. To Rose v. Clark 478 U.S. 460, 471, L.Ed.2d (hereafter Clark) 106 S.Ct. sometimes states that an error is harmless court find that the reviewing can record “[w]here at trial establishes . . .” developed guilt beyond reasonable doubt. More- over, v. Illinois Pope 481 U.S. 502-503 [95
441 446-447, (hereafter Pope), 107 S.Ct. sometimes that quotes language 1918] (albeit Questions about the of Clark with soundness inaccurately) approval. in this were in Justice Scalia’s Pope analysis raised regard 263, in Carella v. 491 U.S. 267-273 concurring opinion California 218, 222-223, Carella). (hereafter L.Ed.2d S.Ct. sometimes [105 109 2419] Clark is were soon resolved. Yates declares that the statement They expressly 402-403, Evatt, (Yates fn. “not. . . correct.” v. 500 U.S. at simply supra, pp. 8 449].) L.Ed.2d at And Sullivan Pope’s p. impliedly disapproves [114 of that as it does Justice Stevens’s dissenting approval language, relying in “The harmless-error doctrine enable a court opinion Pope: to remove may a taint in preserve order to a but it cannot proceedings jury’s findings, Illinois, those v. 481 U.S. constitutionally supplant findings.” supra, (Pope 497, Stevens, (dis. J.) L.Ed.2d at in p. 509 italics opn. original, [95 Louisiana, cited in Sullivan v. 508 at supra, p._[124 U.S. L.Ed.2d at pp. 188-190, 439, terms, course, 2082].) 113 S.Ct. itsBy very Chapman a precludes court from reviewing finding harmlessness based simply “upon ” view evidence.’ ‘overwhelming (Chapman California, supra, [its v. own] 710-711].) 23 U.S. at L.Ed.2d at p. pp. [17 Second, a court is not reviewing entitled consider the automatically entire record. The broad in decisions like Clark “assumption” that “harmlessness of an error is to be after a review the judged entire record” unsound—unless, is, “the jurors, as reasonable would have persons, (Yates Evatt, considered entire . . in . record” of the error. v. spite supra, 500 U.S. at pp. 450].) 405-406 L.Ed.2d at p. [114 is the
Neither
focus under
what
court
con
Chapman
a reviewing
might
jecture
would have decided
in the absence of the
error.
whether,
error,
“hypothetical
if the
inquiry”
had not been
to the
exposed
it
did,
would have made the decision it
“is inconsistent with the harmless-
error standard announced in
.... While
a
Chapman
such
hypothetical
has,
fact,
ensures that the
in
inquiry
state
element in
proved
question]
[the
doubt,
beyond a reasonable
it does not
ensure that has
that element
proved
a
beyond
Evatt,
reasonable doubt to
(Yates
v.
jury.”
satisfaction of
U.S.
supra,
Scalia,
(conc.
J.),
L.Ed.2d at
p. 455]
opn.
accord,
italics in original;
Louisiana,
Sullivan v.
U.S. at
supra, 508
pp__-_
189-190,
at
pp.
Lastly, the focus under
is not what a
Chapman
court
reviewing
might
speculate
“what effect the .
concerning
. . error might
be
generally
expected
Louisiana,
have
(Sullivan
a reasonable
. . . .”
upon
jury
v.
508
supra,
_
U.S. at
2081].) Thus,
L.Ed.2d at
113
p.
p.
S.Ct. at p.
[124
Pope's
concern with what a “rational
or
juror”
not find
the
might might
is beside
Illinois,
v.
point. (Pope
supra,
In whether the determining court’s instructional misdefinition of superior the “immediate element was harmless under we must Chapman, commence our with the analysis declaration of Yates in mind: “To that say an error did not contribute to the verdict is . . .to find that error unimportant in relation to else the everything considered on the issue question, Evatt, revealed in (Yates the record.” U.S. at 449], added; accord, L.Ed.2d at Louisiana, italics Sullivan v. 188-189, U.S. atpp. 2081-2082].) 113 S.Ct. L.Ed.2d at pp. atpp. But how are we to go about assessing “importance” “unimportance” of the instructional misdefinition?
Yates thus with proceeds to an regard instruction incorporating manda- rebuttable tory of an element presumption of a crime. that an say instruction to
“[T]o did apply not presumption [such a] contribute to the verdict is to make a about the judgment of the significance to reasonable presumption when jurors, measured the other evidence against considered those of the jurors independently presumption.
“Before such a a court reaching judgment, must take two distinct quite First, it must steps. ask what evidence the considered in jury actually reaching its verdict. ... In this a court does answering question, not conduct a come, into the subjective minds. The enquiry jurors’ answer must instead, from of the analysis instructions to the given and from jurors of that application that customary follow presumption jurors instructions and, specifically, consider relevant they evidence on a in issue point when are told that they do so. they may a court made first
“Once has into evidence considered enquiry it must then force that evidence as jury, weigh probative against force of alone. To probative satisfy Chapman’s presumption standing standard, doubt not reasonable it will considered enough reliance evidence which could have come to the verdict without Rather, the issue under is whether Chapman presumption. rested its verdict on evidence fact beyond actually establishing presumed doubt, a reasonable Since independently enquiry presumption. minds, cannot be a one into it by a court must subjective jurors’ approach *33 whether the force of the evidence considered asking presumably in accordance with is so the instructions as to leave it overwhelming beyond a reasonable doubt that verdict on that evidence would resting have been Evatt, in the same the absence of the (Yates v. 500 U.S. presumption.” supra, at 449].) 403-405 L.Ed.2d at p. [114
Put
first
is
“whether the
differently,
question
verdict did rest
jury’s
Evatt,
that evidence as
as on
(Yates
well
. . .”
v.
.
presumptio[n]
The second is “whether that such question evidence was of compelling force toas show a reasonable that the beyond doubt must presumptio[n] have words, made no in difference reaching verdict obtained”—in other whether the evidence of the fact made the presumed presumption superflu- (Yates Evatt, ous. supra, 500 U.S. at p. 451].) “It is when only the effect of the is to presumption comparatively minimal said, words, this that it degree can in Chapman’s that the did presumption not contribute to Evatt, the verdict (Yates rendered.” U.S. at 449].) L.Ed.2d at p.
By parity to reasoning, court’s say superior instructional misdefinition of the “immediate element of presence” the crime of robbery did not contribute to the verdict is make a about the judgment significance of the instructional misdefinition reasonable when jurors, considered against the other pertinent, and instructions. We must first proper, objec- determine tively what instructions “immediate relating presence” element actually its We applied verdict. must then reaching objectively assess the instructional misdefinition the other vis-a-vis pertinent instructions their proper relative It is not sufficient that importance. could have rendered the same verdict in the absence of the instruc- Rather, tional misdefinition. it is its necessary jury actually rendered actual verdict without reliance thereon. This turns on whether the other pertinent instructions are proper so on the record toas implicated a conclusion a reasonable doubt that must have made compel beyond they the instructional misdefinition It is if the superfluous. instructional only misdefinition minimal to the other importance compared pertinent instructions that it can be held not to have contributed to the verdict. proper us, On the record before we cannot court’s simply say superior not instructional misdefinition of the “immediate element did to the contribute verdict. determined, the
Objectively instructions to the “immediate relating pres- ence” element that the were jury actually its verdict applied reaching these.
First, there was the instructional statement of the “immediate presence” element itself. It declared that must properly be taken from property “immediate victim’s “person” presence.”
Second, there misdefinition was the instructional of the “immediate pres- ence” element. It defined “immediate as the area erroneously presence” sense, within which the victim could some some “overt act” perceive, by connected with the offense. assessed, the
Objectively instructional misdefinition of the “immediate element was presence” substantial relative vis-á-vis the in- importance structional statement of the element.
The crucial is whether the rendered its actual question jury actually verdict defendant of finding without reliance on the instruc- guilty robbery tional misdefinition of the “immediate element. An affirmative presence” answer cannot be given.
The instructional statement of the “immediate element was not presence” so on the record as to implicated a conclusion compel beyond reasonable doubt that it must have made the instructional misdefinition of the element superfluous.
Recall that the evidence adduced at trial revealed that defendant could be found of as either a direct or possibly guilty an aider robbery, perpetrator abettor, with to the of four items or of regard items groups contents; (1) to the victim: the belonging (2) victim’s automobile and/or its contents; the victim’s wallet and/or its of certain the victim’s possessions office; at his certain of the victim’s at his residence. possessions some of the of some of the Although might items takings satisfy “immediate element as from victim’s most—as the presence” “person,” himself so as conceded—could do victim’s “im- prosecutor only mediate as the area within which he could some presence” perceive, by sense, some “overt act” connected with the offense. All the of all the takings items had at least been of and/or or defendant one more of his spoken by within the victim’s partners hearing.
Recall further that the theory presented trial was that defendant was of without guilty robbery, either direct specification, anor aider and abettor on perpetrator the basis of or all any takings items; that, element, or all “immediate as to any presence" theory embraced “immediate as the area within presence” which the victim sense, perceive, could some some “overt act” connected with the offense. Manifestly, theory to the People’s required resort instructional misdef- inition of the “immediate element. presence” It to reach sought every taking item every by either defendant himself his any It could do partners. so only because “immediate misdefined as area within sense, which the victim could some perceive, by some “overt act” connected with the area within he offense—including which could hear defendant and/or of his partners about the matter. speak
In view of the we foregoing, cannot conclude that the jury actually rendered its actual verdict defendant finding without guilty reliance on instructional misdefinition of the “immediate presence” *35 element. we Surely, cannot hold that the instructional statement element was so on the as to implicated record compel conclusion beyond reasonable doubt that must have made the instructional misdefinition with the superfluous. Consistently evidence and their People’s theory, must have quickly found the easily element satisfied as to every taking item every by either defendant himself of his partners by misdefinition, on the relying instructional which was broad to em- enough all course, brace of all the takings items Of by anyone. with more time effort, individual jurors might have to find proceeded the element satisfied as to one or more individual of one or takings more individual items either defendant by or one of his partners by determining, accordance with statement, the instructional that that item that by perpetrator was from the strictly victim’s “person.” But why?
Since, reasons, for these the instructional misdefinition of the “immediate presence” element cannot be characterized as minimal in com- importance element, pared instructional statement of that it cannot be held not to have contributed to the verdict.
Therefore, the court’s instructional misdefinition of the “imme- superior diate element was reversible error under presence” Chapman.
C court’s instructional misdef- Although majority agree superior “immediate inition of the of the element crime of presence” Constitution, erroneous under the United States conclude that the error they was not reversible under Their does not their Chapman. reasoning support result.
In
to conclude that the instructional misdefinition
part, majority appear
of the “immediate
element was harmless under
because
presence”
Chapman
so,
the evidence was sufficient to
defendant’s conviction. Not
support
“the . . . evidence was sufficient to
does not mean
support
[conviction]”
that “the State has
a reasonable doubt that the error com-
proved ‘beyond
” (Satterwhite
of did not
contribute to
verdict obtained.’
v. Texas
plained
284, 295,
1792].)
486 U.S.
L.Ed.2d
108 S.Ct.
258-259 [100
insufficient,
if the evidence had been
the conviction would be
Obviously,
invalid as violative of the Fourteenth Amendment’s due
clause
process
(Jackson v.
In other
to conclude that the instructional
part,
majority appear
misdefinition of the “immediate
element was harmless under
because,
we,
with Clark and
as a
Chapman
Pope,
conformity
reviewing
court, “can find that the record
at trial establishes
developed
guilt beyond
Clark,
(Rose
reasonable doubt . . . .”
447 Carella, Justice Scalia blocked the that the would majority travel: path “ of an is “not element the offense” curable over isdescription [M] (Carella California, record evidence of v. U.S. whelming guilt.” supra, 491 Scalia, (conc. J.).) at 270 L.Ed.2d at p. p. opn. [105 In still other instructional conclude part, majority appear misdefmition of the element “immediate was harmless under presence” because, adduced, on the evidence have or would Chapman could jury too, have rendered a verdict of the absence of the Here I am guilty error. too, persuaded colleagues assume are as well. But here such views my do not matter. is it
Yates clear that is “not. . . pellucidly considered enough evidence which it have could come to the verdict without reliance (Yates Evatt, 449], the” error. v. at U.S. L.Ed.2d at p. p. added.) italics
And just Sullivan is as clear that it not is “that a would enough surely have guilty beyond [the reasonable doubt” absent the defendant] found (Sullivan Louisiana, error. v. supra, 508 U.S. at L.Ed.2d at p._[124 pp. 189-190, 2082], at S.Ct. p. italics original.) majority imply that we ask question must under Chapman whether the element, evidence on the “immediate bearing properly defined, was “overwhelming.” is not
That
we must or even
question
ask under
If
may
Chapman.
were, an instruction
misdefining
beyond-a-reasonable-doubt standard
would be amenable to harmless error analysis. Sullivan
holds
isit
squarely
(Sullivan Louisiana,
not.
supra, 508 U.S. at
L.Ed.2d at
pp._-_[124
pp.
188-190,
If the error here involved the instructional of an presumption element of crime, we Yates, would inquire, “whether the force quote evidence presumably considered accordance with the instructions is so as to overwhelming leave it beyond a reasonable doubt that the verdict on that evidence resting would have been the same the absence of the Evatt, (Yates presumption.” supra, 500 U.S. at p. at p. 449], added.) italics words, In other “whether that evidence of such force compelling show beyond reasonable doubt that the presump- must have made no difference in (Id. tio[n] the verdict reaching obtained.” 451], words, L.Ed.2d at added.) italics In still other whether *37 the evidence of the fact presumed made the presumption superfluous. But since error here involved the instructional of an misdefinition thereof,
element of a crime and not the we presumption follow the inquire, Yates, whether the other teaching instructions were pertinent proper so on implicated the record as to a conclusion a reasonable compel beyond doubt that must have made the they instructional misdefinition superfluous.
In this case: Was particular the instructional statement the “immediate element so presence” on the record as to implicated a conclusion compel a reasonable doubt that it must beyond have made the instructional misdef- inition of that element superfluous?
As No. with the explained, evidence Consistently and their People’s must theory, jury have found the quickly easily “immediate pres- ence” element satisfied as to every item either taking every by defendant misdefinition, himself or of his on the partners by relying instructional which was broad to embrace all the enough all the items takings by any Individual had no reason to perpetrator. more time and jurors effort expend further to find the element satisfied as to one proceed or more individual of one or more takings individual items either defendant one of his statement, partners accordance with the by determining, instructional that of that item that perpetrator was from the victim’s strictly “person.”
In other yet part, to conclude that the instructional majority appear misdefinition of the “immediate element was harmless under relied instead on Chapman the instructional statement of if element from the victim’s Their “if’ is covering taking crucial. It “person.” Indeed, is also unsupported. reasonable inference is explained, only that the did in fact the instructional misdefinition. rely that, Yates,
It follows
under
the instructional misdefinition of the “imme
diate presence” element cannot be found
in relation to
“unimportant
every
else the
thing
considered on the issue in
as revealed in the
question,
Evatt,
(Yates
record.”
449],
supra, 500 U.S. at
p.
L.Ed.2d at p.
added; accord,
Louisiana,
italics
Sullivan v.
508 U.S. at
pp._-_
188-189, 113
2081-2082].)
S.Ct.
atpp.
[124 L.Ed.2d
Under
atpp.
Chapman,
therefore, the instructional misdefinition cannot be held not to have “con
to the verdict obtained”
a reasonable doubt.”
“beyond
(Chapman
tribut[ed]
v. California,
Although also concurring dissenting opinion agrees court’s instructional superior misdefinition of the “immediate
449 of element of the crime was erroneous under the United Constitution, she too concludes that error not reversible under States 1 Her is indeed but ultimately Chapman. analysis thoughtful, unpersuasive. that, I the view in a situation in which the defendant admitted the share of an not element the crime affected instructional error—which is the case here—the error held harmless under may Chapman. (E.g., perhaps 1, 593, 60-61, (1993) v. 6 Cal.4th 2 Johnson fn. 859 P.2d Cal.Rptr.2d Mosk, (cone. J.).) & dis. of opn. 673]
IBut cannot that an instructional accept error an proposition affecting harmless element of a crime can be held under Chapman if the defendant failed to facts at trial. simply dispute underlying The circumstances with we which are concerned assume that the defend- ant had entered a of not into all plea the facts guilty—which put dispute (see all the all underlying elements the crimes Pen. constituting charged Code, 1019)—and had tried been a was entrusted with the by jury—which § (see resolution of such facts in their entirety People Rowland 238, 377, Cal.4th 897]). 841 P.2d Cal.Rptr.2d Justice Kennard to reason appears thus: defendant’s Sixth Amendment trial right to by jury does not extend to facts underlying an element of trial, crime that he to fails at and hence is not dispute violated an instructional error of such Or facts. somewhat affecting finding phrased A differently: “defendant is to entitled have the jury decide issue [any] [not] of fact material (Conc. to that is guilt” at trial. dis.& “undisputed” opn. Kennard, J., 463.) at I am post, not p. persuaded. outset, disagree 1 Atthe I “determining applying that and the federal harmless error standard (Conc. Kennard, J., 461; like post, opn. case this” is see id. p. & dis. “difficult].” at 452, 456.) at Notwithstanding implication to the there contrary, is no conflict between Sullivan, Yates side, Pope, Rather, and Clark and on the one Yates expressly and on the other. Clark Pope. and Sullivan declares to be incorrect impliedly It is true that in U.S. disapproves Whiting (1st 1296, 1994) Cir. experience F.3d court claimed a similar “difficulty” as to analysis. harmless error only recognize But it did so because failed to effect of Yates and Pope. Sullivan Clark disagree I also we “guidance” that stand in need of Supreme from the United States Court. (Conc. Kennard, J., 462; post, opn. & dis. 461.) id. at see We are under a solemn obligation interpret and implement the United States capable Constitution. We are no less discharging duty any than other court. We “should disabuse the notion [ourselves] in matters of procedure constitutional play law criminal always Ginger we must
Rogers high to the (People Astaire—always following, court’s Fred v. Cahill leading.” never Kennard, (dis. Cal.4th 557-558 Cal.Rptr.2d 853 P.2d opn. course, J.).) Of may that court to depart precedents. decide from its own But we cannot predict, event, and hence should not attempt anticipate, changes even such In course. court, since our oath is to the put Constitution not to the we should the matter out of mind altogether. *39 Amendment trial The Sixth to Sullivan “in- right by jury, explains, cludes, element, , its most the to . . . as have the important right jury, reach of . . . rather than the the judge, requisite finding ‘guilty.’ “What the factfinder must determine to return a verdict of is guilty Due the Process Clause. bears the burden of prescribed prosecution by [citations], of and all elements the offense must proving charged, persuade a of ‘beyond the factfinder reasonable doubt’ the facts to establish necessary each of .... those elements
“It is self-evident . . . that the Amendment of requirement [Fourteenth] the a reasonable doubt and Sixth Amendment proof beyond requirement of a Louisiana, (Sullivan interrelated.” 508 verdict are U.S. at jury pp. 188, 2080-2081].) at at L.Ed.2d 113 S.Ct. p. Amendment would the Sixth to satisfy not have a Accordingly, jury “[i]t determine that the defendant is leave it to probably guilty, then the up . judge to determine . . whether reasonable guilty beyond he a doubt.” Louisiana, (Sullivan 188, at 508 U.S. L.Ed.2d at p._[124 p. 2081], S.Ct. at italics in original.) it would not have a
Similarly, Sixth Amendment to resolve satisfy jury some the elements of the crime of which it determines underlying of facts the defendant and then it to leave a to resolve rest.2 guilty, up judge
The unsoundness of Justice itself in the Kennard’s reveals unten- analysis able result it yields.
To “I do not mean to that if all to quote: guilt facts material were suggest trial court could direct a verdict for the or undisputed, government with verdict dispense a enter a conviction. I entirely judgment understand the Sixth Amendment to federal Constitution requiring court, guilt determination not where the by jury, by even material facts are What I am is that once the has undisputed. suggesting made determination, misinstruction on element any single charged offense, or indeed on element will harmless if the every offense, element or elements were established question facts.” by undisputed (Conc. Kennard, J., 459, 3, & dis. at fii. italics post, opn. original.) say 2 All this may right is not to that a not waive his defendant Sixth Amendment trial jury, trial, part, proceedings. whole or in the course of such a waiver Before must be (Boykin 238, knowing v. Alabama voluntary. U.S. 242-244 279-280, trial, 1709].) (Cf. During v. Adams 89 S.Ct. is true. same Cal.4th fact].) Cal.Rptr.2d [speaking Having 862 P.2d of a stipulation entirety, reviewed the its right record in I cannot find that defendant his waived extent. that, The foregoing passage it would be necessarily suggests although error for a “trial court direct a verdict for the government dispense [to] conviction,” with a verdict and enter a entirely judgment would established, nevertheless be if harmless the elements of the offense were satisfaction, court’s reviewing facts that the defendant failed to dispute trial.
That, however, Indeed, cannot be the law. makes it is not the law. Sullivan that “directed verdicts for the plain State” are not “sustainable on appeal Louisiana, (Sullivan . . . .” v. supra, 508 U.S. at L.Ed.2d at p. p._[124 190, 2082].)3 113 S.Ct. at p. assume,
Let sake, us for argument’s that Justice is Kennard’s analysis sound to this She thus: point. proceeds The instructional of the misdefinition “immediate presence” element was harmless under Chapman because defend- ant failed to at trial the dispute facts “immediate establishing presence,” with the other along elements of the crime of as to the robbery, taking wallet from the victim’s “person.” Kennard,
Unlike Justice I cannot discern defendant’s as a undisputed guilt direct of She perpetrator asserts robbery. that “the force used to effect the of the wallet had not taking ceased when defendant joined enterprise.” (Conc. Kennard, J., & dis. opn. 460.) at Her post, seems to p. implication be that defendant in participated item. He did not. Of simply course, he evidently That, however, participated retaining item. is another matter. Kennard,
Unlike Justice
I also cannot discern defendant’s undisputed guilt
as an aider and
that,
abettor of
She
robbery.
asserts
under the rule of v. Cooper
450,
IV above, For the reasons stated I although would affirm defend- generally convictions, ant’s I would reverse as to and the related crimes of murder and for kidnapping robbery.
KENNARD, J., case, Concurring Dissenting. this The jury after *41 receiving instructions from the trial court that defined one erroneously element of returned verdicts robbery, defendant of convicting and robbery certain offenses. On robbery-related defendant’s the Court of appeal, Appeal whether, reversed these convictions. This court review to decide granted as concluded, the Court of Appeal the erroneous instruction so tainted the verdicts on the robbery offenses as to robbery-related that the require convictions be reversed and the matter retried.
The determination of prejudice unusual difficulties. The presents charge was robbery presented to the under alternative factual theories involving different items of at different times from property victim, same the erroneous instruction was as to some clearly misleading others, theories but not and the verdict does not disclose which theory theories the jury Because the error accepted. trial implicates right Constitution, under the federal the determination of must be made prejudice Court, to federal according standards set the United States but Supreme the high court’s recent decisions leave room for doubt as to the correct analytical cases such approach as this one.
The I it, find majority’s analysis difficult to follow. IAs understand majority concludes that the instructional error was not because prejudicial we as a reviewing court infer may that the jury actually rested its robbery verdict on a factual or theories as to which the theory erroneous instruction was infer, not reasons, We so implicated. may because the majority evidence in support on those guilt theories was so as to overwhelming establish guilt however, as a matter of I law. am not persuaded, relevant decisions of the United States Court Supreme us to draw permit such an inference about the actual basis of a verdict. jury’s
I error, agree defendant was not the instructional I prejudiced by but arrive at that, view, this conclusion a different is more approach my harmless, What the error federal makes reconciled with precedent. easily defendant, his his trial and through testimony is that this approach, under his fact needed every prove guilt to the admitted argument jury, attorney’s were the elements of established robbery crime of Because robbery. facts, to decide no factual issues for the jury there were by undisputed that, know, all we the jury for it is of no constitutional significance therefore its in reaching instruction to some extent on the erroneous have relied may robbery charge. verdict on the guilty facts, reversal this a case of established guilt by undisputed
Were not decisions by controlling would required conviction appear Court, in the dissenting opinion of the United Supreme explained States by undisputed Because this is a case established guilt Justice Mosk. facts, I not join not case of evidence of do overwhelming guilt, simply Mosk Justice in dissent.
I these:
The relevant facts are an when its owner Three men were to steal automobile young attempting owner, took, whom men subdued the vehicle’s they appeared. young automobile, One of with to a house where defendant staying. his along what had men entered the house and told defendant happened, young Defendant, remained with their whom while other two outside captive. *42 leader, bind the others their instructions to and blindfold regarded as gave (using the victim. When his instructions had been carried out handcuffs the defendant had went out to automobile in which defendant the supplied), victim was confined. One of the men handed defendant the victim’s young he in the wallet. Defendant removed and for himself the found money kept wallet.
Thereafter, and “team” proceeded defendant the three members of his loot the victim’s home and and to use the victim’s automatic teller business machine access cards to obtain from his accounts. Defendant was a money activities, full in these and it was defendant who rented a motel participant the will. In defendant’s room which victim was confined his against absence, the the where him others took victim to a remote location shot they murder, death. the When informed defendant assisted concealing accounts, withdrew more the victim’s body, money from attempted sell the victim’s automobile. facts, trial, his each of these
During defendant testimony admitted he that maintained his initial motive in although assisting kidnapping was to control the behavior of his subordinates so that the situation merely would not out of hand. get
In to the argument defendant’s trial jury, conceded attorney that defendant was of most of the crimes guilty with which he was charged, including theft, three counts of kidnapping, two counts of auto burglary, theft grand firearm, and fraudulent use of bank access cards. Defense counsel chal- lenged only charges robbery, for kidnapping robbery, murder. Regarding robbery defense counsel charge, conceded that defendant’s three had committed companions robbery by forcibly the victim’s taking automobile, that, his and his wallet. But counsel keys, as to the argued taking items, of these the crime of terminated had robbery before defendant joined and therefore enterprise, defendant was not of but guilty robbery only the lesser offense of stolen Counsel receiving property. conceded that defend- ant had home, business, in the later thefts from the participated victim’s accounts, bank but counsel that none of these thefts argued would support conviction because robbery none of the items had been taken from the victim’s or immediate person presence. to the prosecutor, argument defense jury, counsel’s asser- disputed
tion that automobile, of the robbery involving taking keys, victim’s and wallet had ceased before defendant joined He that enterprise. argued so robbery ongoing as the robbers were long “encumbered” with the defendant, victim robbery and that in the by assisting restraint and transpor- victim, tation of the had aided and abetted the But the continuing robbery. did not limit prosecutor the robbery to the of the charge victim’s automobile, and wallet. He keys, also argued defendant could be found of the guilty based on the later thefts charge from the victim’s house and business. on an Relying erroneous an act of robbery instruction occurs in the immediate presence victim so as the victim long offense, perceives overt act with the connected prosecutor argued that the “immediate element was satisfied because the victim had overheard conversations in which the “team” discussed to loot plans *43 victim’s residence and business and because those who in these participated had takings the victim questioned about what would find inside.1 they 1 “Now, judge you the told yesterday what robbery that meant. An act of occurs in the presence immediate person overt, of the long who is robbed person perceives any as as that any overt act connected with the offense. “Now, issue, you when you look at that person’s are to look perceptual at all of that see, hear, namely, abilities: ability his to ability sensory his perceptions the other that person might a have. “What about the items They that were taken from the business? weren’t taken from his person. They weren’t taken from presence. his immediate possession, He wasn’t in actual but possession he had constructive of property. those items of Taken from presence his immediate because he perceive was able to several overt acts taking property. associated with the of that house, sitting When he was out in Maple’s clearly front of Shon he must have heard them
455 II of state, as “the felonious personal is defined robbery
In this another, immediate pres from his or person of in the possession property will, (Pen. fear.” means of force or ence, his accomplished and against Thus, the Code, personal is that robbery one of the elements §211.) or from the person either from the victim’s the victim taken property 577, Cal.3d 52 In v. Hayes presence. People victim’s immediate term 376], the 874, held that this court 802 P.2d Cal.Rptr. 626-628 [276 the means the definition of robbery, as used in “immediate presence,” “ ‘ reach, observation “so within inspection, is victim’s] property [the ’ ” victim not retained had that the victim could have possession control” force or use of so or deterred from doing perpetrator’s been prevented fear. v. Hayes, tried court’s decision in People
This case was before this on the of “immediate meaning Cal.3d 577. Instructing “The act of the trial court told the jury: as in the definition robbery, used of a within immediate presence is deemed have occurred with the overt act connected victim so victim perceived long of the and all of sensory perceptions commission offense. Any As this court explained victim are to be considered in determining presence.” the term erroneous it deprives v. this instruction is because Hayes, People meaning, making duplicative “immediate presence” any independent (Id. 627-628.) fear” element robbery. “force or court, defines one of trial to the jury, incorrectly When a instructions the defend of the crime which the defendant is charged, elements with if the review of that be affirmed on only ant’s conviction crime can appeal did not reasonable doubt that the error court is a ing beyond persuaded 386 U.S. to” the verdict. v. “contribute (Chapman California 710-711, 824,24 1065]; see also Pope L.Ed.2d S.Ct. A.L.R.3d 439, 446, 1918]; (1987) 481 107 S.Ct. Illinois U.S. 577, 628.) To whether an error Hayes, supra, Cal.3d determine verdict, to” a court does not ask whether reviewing hypo “contributed did not occur would thetical trial which error hypothetical business, going way asking Valdez talking about back to the business. On the F[.] business, Maple—and again, point him in time Shon questions. Once at the there was a when building any property taken—specifically this before is asked about he [the victim] *44 had come out of. gentlemen, with the suggest you, to ladies and that these overt acts associated commis- “I taking taking property property sion the of that made the within [the victim]’s law, by though defined was out in the car at presence immediate the even the [the victim] items were taken.” time the (Sullivan have the (1993) reached same verdict. v. Louisiana surely 508 U.S. _,_ 182, 188-189, Rather, 2081].) L.Ed.2d 113 S.Ct. the court must ask whether reviewing guilty the verdict rendered in actually this trial (Ibid.) error.” unattributable to the This is because the “surely Sixth court, Amendment trial that the jury means and not right jury, reviewing must find a reasonable doubt fact needed convict. beyond every
To determine error, whether a verdict was unattributable” to a “surely trial the court first should determine what evidence the reviewing ordinarily jury considered its verdict the trial actually reaching by evidence in analyzing instructions, of the light considered relevant evi- presuming jury Next, it dence when told do so. the might court must the reviewing weigh evidence considered tainted evidence or other properly against any improper jury influence from the The be resulting may error. conviction if upheld only this shows that the weighing influence was process improper “unimportant in relation to else the everything considered on the issue in jury question, as (Yates revealed in record.” (1991) the v. Evatt 500 U.S. 403 [114 432, 449, 1884].) S.Ct. case, In this task of the harmless error of the means described assessing because the the analysis prosecutor base its complicated urged jury verdict of several different the robbery verdict takings, jury’s does not which disclose or the based its verdict taking takings jury upon, (3) the of the instructional error varies significance greatly depending upon which takings or considered in its verdict. taking jury reaching wallet,
If the its on the based verdict victim’s jury robbery taking for would the instructional error be The wallet example, inconsequential. was taken from victim’s and because be committed person, may robbery victim, either from of the taking immediate person presence definition would never have occasion to “immediate apply if its presence” it based verdict from the victim’s entirely upon taking hand, On the if person. other based its verdict on the thefts robbery residence, from the victim’s the instructional error would most likely thefts prejudicial. These did not consist items from the taking victim’s and whether the items were taken the victim’s imme- person, diate (See a factual issue for the presence presented jury. Hayes, 628-629.) Cal.3d Because the would have jury presumably issue, used the erroneous “immediate instruction to decide this would have and would never have proceeded by asking wrong questions made the factual determination. required we, court, believes that as a infer majority evidently reviewing may its rested on the wallet or verdict similar
457 evidence in support the prosecution’s because items from the victim’s person as a establish defendant’s guilt so as to strong of this was robbery theory But, of the erroneous light jury in the distorting of law. when viewed matter was that defendant guilty the evidence instruction on “immediate presence,” well home and residence may thefts from the victim’s for the robbery taking on the To base the verdict robbery have seemed equally compelling. would have from the victim’s jury of the wallet and other items person, before items had terminated had to whether the as to these robbery decide from verdict on the takings defendant’s To base the robbery involvement. residence, whether would have had to decide the victim’s home or the jury Either immediate items satisfied the element of taking presence. these was vigorously would to resolve an issue that theory require jury instructions Given the trial court’s contested counsel closing argument. instruction) and counsel’s the erroneous “immediate (including presence” have these alternative theories well might appeared equally arguments, sound, to a reasonable How then can juror. problematic, equally doubt, confident, court be a reasonable jury reviewing beyond or some other item from rested its verdict on the of the wallet actually taking the victim’s person? takes the view that because
Justice Mosk’s concurrence dissent relied verdict does not reveal which or theories the robbery theory jury upon, conceivable, it is if not based and because certainly likely, the “immediate verdict in whole or in as which robbery part upon theory a reviewing instruction would have been misleading, prejudicially was court not a reasonable doubt that the verdict may say beyond with unattributable” to the instructional error. I Although agree “surely we, court, Justice Mosk’s concurrence and dissent that as a reviewing may not infer that the rested its on a from the victim’s verdict jury actually to con- nonetheless there to be a sound basis which person, upon appears instruction. clude that defendant was not the erroneous jury prejudiced by Evatt, Under the United States decisions in Yates v. Court’s Supreme U.S._ Louisiana, U.S. and Sullivan v. 2078], L.Ed.2d error S.Ct. focus of the harmless analysis case, the verdict rendered in this not the verdict that would upon actually have been rendered in a trial free of the instructional error. hypothetical Thus, if an instructional error making necessary prevents factual it is irrelevant finding, generally that the evidence supporting Scalia, In the words of finding Justice overwhelming. “misdescription an element of the offense . . . role” and factfinding of its deprives (Carella v. thus is “not curable record by overwhelming evidence of guilt.” 218, 225, 491 U.S. S.Ct. 2419] California (conc. Scalia, J.).) opn. *46 Here, however, evidence, the record shows not merely overwhelming but critical, undisputed facts. The distinction is as I shall explain.
The United States
Court commented
Supreme
on the role of undisputed
in
facts
harmless error
analysis
Connecticut v. Johnson
In a concurring three other Justice opinion joined by Scalia has justices, likewise acknowledged instructional error an issue effectively taking from the be deemed jury may harmless when it relates to “an element of the crime that the defendant in case (Carella admitted.” v. California, supra, 263, 218, 491 U.S. Scalia, L.Ed.2d (cone. J.).) opn. the United Although States Court has not Supreme held that yet directly facts undisputed render harmless may a trial court’s error in an misdefining offense, element of a I am based on this charged persuaded, concurring footnote, course, 2 In a plurality justified, noted that “a defendant in a is criminal trial defending solely in presumption reliance on the of his innocence and the State’s burden of (Connecticut Johnson, 73, 87, proof.” 835].) v. 460 U.S. fn. 16 In words, other undisputed a fact becomes only affirmatively in a criminal trial if the defense concedes it. in Connecticut Scalia on the plurality opinion Justice opinion Johnson, (See U.S. also would so 460 U.S. that it conclude. instruct failure to (9th 1993) Warren 327 [stating Cir. 984 F.2d undisput- element was omitted an element of if the an offense harmless *47 ed].) but facts undisputed “cured” by is it error
Why that instructional may reasonable is not When a fact is by overwhelming undisputed, evidence? true, would that the ordinarily jury to assume the it as because jury accepted actually have no do otherwise. But it does not follow jury reason to may its the fact. An erroneous instruction undisputed jury rested verdict on is the a to as an fact that essential to cause dismiss irrelevant jury undisputed Thus, an an fact does not “cure” instructional determination. guilt undisputed the assurance the rested its verdict on error that by providing jury actually fact. undisputed reason facts error be found in the may “cure” instructional undisputed cases, of the of In criminal the guarantee right
nature constitutional trial. jury is, a to trial a to have the rather than court decide right jury primarily, jury a charge. “issue of fact” in the trial of the criminal But when every arising existence, the its there is no fact or have to undisputed, parties stipulated resolve, of fact” to this of the Amend- “issue for the and Sixth jury aspect stated, to ment trial is not Otherwise the federal right jury implicated.3 of a Constitution an accused to have decide the truth gives no the right fact that the has not to accused elected contest.
Here, on the fact needed convict defendant of based every robbery It was victim’s wallet was at defendant’s trial. taking undisputed (1) that defendant or a member of team took wallet undisputed his will; (2) the victim’s that the wallet was taken victim’s person; against force; (4) that was that and his defendant accomplished by companions intended to the victim of at least the cash permanently deprive wallet, contained in if not of the wallet itself. Defendant none disputed facts, these them his his admitting through lawyer’s through testimony to the In that counsel argument defense relied jury. jury argument, upon wallet, the victim had been his theory robbery robbed of although suggest guilt undisputed, 3 I not mean if do all material were the trial court facts government dispense entirely could direct verdict for the verdict and enter a with a judgment I federal conviction. understand the Sixth Amendment to the Constitution court, guilt requiring by are jury, determination not even where material facts determination, undisputed. suggesting What I am once the made that is that has offense, every or indeed on element of any single charged misinstruction element of the offense, will be undis question harmless if the element or elements in were established puted facts. wallet, had terminated before defendant received the and therefore defendant was stolen This guilty only receiving defec- property. theory legally tive; the defense was no defense at all. purported
The flaw in counsel’s of defense is theory review of the law apparent upon For aiding abetting. as an aider and purposes determining liability abettor, “the commission of a continues until all acts constituting offense have ceased.” (People Cooper Cal.3d 1164 742], omitted.) 811 P.2d italics & fn. Cal.Rptr. And this court has offense, that “in the duration an recently emphasized for the determining of aider and abettor the court must purpose take into account the liability, nature interests that the is intended to penal provision protect.” *48 1027, 128, (1994) v. 7 Cal.4th 1040 (People Montoya 874 Cal.Rptr.2d [31 903].) P.2d This court noted also that “both the victim of a crime and a aider and potential abettor will not an offense as ‘com frequently perceive because all elements pleted’ simply establish have necessary guilt already been (Ibid.) satisfied.”
Here, the force used to effect the of the wallet had not ceased when taking defendant the The members of defendant’s team had joined enterprise. the victim and him to defendant. The victim overpowered brought directly was still restrained and held when defendant obtained being forcibly captive Thus, is, the wallet. the acts (that the of the wallet the constituting robbery of force or fear to application victim from his had not separate property) (See 1158, Moreover, 1164.) ceased. v. Cooper, 53 Cal.3d supra, robbery punished victim’s interests in both loss of protect avoiding 775, and harm. v. 22 property physical (People Guerin Cal.App.3d 782 573].) Consideration of these interests dictates that a Cal.Rptr. [99 not be considered terminated while the robbers continue to hold the victim’s and the victim property remains their and at risk of imme captive diate harm. physical
Here, wallet that had been taken from the appropriating forcibly victim, with the intent to the victim of the cash permanently deprive wallet, and by knowingly in the victim’s contin- intentionally assisting restraint, ued defendant joined either as an aider and continuing robbery abettor or as an additional direct perpetrator.
III The of views reflected in the diversity several authored this opinions court suggests federal standard is not as clear controlling prejudice
461 be, States Supreme the United and that further elucidation as might be useful.4 Court would error harmless the federal difficulty determining applying high examination
standard in case like this becomes apparent upon 497, Illinois, involved which 481 U.S. court’s decision in v. Pope jury, literature. In its instructions for prosecution selling pornographic “contemporary to use had instructed the trial court erroneously stan- standards,” “reasonable person” rather than an objective community dard, lacked serious material to determine whether the obscene allegedly States artistic, (See Smith v. United or scientific value. literary, political, 334-335, 1756]; 324, Miller S.Ct. (1977) 431 U.S. L.Ed.2d 97 430-431, S.Ct. 413 U.S. California error, the instructional 2607].) The United States Court held that Supreme considering question because it did not entirely preclude instructed, value, could would be harmless if “no rational if juror, properly Illinois, U.S. at find value in the magazines” (Pope 447]), it remanded the case to a state court for L.Ed.2d at resolution of this question. dissented, on an
Justice Stevens that misinstruction position *49 element of an “It is fundamental that an offense could not harmless: matter, (and court) court a is not free to decide in a for that trial appellate that, asked, criminal case if a would have found that it did not something find. We have of harmless error in these consistently rejected possibility Illinois, 497, L.Ed.2d circumstances.” v. 481 U.S. 509-510 (Pope supra, [95 439, Stevens, (dis. J.).) opn. 451] this was in the United States
Although the most recent case which Court has the harmless error that a Supreme explained analysis reviewing court should use an when a trial court’s instructions defined incorrectly offense, element of a in that case has not charged although holding overruled, been there are to doubt that the harmless error expressly grounds Illinois, set forth in the 481 analysis v. U.S. majority opinion Pope supra, 497, has continuing vitality precedent. 478, People 4 Quoting my v. Cahill dissenting opinion 5 Cal.4th 554 [20 582, 1037], Cal.Rptr.2d argues “guidance” 853 P.2d Justice Mosk that we stand in no need Supreme
from the United States Court because . . . than capable we are “no less other Mosk, J., ante, 449, (Conc, interpreting court” of opn. the federal Constitution. dis. case, 1.) from Cahill is taken out of context. quotation fn. But In that this court was interpreting holdings our state follow obligation Constitution and therefore was under no Supreme construing provisions the United States similar in the federal Constitution. On Court law, application matters of federal such as of the federal harmless error constitutional 705, Chapman California, supra, 18, 710-711], standard under U.S. 24 L.Ed.2d v. 386 [17 Supreme rulings binding are on this court. situation is otherwise. The United States Court’s 564, 629, 705].) e.g., (See, v. Clair Cal.Rptr.2d 2 662 828 P.2d Cal.4th [7 462 for its authority
As harmless error the court had relied methodology, one of its earlier decisions: “The situation here is to that in comparable Rose 460, Rose, v. U.S. (1986). Clark 478 L.Ed.2d 106 S.Ct. In [92 malice, in a murder trial was instructed on the incorrectly element of yet the Court held that a harmless-error The Court inquiry appropriate. that in the absence of error that renders a trial explained fundamentally unfair, such as denial of the to counsel or trial right before a financially interested a conviction should be judge, affirmed court reviewing ‘[w]here can find that the record at trial established a reason- developed guilt beyond Id., Illinois, 497, able doubt . . . .’ at 579.” v. (Pope supra, U.S. 439, 446], omitted.) 502-503 L.Ed.2d fn. later, Just four years court stated that this (that misin- very language “
struction on an element of an offense is harmless a reviewing ‘[w]here court can find that the record at trial establishes developed guilt beyond was, ”) reasonable doubt’ isolation, at least when viewed in “not correct.” (Yates Evatt, 391, 402-403, v. 432, supra, 500 U.S. fn. 448].) L.Ed.2d case,
In a still later court cited high approvingly Justice Stevens’s Illinois, 497, dissent in v. Pope 481 U.S. supra, for the that “to proposition verdict hypothesize guilty that was never fact rendered—no matter how inescapable findings support verdict be—would violate the might Louisiana, (Sullivan U.S._,_ jury-trial guarantee.” 182, 189, 2082].) 113 S.Ct. Thus, it would seem harmless error analysis prescribed Pope Illinois, supra, 481 U.S. has been the form disapproved replaced by Evatt, outlined in analysis Yates v. U.S. and Sullivan v. *50 Louisiana, U.S._[124 supra, 508 113 S.Ct. Yet the 2078]. court has high not itself the newer mode of applied to a analysis jury offense, instruction an misdefining element of a but charged only jury instructions containing improper “reason- presumptions misdefining able doubt” standard of And the court has proof. never high attempted situation, apply case, Yates!Sullivan to a analysis such as in this presented in which the alternative given factual theories of the verdict guilt, does not disclose which or theories the and the theory jury accepted, erroneous instruction would be as to some theories of but misleading guilt not others. firm Lacking from the guidance court situations high directly here, analogous the one we face this court’s resolution of the harmless error problem must of necessity involve a of inference and degree certain decisions of the readings informed based our speculation pertinent court.5 high
IV fact a defendant is entitled to have the decide issue every Although Here, of fact.” material to facts that are do not raise “issues guilt, undisputed to incorporate the verdict defendant of be deemed convicting robbery may fact, every of each material and those establish findings findings undisputed I as best element of the federal harmless-error standard robbery. Applying it, am able doubt that the to determine I conclude a reasonable beyond error” verdict defendant was unattributable to the against “surely that the trial court committed when it instructed the with an incorrect definition of the “immediate element of robbery. *51 agrees least one 5 At federal court that there is In a ambiguity in the current state law. not, opinion,
recent the First might, Supreme Circuit remarked: “One recent might read Court decisions to mean that where an incorrect instruction of an offense] an element [on given, may adequate government it not be for the to show evidence assured that the record proper reasonable under instructions element disputed would have found rather, government; may favor of the this the law that have made must in fact (U.S. finding despite 1994) Whiting (1st erroneous instruction.” 28 F.3d Cir. omitted.) fn.