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296.2 Standards Of Prejudice On Appeal

    296.2.3 Standard Of Prejudice On Appeal As To Errors Affecting An Element Of The Charged Offense

    296.2.3.1 Standard Of Prejudice On Appeal: Removal Of All Elements
    296.2.3.2 Standard Of Prejudice On Appeal: Removal Of A Single Element
    296.2.3.3 Standard Of Prejudice On Appeal: Removal Of A Single Element Requiring Less Than Proof Beyond a Reasonable Doubt
    296.2.3.4 Standard Of Prejudice On Appeal: Instruction Which Directs Verdict Against The Defendant
    296.2.3.5 Instruction Which Lightens Or Reduces The Prosecution's Burden Without Totally Removing An Element Of The Charge
    296.2.3.6 Standard Of Prejudice On Appeal: Omission Of Or Improper Instruction On Element Of A Death Qualification Allegation
    296.2.3.7 Standard Of Prejudice: Failure To Instruct On Element Of Sentencing Enhancement Or Prior Conviction

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APPELLATE PRACTICE NOTE: Where an instruction or omission wholly removes most of the elements of the charge from the jury's consideration, thus resulting in the jury's failure to make a factual determination of an element of the offense, the error has been held to be reversible per se notwithstanding defendant's failure to "dispute the existence of the predicate facts and that the evidence overwhelmingly established all the elements of [the charge] ...." (People v. Cummings (CA 1993) 4 C4th 1233, 1316 [18 CR2d 796] [4 out of 5 elements omitted]; see also Osborne v. Ohio (1990) 495 US 103, 123-25 [110 SCt 1691; 109 LEd2d 98].)

    While the U.S. Supreme Court has suggested that the failure to instruct on an uncontested element is not reversible error (Neder v. U.S. (1999) 527 US 1, 9 [119 SCt 1827; 144 LE2d 35] the complete failure to instruct on any elements of the charge is a different matter which should require per se reversal. (See Cummings, supra.) This is so because by pleading not guilty the defendant places in issue every element of the charge. (See e.g., NCJIC 270.4.1 [Reasonable Doubt As To Any Element Or Essential Fact By Any Juror Precludes Conviction].)

RESEARCH NOTES:

See Capital Punishment Handbook [3.5.1.2 a. Harmless Error: General Principles And Authorities].

See also generally, NCJIC 305.1.12 [Appeal].

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    A.   Failure To Instruct On A Contested Element Should Be Reversible Per Se. The failure to instruct on an element of the charge is not always reversible error. For example, Neder v. U.S. (1999) 527 US 1, 9 [119 SCt 1827; 144 LE2d 35] held that the failure to instruct on an uncontested element of the charge is not reversible error per se. Rather, the error will be considered reversible if "the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element." (Neder, 527 US at 19.) In other words, "where a defendant did not, and apparently could not, bring forth facts contesting the omitted element," the error may be considered harmless. (Ibid.)

    On the other hand, Neder implies that the failing to instruct on a contested factual issue is reversible error. This analysis comports with the analysis in People v. Flood (CA 1998) 18 C4th 470, 502 [76 CR2d 180] and U.S. v. Rogers (11th Cir. 1996) 94 F3d 1519, 1524-27 which similarly suggested that the failure to instruct on an element that is factually contested is reversible error. Rogers explained:

    "An instructional omission [to instruct on an element of the charge] may be viewed as harmless only in three rather infrequent scenarios "(1) where the infirm instruction pertained to a charge for which the defendant was acquitted (and not affecting other charges); (2) where the omission related to an element of the crime the defendant in any case admitted; and (3) where the jury has necessarily found certain other predicate facts that are so closely related to the omitted element that no rational jury could find those facts without also finding the element." (U.S. v. Rogers (11th Cir. 1996) 94 F3d 1519, 1526.)

    Similarly, in People v. Kobrin (CA 1995) 11 C4th 416, 429, fn 8 [45 CR2d 895], the California Supreme Court reversed for failure to instruct on materiality in a perjury case because "the defense did not concede the issue ... and the trial court's instruction completely deprived the jury of an opportunity to consider the materiality [issue]." (Kobrin, 11 C4th at 430.)

    The Kobrin court relied upon 3 principles in reversing the conviction for the failure to instruct on the materiality element of perjury.

    First, the court reasoned that the failure to instruct upon an element of the charge is "more akin to the erroneous reasonable doubt instruction at issue in Sullivan [Sullivan v. Louisiana (1993) 508 US 275 [113 SCt 2078; 124 LEd2d 182]]."  That is, "the jury's findings on materiality were not merely imperfect, they were nonexistent due to the instructional omission. Thus, '[t]here is no object, so to speak, upon which harmless-error scrutiny can operate.' [Citation.]" [Emphasis in original.] (Kobrin, 11 C4th at 429.)

    Second, in reliance upon Yates [Yates v. Evatt (1991) 500 US 391 [111 SCt 1184; 114 LEd2d 432]] the court reasoned that when the "jury evaluates evidence 'with the wrong question in mind' it is impossible to say beyond a reasonable doubt that the error was harmless." (Kobrin, 11 C4th at 429.)

    Third, the Kobrin court reasoned that the removal of the materiality element "may have affected the composition of the record," precluding the defense from presenting evidence as to the issue of materiality. (Id. at 429-30; see also People v. Bell (CA 1996) 45 CA4th 1030, 1066 [53 CR2d 156] [both the California and U.S. Supreme Court have "strongly implied" that the failure to instruct concerning an element of an offense is a structural error that requires per se reversal].)

    B.    Applicability Of Sullivan v. Louisiana To Failure To Instruct On Element Of The Charge.  Sullivan v. Louisiana (1993) 508 US 275, 278 [113 SCt 2078; 124 LEd2d 182] is a key case in evaluating the failure to instruct on an element of the charge. (See People v. Buchholz UNPUBLISHED (CA 1998) 62 CA4th 1196 [74 CR2d 38] [reviewing court relied on Sullivan to find reversible error]; but see People v. Flood (CA 1998) 18 C4th 470, 491-07 [76 CR2d 180] [rejecting Sullivan argument].) A comprehensive discussion of Sullivan appears in Rutgers Law Journal, "The Effect of Sullivan v. Louisiana on Harmless Error Analysis of Jury Instructions That Omit An Element Of The Offense," by Benjamin E. Rosenberg, 29 Rutgers L.J., 315 Winter, 1998. This article discusses the following questions: (1) Under what circumstances is a jury's finding on an element as to which it has been correctly instructed a "functional equivalent" of a finding on the omitted element? (2) Does Sullivan lead to hyper-technical results? (3) Does Sullivan apply where the jury instruction improperly describes, rather than entirely omits an element of the charged crime? (4) Does Sullivan apply in the habeas corpus context, or only on direct appeal? (5) Is Sullivan applicable in plain error analysis under FRCRP 52(b), where the defendant did not object to the erroneous instruction?

RESEARCH NOTES:

See Capital Punishment Handbook [3.5.1.2 a. Harmless Error: General Principles And Authorities].

See also generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: Even if the element upon which the jury was not instructed required only proof by a preponderance of the evidence (e.g., an element of the statute of limitations) the failure to so instruct is federal constitutional error. (People v. Bell (CA 1996) 45 CA4th 1030, 1066 [53 CR2d 156].) However, because the Bell court found the error to be reversible under the lesser Chapman test, it did not reach the question of whether the failure to instruct on an element of the statute of limitations should be reversible per se.

RESEARCH NOTES:

See Capital Punishment Handbook [3.5.1.2 a. Harmless Error: General Principles And Authorities].

See also generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: The Due Process Clause of the 14th Amendment of the United States Constitution precludes the state from convicting the accused unless the prosecution proves beyond a reasonable doubt every element of the charged offense. (In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368].) Hence, jury instructions that effectively relieve the state of its burden of persuasion violate a defendant's due process rights. (Sandstrom v. Montana (1979) 442 US 510, 526 [99 SCt 2450; 61 LEd2d 39]; Rose v. Clark (1986) 478 US 570, 583 [106 SCt 3101, 92 LEd2d 460].) Such directions subvert the presumption of innocence accorded to accused persons and also invade the truth-finding task assigned solely to juries in criminal cases. (Carella v. California (1989) 491 US 263, 264 [109 SCt 2419; 105 LEd2d 218].) However, a mandatory conclusive presumption is not the equivalent of a directed verdict for the state and is subject to the harmless error rule. (Id. at 266.)

   "[I]f a court direct[s] a verdict for the prosecution in a criminal trial by jury ... the state cannot contend that the deprivation was harmless because the evidence established the defendant's guilt; the error in such a case is that the wrong entity judged the defendant guilty." (Rose v. Clark (1986) 478 US 570, 578 [106 SCt 3101; 92 LEd2d 460]; see also United States v. Martin Linen Supply Co. (1977) 430 US 564, 572-73 [97 SCt 1349; 51 LEd2d 642]; People v. Figueroa (CA 1986) 41 C3d 714, 723-34 [224 CR 719]; Helm v. U.S. (DC 1989) 555 A2d 465, 467; State v. Adams (OH 1991) 598 NE2d 719, 722; but see NCJIC 3.1.2 [Duty To Instruct On Elements Of Charge Even If Uncontested].)

RESEARCH NOTES:

See Capital Punishment Handbook [3.5.1.2 a. Harmless Error: General Principles And Authorities].

See also generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: In situations where the prosecution's burden of proof has been shifted or lessened or where the jury has been misinstructed upon an element of the charge without wholly removing consideration of that element from the jury, then the Chapman harmless error test is normally applied. (See Carella v. California (1989) 491 US 263, 271 [109 SCt 2419; 105 LEd2d 218]; see also People v. Hernandez (CA 1988) 46 C3d 194, 210 [249 CR 850].)

    When an instructional error "affects only an aspect of an element" the standard as enunciated in Carella and further refined in Yates v. Evatt (1991) 500 US 391 [111 SCt 1884; 114 LEd2d 432], should be utilized. (See People v. Cummings (CA 1993) 4 C4th 1233, 1316 [18 CR2d 796].) Yates requires the reviewing court to look to the evidence available to the jury, "and presumably considered by the jury in accordance with the instructions," on the omitted issue to determine if the evidence is so overwhelming as to leave no reasonable doubt. (Yates, 500 US at 404.) Under Yates, the reviewing court may no longer consider the strength of the evidence and determine whether it is so clear that the jury would have found the element to exist had it been properly instructed, but the reviewing court must determine whether the jury was actually able to consider the evidence under the instructions of the court. (Ibid.)

    Hence, Yates establishes a two-pronged test: (1) the reviewing court must determine what evidence the jury actually considered and (2) whether that evidence is so overwhelmingly as to leave no reasonable doubt. (Ibid.; see also People v. Reyes (CA 1992) 2 CA4th 1598, 1604 [4 CR2d 48] ["we can find the error harmless only if other facts necessarily found by the jury are so closely related to the omitted issue that, on this evidence, no rational jury could find one without finding the other."].)

RESEARCH NOTES:

Benjamin E. Rosenberg, "The Effect of Sullivan v. Louisiana on Harmless Error Analysis of Jury Instructions That Omit An Element Of The Offense," 29 Rutgers L.J., 315 Winter, 1998 [does Sullivan apply where instruction improperly describes rather than totally omits element of charged crime?].

See also Capital Punishment Handbook [3.5.1.2 a. Harmless Error: General Principles And Authorities].

See also generally, NCJIC 305.1.12 [Appeal].

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    296.2.3.6    Standard Of Prejudice On Appeal: Omission Of Or Improper Instruction On Element Of A Death Qualification Allegation

APPELLATE PRACTICE NOTE: A special circumstance or death eligibility allegation is subject to the procedural safeguards of the federal constitution. (See NCJIC 302.1.1 [Death Eligibility Determination Requires Full Federal Constitutional Due Process And Trial By Jury Protections].) Therefore, the standard of prejudice applicable to the omission of or improper instruction on an element of a death eligibility allegation should be the same as for a similar error with respect to an element of a charged offense.

RESEARCH NOTES:

See Capital Punishment Handbook [3.5.1.2 a. Harmless Error: General Principles And Authorities].

See also generally, NCJIC 305.1.12 [Appeal].

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PRACTICE NOTE: In light of Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435], the failure to instruct on an element of a sentencing enhancement or a prior conviction should be reviewed under the federal standard. (See NCJIC 300.20.1 [Misconduct Of Cocounsel As An Abridgement Of Defendant's Constitutional Rights].) However, in the absence of applicable federal constitutional provisions, improper instruction on prior convictions may have to be analyzed under the state standard of review. (See People v. Wims (CA 1995) 10 C4th 293, 315 [41 CR2d 241]; People v. Winslow (CA 1995) 40 CA4th 680, 688 [46 CR2d 901].)

    However, regardless of what standard is used, if the prior conviction is entirely removed from the jury's consideration, reversal per se is the appropriate remedy. For example, in People v. Hale REV GTD/UNPUBLISHED (CA 1999) 70 CA4th 992 [83 CR2d 125] the trial court instructed the jury that:

    "[T]he Florida statute under which [Hale] was convicted is as a matter of law sufficiently similar to the statute in California defining the crime of assault with a deadly weapon." [Page ref. unavailable.] In so instructing the jury, the court directed a verdict on the fact of whether or not a conviction had occurred by stating to the jury that the defendant "was convicted...."

    The Court of Appeal held this to be reversible error per se. "The instructions directed a true finding on the prior conviction allegations, and left no issue for the jury to decide. Under these circumstances, the instructional error is a reversible miscarriage of justice. [Citation.] As the court stated in Sullivan v. Louisiana (1993) 508 US 275, 277 [113 SCt 2078; 124 LEd2d 182], 'although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he [or she] may not direct a verdict for the State, no matter how overwhelming the evidence.'" (Hale, 70 CA4th 992, no page ref. available.) "An instructional error that, as here, is equivalent to removing the entire prior conviction allegation from the jury is a structural rather than a trial error and is reversible as a miscarriage of justice even though there is no California or federal constitutional right to a jury trial on the issue. [Citation.]" (Ibid.)

RESEARCH NOTES:

See Capital Punishment Handbook [3.5.1.2 a. Harmless Error: General Principles And Authorities].

See also generally, NCJIC 305.1.12 [Appeal].