THE PEOPLE, Plaintiff and Respondent, v. HAL LEE FLOOD, Defendant and Appellant, 18 Cal. 4th 470

Opinion GEORGE, C. J. A jury found defendant Hal Lee Flood guilty of the offense of evading a vehicle operated by a pursuing peace officer resulting in serious bodily injury, a violation of Vehicle Code

section 2800.3. To establish the offense set forth in that statute, the prosecution must prove, among other things, that the motor vehicle that the defendant was attempting to elude was operated by a “peace officer” as defined in the Penal Code.

When instructing the jury regarding the elements of the offense, however, the trial court did not advise the jury that it should determine whether the persons in the pursuing motor vehicle were “peace officers,” but instead informed the jury—in conformity with the uncontradicted evidence that had been presented at trial—that the police officers in that vehicle were peace officers, thus effectively removing this element of the crime from the jury’s consideration.

We granted review to decide whether the trial court’s action in this regard amounted to constitutional error, and, if so, whether such an error requires reversal of defendant’s conviction whether or not the error actually was prejudicial under the circumstances of the case.

We conclude that although the trial court committed constitutional error, its action does not amount to “structural error” within the meaning of the governing federal constitutional decisions and thus is not reversible per se, but rather, like most constitutional errors, is subject to harmless error analysis under both the California and United States Constitutions. We further conclude that, under the circumstances of this case, the error in question was harmless beyond a reasonable doubt and thus does not warrant reversal of the judgment.

Accordingly, the judgment of the Court of Appeal, which reached a similar conclusion, is affirmed. I On May 22, 1994, City of Richmond Police Officers Rudy Bridgeman and Michael Gurney were on duty in their police vehicle when they stopped a Cadillac that had made an illegal U-tum. Bridgeman exited from the vehicle and approached the driver’s side of the Cadillac. He observed the driver, whom he identified as defendant, looking at him in the rearview mirror. When Bridgeman almost had reached the driver’s door, the Cadillac took off rapidly. Bridgeman returned to the police car, and the officers gave chase.

Eventually the Cadillac entered an intersection and struck a van, which flipped over and ejected four occupants, all of whom sustained serious bodily injury. Defendant was charged with evading a vehicle operated by a pursuing peace officer resulting in serious bodily injury (§ 2800.3), as well as unlawful driving or taking of a vehicle (§ 10851, subd. (a)). When Bridgeman and Gurney testified at trial concerning the foregoing events, the prosecutor questioned them regarding their employment as police officers.

The following exchange occurred at the beginning of the prosecution’s case, during the direct examination of Bridgeman: “Q: Could you tell us where you work, for the record, [ft] A: Richmond Police Department. Q: You’re a peace officer with that department? [ft] A: Yes. . . . Q: And you were working in that position [on the date defendant committed the offense]? [ft] A: Yes.” Gurney similarly testified on-direct examination: “I’m a police officer for the [C]ity of Richmond Police Department,” and he stated that he was on duty the day of defendant’s offense.

Defendant did not cross-examine Bridgeman or Gurney with regard to their status as Richmond police officers. The defense case regarding the

section 2800.3 charge was based upon three contentions: (1) the police vehicle which Bridgeman and Gurney were operating, a “detective’s car,” was not “distinctively marked” as required to establish a violation of

section 2800.3; (2) defendant lacked the requisite intent to evade the officers because the passenger in the Cadillac was holding a gun to defendant’s head and forced him to speed away after the officers stopped them; and (3) defendant’s actions in evading the police officers were not a proximate cause of injury to the van’s occupants, because the van entered the intersection against a red light and its driver testified that he saw no pursuing police vehicle as he approached the intersection.

None of the testimony elicited during the defense case specifically addressed Bridge-man’s and Gurney’s employment status as police officers with the Richmond Police Department. Throughout the trial, however, evidence presented in connection with other issues corroborated Bridgeman’s and Gurney’s testimony that they were employed as police officers by the City of Richmond. When instructing the jury on the elements of the offense defined by

section 2800.3, the trial court stated: “[Ejvery person who flees or attempts to elude a pursuing peace officer in violation of Vehicle Code

Section 2800.1, and the flight or attempt to elude causes death or serious bodily injury to any person is guilty of a violation of Vehicle Code

Section 2800.3, a felony. “Officer Bridgeman and Officer Gurney are peace officers. “In order to prove a violation of Vehicle Code

section 2800.3, each of the following elements must be proved: “1. A person, while operating a motor vehicle, willfully fled or otherwise attempted to elude a pursuing peace officer; “2. Such person did so with the specific intent to evade the pursuing peace officer; “3. The peace officer’s vehicle exhibited at least one lighted red lamp visible from the front; “4. The person saw or reasonably should have seen the red lamp; “5. The peace officer’s vehicle sounded a siren as reasonably necessary; “6. The peace officer’s motor vehicle was distinctively marked, as defined; “7.

The peace officer’s motor vehicle was operated by a peace officer wearing a distinctive uniform; and “8. The flight from or the attempt to elude a pursuing police officer was the cause of serious bodily injury to another person.” (Italics added.) This instruction was taken from CALJIC No. 12.86 (5th ed. 1993 new) as it appeared in the January 1994 through January 1995 pocket parts to volume 2.

After the first paragraph quoted above, this version of CALJIC No. 12.86 included the bracketed phrase: “[_is a peace officer.].” On the instruction given by the trial court, the handwritten words “Officers Bridgman [sz'c] and Gurney” appear in the blank portion of the bracketed phrase quoted above; in addition the word “is” is changed to “are,” and the word “officer” is made plural. The blank on the instruction form next to “Requested by: People” is checked.

The space next to “Requested by: Defendant” is left blank, although defendant’s list of requested instructions contains a check mark next to CALJIC No. 12.86, and the trial court’s discussion with counsel regarding which instructions would be given suggests that both parties requested the instruction. Nothing in the record, however, indicates that defendant specifically asked the court to give the optional peace officer portion of CALJIC No. 12.86. On the other hand, the record does not indicate, and defendant does not claim, that he objected to this aspect of CALJIC No. 12.86.

The jury found defendant guilty of violating sections 2800.3 and 10851, subdivision (a). On appeal, defendant argued, among other things, that the trial court erred in instructing the jury that Bridgeman and Gurney were peace officers. As set forth above, one element of the crime described in

section 2800.3 is that the pursuing vehicle must be “operated by a peace officer, as defined in . . . the Penal Code, and that peace officer is wearing a distinctive uniform.” (§ 2800.1, subd. (a)(4).) The trial court instructed the jury that the prosecution must prove that the “peace officer’s motor vehicle was operated by a peace officer wearing a distinctive uniform” but failed to give an instruction defining the term “peace officer” (in accordance with Penal Code

section 830.1, subdivision (a)), instead informing the jury that the two officers were peace officers. Defendant contended on appeal that the trial court’s instruction impermissibly removed the peace officer component of this element of the charged offense from the jury’s consideration, and that such an error cannot be deemed harmless and necessarily requires reversal. The Court of Appeal agreed that the trial court erred in instructing the jury that Bridgeman and Gurney were peace officers, but it rejected defendant’s argument that the error could not be considered harmless. Relying primarily upon People v.

Richie (1994) 28 Cal.App.4th 1347, 1354-1360 [34 Cal.Rptr.2d 200], the appellate court held that harmless error analysis was appropriate under the Cantrell-Thornton exception to the state constitutional rule of per se reversal for instructional omissions relating to an element of the charged offense. {People v. Garcia (1984) 36 Cal.3d 539, 556 [205 Cal.Rptr. 265, 684 P.2d 826]; see People v. Cantrell (1973) 8 Cal.3d 672 [105 Cal.Rptr. 792, 504 P.2d 1256] and People v. Thornton (1974) 11 Cal.3d 738 [114 Cal.Rptr. 467, 523 P.2d 267], both overruled on other grounds in People v.

Flannel (1979) 25 Cal.3d 668, 684, fn. 12 [160 Cal.Rptr. 84, 603 P.2d 1].) The Court of Appeal observed that the Cantrell-Thornton exception permits affirmance when an element omitted from the jury instructions does not concern a material issue presented by the evidence.

Because Bridgeman and Gurney testified they were employed as police officers by the City of Richmond—thus meeting the statutory definition of “peace officer”—and no contradictory evidence was offered, the Court of Appeal concluded that “the trial court’s erroneous omission of a nonmaterial element from its instructions to the jury did not affect the fundamental fairness of [defendant’s] trial and does not constitute reversible error.” We granted defendant’s petition for review to decide whether a trial court’s instruction that a particular element of an offense has been established may be subject to harmless error analysis.

II Under established law, instructional error relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violates the defendant’s rights under both the United States and California Constitutions. The proper appellate standard for assessing prejudice arising from such errors, however, has been evolving for more than 30 years and remains uncertain under California and federal law. Defendant has framed the issue presented in this case in terms of the viability of the Cantrell-Thornton exception to a reversal-per-se rule based upon California constitutional law.

For this reason, and because we need not reach the federal constitutional question if the California Constitution requires automatic reversal, we begin by examining the origins of California’s reversal-per-se rule and its subsequent development. A People v.

Modesto (1963) 59 Cal.2d 722, 730 [31 Cal.Rptr. 225, 382 P.2d 33] held that “the defendant has a constitutional right to have the jury determine every material issue presented by the evidence.” The defendant in that case, convicted of first degree murder, argued on appeal that the trial court erred in refusing to give an instruction he requested on the lesser included offense of manslaughter.

After reviewing the evidence presented at trial, we agreed, explaining that such an instruction must be given “if there is any evidence of manslaughter deserving of consideration,” even if such evidence consists of the defendant’s “incredible” testimony. (Id. at pp. 727, 729.) Modesto's conclusion in this regard was reaffirmed in People v. Sedeno (1974) 10 Cal.3d 703, 720 [112 Cal.Rptr. 1, 518 P.2d 913], where the trial court failed to give a sua sponte instruction on involuntary manslaughter.

We subsequently disapproved Modesto and Sedeño to the extent they require jury instructions “whenever any evidence is presented, no matter how weak,” and held instead that instructions are required only if there is evidence “substantial enough to merit consideration . . . .” (People v. Flannel, supra, 25 Cal.3d 668, 684, fn. 12, original italics [failure to give requested instruction on diminished capacity].) People v.

Modesto's holding (59 Cal.2d at p. 730, italics added) that the California Constitution requires the trial court to instruct on “every material issue presented by the evidence” (in that case, a lesser included offense) has been extended to require instructions on every material element of an offense. (E.g., People v. Phillips (1966) 64 Cal.2d 574, 584-585 [51 Cal.Rptr. 225, 414 P.2d 353] [erroneous instruction rendering it unnecessary for jury to find malice]; People v.

Reynolds (1988) 205 Cal.App.3d 776, 779-780 [252 Cal.Rptr. 637] [failure to instruct on knowledge required for crime of possession of an illegal weapon]; People v. Valenzuela (1985) 175 Cal.App.3d 381, 392-393 [222 Cal.Rptr. 405] [failure to instruct on all elements of assault]; see also People v. Sheffield (1985) 168 Cal.App.3d 158, 162-164 [214 Cal.Rptr. 40] [instruction given on crime different from that charged]; cf. People v. Odie (1988) 45 Cal.3d 386, 415 [247 Cal.Rptr. 137, 754 P.2d 184] [failure to instruct on all elements of special circumstance]; People v.

Garcia, supra, 36 Cal.3d at pp. 555-556 [no instruction on the intent to kill then required for felony-murder special circumstance].) Moreover, the defendant’s right under the California Constitution to have the jury determine every material issue presented by the evidence has been held to preclude the judge from directing a verdict of guilty. (People v.

Stewart (1986) 185 Cal.App.3d 197, 205-206 [229 Cal.Rptr. 445] [improper postconviction finding that the defendant was guilty of a criminal offense not presented to or considered by the jury].) Some Courts of Appeal have stated that a failure to instruct on the essential elements of an offense amounts to a violation of this state constitutional principle “ ‘whenever there is any evidence deserving of any consideration from which the jury could have found in favor of the defendant on the omitted element....’” (People v. Gary (1987) 189 Cal.App.3d 1212, 1217 [235 Cal.Rptr. 30]; People v.

McNiece (1986) 181 Cal.App.3d 1048, 1057 [226 Cal.Rptr. 733], disapproved on other grounds in People v. McFarland (1989) 47 Cal.3d 798, 804-805 [254 Cal.Rptr. 331, 765 P.2d 493]; People v. Sheffield, supra, 168 Cal.App.3d at p. 164; People v. Birreuta (1984) 162 Cal.App.3d 454, 462 [208 Cal.Rptr. 635]; People v. Hamilton (1978) 80 Cal.App.3d 124, 133 [145 Cal.Rptr. 429].) Although such a requirement—that there be evidence supporting a finding for the defendant—may apply to failure to give a requested instruction on a defense (for which the defendant has the burden of proof) (see People v.

Barton (1995) 12 Cal.4th 186, 195 [47 Cal.Rptr.2d 569, 906 P.2d 531]), we agree with defendant that it does not govern the trial court’s duty to instmct on the essential elements of the crime. Because, under the due process guarantees of both the California and United States Constitutions, the prosecution has the burden of proving beyond a reasonable doubt each essential element of the crime (People v.

Figueroa (1986) 41 Cal.3d 714, 725-727 [224 Cal.Rptr. 719, 715 P.2d 680]), the jury may find for the defendant even if the only evidence regarding an element of the crime favors the prosecution, but that evidence nevertheless falls short of proving the element beyond a reasonable doubt. As discussed below, the existence of evidence from which the jury could find for the defendant is relevant in determining whether the instructional error is prejudicial, but the due process requirement under

article I,

section 15, of the California Constitution that the trial court give instructions regarding—and the jury determine—all essential elements of the offense does not depend upon the existence of evidence affirmatively favoring the defendant. Of course, if the asserted error consists of a failure to instruct on a lesser included offense, there must have been substantial evidence from which a jury reasonably could conclude that the defendant was guilty of the lesser offense, but not the greater offense. (People v.

Barton, supra, 12 Cal.4th at pp. 194-195 & fn. 4, 201.) Applying these principles to the present case, we conclude that the trial court’s instruction to the jury that Bridgeman and Gurney were peace officers violated defendant’s due process right under the California Constitution to have the jury determine each element of the offense set forth in

section 2800.3. An individual violates that statute whenever his or her “willful flight or attempt to elude a pursuing peace officer in violation of

Section 2800.1 proximately causes death or serious bodily injury to any person . . . .” One element of a violation of

section 2800.1' is that the pursuing peace officer’s motor vehicle “is operated by a peace officer, as defined in [Penal Code sections 830 through 832.9], and that peace officer is wearing a distinctive uniform.” (§ 2800.1, subd. (a)(4).) Penal Code

section 830.1, subdivision (a), defines the term “peace officer” to include “any police officer, employed in that capacity and appointed by the chief of police ... of a city.” Therefore, in prosecuting defendant for violating

section 2800.3, the prosecutor had the burden of proving beyond a reasonable doubt that Bridgeman and Gurney were so employed. The trial court did not instruct the jury to determine whether the officers fell within the Penal Code’s definition of “peace officer.” Instead, it informed the jury that Bridgeman and Gurney were peace officers, thus removing this element of the crime from the jury’s consideration.

Even though the only evidence regarding the peace officer element supports a finding for the prosecution, prior appellate decisions make clear that the trial court’s instruction violated defendant’s right to due process under the California Constitution. B The Attorney General concedes that the peace officer instruction was constitutional error but maintains that the error was not prejudicial. In determining the proper standard under California law for assessing whether the trial court’s error prejudiced defendant, we again begin our analysis with an examination of People v.

Modesto, supra, 59 Cal.2d 722, which expressly held that the Watson standard of review—requiring consideration of whether there is a “reasonable probability” there would have been a result more favorable to the defendant absent the error—was inapplicable to the trial court’s failure to instruct the jury on a lesser included offense: “Regardless of how overwhelming the evidence of guilt may be, the denial of such a fundamental right cannot be cured by

article VI, [former]

section 4Vz [now

section 13], of the California Constitution, for the denial of such a right itself is a miscarriage of justice within the meaning of that provision.” (Modesto, supra, 59 Cal.2d at p. 730.) Modesto further concluded that the error could not be cured by presuming that the jury necessarily rejected the evidence of manslaughter by reaching a verdict of first degree murder instead of second degree murder. “Since we do not know what effect an instruction that the jury could return a verdict of manslaughter would have had on its deliberations, we cannot conclude that it necessarily rejected the evidence of manslaughter.” (Id. at p. 731.) The latter aspect of Modesto was overruled in People v.

Sedeño, supra, 10 Cal.3d at pages 720-721, which stated: “[Ejxperience during the decade since Modesto has demonstrated that adherence to that rule is neither necessary to assure defendants their right to jury consideration of all material issues presented by the evidence nor required to avoid prejudice. Thus, in some circumstances it is possible to determine that although an instruction on a lesser included offense was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.

In such cases the issue should not be deemed to have been removed from the jury’s consideration since it has been resolved in another context, and there can be no prejudice to the defendant since the evidence that would support a finding that only the lesser offense was committed has been rejected by the jury.” Thus, Sedeño recognized that such an error does not invariably defy harmless error analysis.

Sedeño reaffirmed Modesto, however, insofar as Modesto held that if the omitted fact is not determined by the jury in some other context, the failure to instruct on the lesser included offense is reversible per se. (Id. at pp. 721-724.) In People v. Phillips, supra, 64 Cal.2d at pages 584-586, we applied Modesto’s reversible-per-se rule to the erroneous withdrawal of an element of an offense from the jury’s consideration. Subsequent decisions similarly have applied this automatic reversal rule—sometimes as qualified by the Sedeño exception—to instructional error omitting an element of the crime. (E.g., People v.

Henderson (1977) 19 Cal.3d 86, 96 [137 Cal.Rptr. 1, 560 P.2d 1180]; People v. Satchell (1971) 6 Cal.3d 28, 41 [98 Cal.Rptr. 33, 489 P.2d 1361, 50 A.L.R.3d 383]; People v. Reynolds, supra, 205 Cal.App.3d at pp. 780-782; People v. McNiece, supra, 181 Cal.App.3d at pp. 1057-1058; People v. Valenzuela, supra, 175 Cal.App.3d at p. 393; People v. Sheffield, supra, 168 Cal.App.3d at p. 164; People v. Birreuta, supra, 162 Cal.App.3d at pp. 461-462; People v. Hamilton, supra, 80 Cal.App.3d at pp. 133-134; People v.

Lilliock(1968) 265 Cal.App.2d 419, 429-430 [71 Cal.Rptr. 434].) As mentioned above, Sedeño created an exception to Modesto’s rule of automatic reversal where the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. Subsequent decisions further clarified and limited Modesto’s holding. In People v. Cantrell, supra, 8 Cal.3d 672, the defendant was charged with murder and offered a defense of diminished capacity.

The trial court instructed on manslaughter as a lesser offense, but only to the extent this offense might have resulted from the defendant’s diminished mental capacity. We rejected the defendant’s argument that the instruction should not have been limited in that manner.

Because, under the evidence, the only possible basis upon which the jury could have found the defendant guilty of manslaughter was pursuant to the theory of diminished capacity, he was not entitled to a general instruction on manslaughter. (Id. at p. 684.) Cantrell explained; “The rule requiring the court to instruct the jury upon every material question upon which there is any evidence whatsoever deserving of consideration [citing Modesto], does not imply instructions should be given on issues and questions not raised by the evidence.” (Id. at p. 685.) In People v.

Thornton, supra, 11 Cal.3d 738, the trial court gave an instruction on kidnapping that did not require the jury to find that substantial asportation increased the risk of harm to the victim. After the jury convicted the defendant on that count, we held in another case that such asportation is an element of the crime. (People v.

Daniels (1969) 71 Cal.2d 1119, 1139 [80 Cal.Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677].) Thornton nevertheless affirmed the kidnapping conviction after finding that the evidence clearly showed that the asportation met the Daniels standard. (Thornton, supra, 11 Cal.3d at pp. 767-768.) A concurring and dissenting opinion disagreed with the majority on this point, arguing that the Modesto rule should extend to failure to instruct on an essential element of the crime, and that evidence in the record supporting a finding for the prosecution on the omitted element cannot render such error nonprejudicial. (Id. at pp. 770-775 (cone. & dis. opn. of Mosk, J.).) The majority responded that even if the holdings of Modesto and Sedeño properly applied to the defective instruction, reversal was not required because, as a matter of law, the asportation did substantially increase the risk of harm, and there was no evidence worthy of consideration to the contrary. (Id. at p. 768, fn. 20.) Thus, Thornton recognized another exception to Modesto’s reversal-per-se rule.

The next significant development in state constitutional analysis of prejudice arising from instructional error came after this court’s decision in Carlos v. Superior Court (1983) 35 Cal.3.d 131 [197 Cal.Rptr. 79, 672 P.2d 862], which held that proof of intent to kill was essential to a finding of a felony-murder special circumstance under the 1978 death penalty initiative. In many of the death penalty cases tried under the 1978 law before Carlos, the jury had not been instructed that intent to kill was an element of the special circumstance.

Thus, the court was faced with the question of determining whether, and in what circumstances, the failure to instruct on intent to kill ever could be found harmless. People v. Garcia, supra, 36 Cal.3d 539, addressed that significant issue and concluded that the United States Supreme Court, at the time Garcia was decided, would find such an error to be reversible per se. (Id. at p. 554.) Garcia noted, however, that the plurality opinion in Connecticut v.

Johnson (1983) 460 U.S. 73, 87 [103 S.Ct. 969, 977-978, 74 L.Ed.2d 823] described two exceptions to a rule of per se reversal: “ ‘if the erroneous instruction was given in connection with an offense for which the defendant was acquitted and if the instruction had no bearing on the offense for which he was convicted,’ and ‘if the defendant conceded the issue of intent.’ ” (Garcia, supra, 36 Cal.3d at pp. 554-555.) We further stated that “California experience with a similar test of prejudicial error established in [Modesto] indicates that additional exceptions may be appropriate.” (Id. at p. 555, fn. omitted.) The opinion then describes the Sedeño exception, which permits affirmance where the factual question posed by the omitted instruction necessarily was resolved adversely to the defendant under other, properly given instructions. (People v.

Sedeño, supra, 10 Cal.3d at p. 721.) In addition, after discussing People v. Cantrell, supra, 8 Cal.3d 672, and People v. Thornton, supra, 11 Cal.3d 738, Garcia articulated the Cantrell-Thomton exception to a rule of reversal .per se under California law.

Under this fourth exception, Carlos error would not require reversal “where the parties recognized that intent to kill was in issue, presented all evidence at their command on that issue, and ... the record not only establishes the necessary intent as a matter of law but shows the contrary evidence not worthy of consideration.” (Garcia, supra, 36 Cal.3d at p. 556, fn. omitted.) Finding none of the foregoing exceptions to the reversal-per-se rule to be applicable under the facts of that case, Garcia reversed the felony-murder special circumstance. (Id. at pp. 557-558.) In Garcia we emphasized that the case was decided “on the basis of federal precedent” and that we took “no position on whether, in the absence of controlling federal authority, we would apply the California prejudicial per se test of Modesto or some other, less stringent test.” (People v.

Garcia, supra, 36 Cal.3d at p. 555, fn. 10.) Furthermore, Garcia stated: “We are uncertain whether the United States Supreme Court will endorse the Cantrell-Thornton exception to its apparent rule favoring automatic reversal.” (Id. at p. 556.) Nevertheless, we expressed an intention to apply that exception to those cases “in which the evidence unequivocally and conclusively established intent . . . .” (Id. at pp. 556-557.) Indeed, the same month Garcia was decided, the court considered application of the Cantrell-Thornton exception to Carlos error. (People v.

Whitt (1984) 36 Cal.3d 724, 735 [205 Cal.Rptr. 810, 685 P.2d 1161].) Furthermore, as recently as 1994, the Court of Appeal applied this exception to hold that failure to instruct on an essential element of a crime did not require reversal. (People v. Richie, supra, 28 Cal.App.4th 1347, 1353-1360 [no instruction on the “distinctive uniform” element of

section 2800.1]; see also People v. Smith (1987) 188 Cal.App.3d 1495, 1507-1510 [234 Cal.Rptr. 142], disapproved on other grounds in People v. Davis (1994) 7 Cal.4th 797, 804-805, 810 [30 Cal.Rptr.2d 50, 872 P.2d 591] [applying the Cantrell-Thornton exception to hold nonprejudicial under the California Constitution an instruction that erroneously omitted an element of a special circumstance].) As noted, the Court of Appeal in the present case, relying upon People v.

Richie, supra, 28 Cal.App.4th 1347, concluded that the Cantrell-Thornton exception permits affirmance, even though the trial court failed to instruct . the jury to determine whether Bridgeman and Gurney were peace officers as defined in the Penal Code, because (1) defendant cannot claim lack of notice of an expressly enumerated element of the offense charged, (2) both Bridge-man and Gurney testified regarding that element without contradiction, and (3) defendant presented no contrary testimony. Defendant argues that the Cantrell-Thornton exception has been superseded by more recent federal decisions.

Because those federal cases concern federal constitutional harmless error analysis, however, they cannot govern the

interpretation of the state constitutional standard for assessing prejudice arising from instructional error. We nevertheless determine that in light of recent decisions of this court, a reconsideration of state constitutional harmless error rules, including the Cantrell-Thornton exception, is justified, but such reconsideration leads us to a conclusion different from that urged by defendant.

Notwithstanding the foregoing California decisions that have applied a heightened standard of reversible error to instructional errors removing an element of an offense from the jury’s consideration, several of our more recent cases have analyzed the prejudicial effect of such errors under a Watson standard. (People v. Cummings (1993) 4 Cal.4th 1233, 1312, fn. 54 [18 Cal.Rptr.2d 796, 850 P.2d 1]; People v. Bunyard (1988) 45 Cal.3d 1189, 1228, fn. 27 [249 Cal.Rptr. 71, 756 P.2d 795]; People v. Odie, supra, 45 Cal.3d at p. 415; People v. Murtishaw (1981) 29 Cal.3d 733, 765 [175 Cal.Rptr. 738, 631 P.2d 446]; cf.

People v. Wims (1995) 10 Cal.4th 293, 314-315 [41 Cal.Rptr.2d 241, 895 P.2d 77] [applying a Watson standard to a failure to instruct on an element of a sentencing enhancement].) Although, in applying a Watson standard, these decisions generally have not cited or analyzed the line of cases, discussed above, that applied a more stringent standard to the same type of error, as we shall explain we conclude that these more recent decisions utilized the proper standard under California law for assessing prejudice arising from instructional omissions that withdraw an element of a crime from the jury’s consideration.

To the extent it has been applied to instructional errors affecting an element of a crime, the reversal-per-se rule of Modesto rests, in our view, upon an improper

interpretation and application of the explicit harmless error provision contained in the California Constitution. As noted above (fn. 10, ante),

article VI,

section 13, of the California Constitution specifically addresses the prejudicial effect of instructional “misdirection of the jury.”. That constitutional provision states, in relevant part: “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” In People v.

Wims, supra, 10 Cal.4th at pages 314-315, we observed: “‘The word “misdirection” logically includes every kind of instructional error. It seems manifest that incorrect, ambiguous, conflicting, or wrongly omitted instructions may equally “misdirect” the jury’s deliberations. Nothing in the language or history of

article VI,

section 13, suggests that its requirement of actual prejudice, determined by reference to “the entire cause, including the evidence,” applies to some forms of “misdirection,” but not to others.’ (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 579 [34 Cal.Rptr.2d 607, 882 P.2d 298].)” On its face, therefore, the California Constitution does not support a rule that treats the failure to instruct on an element of a crime (uniquely, among instructional errors) as reversible per se. (Cf. People v.

Cahill (1993) 5 Cal.4th 478, 501 [20 Cal.Rptr.2d 582, 853 P.2d 1037].) Nor did the law preceding Modesto dictate such a rule. In support of its conclusion that failure to instruct on a lesser included offense necessarily amounts to a miscarriage of justice under

article VI,

section 13, of the California Constitution, People v. Modesto, supra, 59 Cal.2d at pages 730-731, cited a number of cases. Although those decisions did apply a reversible-per-se rule for other types of errors, none is directly on point and none compels a holding that such instructional error is reversible per se. {People v. Brommel (1961) 56 Cal.2d 629, 634 [15 Cal.Rptr. 909, 364 P.2d 845] [admission of involuntary confession]; People v. Rogers (1961) 56 Cal.2d 301, 307 [14 Cal.Rptr. 660, 363 P.2d 892] [no express waiver of right to jury trial before guilty plea]; Cooper v.

Superior Court (1961) 55 Cal.2d 291, 302 [10 Cal.Rptr. .842, 359 P.2d 274] [denial of reasonable opportunity to prepare and present defense motion or objection]; People v. Trout (1960) 54 Cal.2d 576, 585 [6 Cal.Rptr. 759, 354 P.2d 231, 80 A.L.R.2d 1418] [admission of involuntary confession]; People v. Holmes (1960) 54 Cal.2d 442, 443-444 [5 Cal.Rptr. 871, 353 P.2d 583] [no express waiver of right to jury trial]; People v. McKay (1951) 37 Cal.2d 792, 798 [236 P.2d 145] [trial by biased jurors]; People v.

Sarazzawski (1945) 27 Cal.2d 7, 11, 17 [161 P.2d 934] [denial of reasonable opportunity to prepare and present motion for new trial]; People v. Mahoney (1927) 201 Cal. 618, 627 [258 P. 607] [misconduct of judge during trial, evidencing partiality]; see also Rogers v. Richmond (1961) 365 U.S. 534, 540-541 [81 S.Ct. 735, 739-740, 5 L.Ed.2d 760] [considering admission of involuntary confession under federal Constitution].) Indeed, People v.

Sarazzawski, supra, 21 Cal.2d at page 18, distinguished instructional errors from the denial of an opportunity to prepare and present a defense motion, noting that the former expressly fall within the scope of the California Constitution’s harmless error provision. Modesto’s only additional analysis of the harmless error issue (59 Cal.2d at p. 731) was disapproved in People v. Sedeno, supra, 10 Cal.3d at pages 720-721. Moreover, in People v.

Cahill, supra, 5 Cal.4th 478, we overruled a series of California decisions beginning in the 1960’s, including Brommel and Trout, cited in Modesto, which had held that whenever an involuntary confession is admitted at a criminal trial, the California Constitution requires reversal of the conviction without regard to the strength of the other evidence in the record. {Cahill, supra, 5 Cal.4th at p. 509, fn. 17.) After reviewing at some length the language and history of

article VI,

section 13 (originally adopted as

article VI,

section AV2, in 1911), we concluded that those decisions were inconsistent with the constitutional provision: “[Although the improper admission of a confession is likely to be prejudicial in many cases, that consequence does not, in our view, justify the judicial adoption of a state-law rule that automatically and monolithically treats all improperly admitted confessions as requiring reversal of the defendant’s conviction; the California constitutional reversible-error provision was adopted for the specific purpose of eliminating just such a prophylactic approach to reversible error.” (Cahill, supra, 5 Cal.4th at p. 503, original italics, fn. omitted.) Observing, further, that this court previously had found reversal unwarranted in the “rare case” in which two invalidly obtained confessions simply were cumulative of the eight valid confessions also introduced at trial (People v.

Jacobson (1965) 63 Cal.2d 319 [46 Cal.Rptr. 515, 405 P.2d 555]), Cahill concluded that there are other settings in which an appellate court can determine with confidence that there is no reasonable probability that the exclusion of the confession would have affected the result. (Cahill, supra, 5 Cal.4th at pp. 503-505.) In such instances, “ ‘a refusal to inquire into the impact, if any, of the confession on the verdict would result in complete abandonment of

article VI, [section 13], of the California Constitution.’ ” (Id. at p. 504, quoting People v.

Jacobson, supra, 63 Cal.2d 319, 330, italics omitted.) We emphasized the broad spectrum of circumstances encompassed by the category of involuntary confessions and reasoned that “an overly broad rule of reversible error that compels the reversal of judgments rendered in fairly tried criminal proceedings on the basis of errors that are unlikely to have affected the outcome, often will have the detrimental effect of eroding the public’s confidence in the criminal justice system”—an important public policy underlying the reversible error provision in the California Constitution. (Cahill, supra, 5 Cal.4th at pp. 508-509, original italics.) Cahill acknowledged that “certain errors, by their nature, result in a ‘miscarriage of justice’ within the meaning of the California harmless error provision requiring reversal without regard to the strength of the evidence received at trial.” (People V.

Cahill, supra, 5 Cal.4th at p. 493 [listing examples]; see also People v.

Ernst (1994) 8 Cal.4th 441, 448-449 [34 Cal.Rptr.2d 238, 881 P.2d 298] [determination of a defendant’s guilt by court trial without an express waiver by the defendant of the right to jury trial always requires reversal].) We held, however, that the admission of an involuntary confession was an error occurring during the presentation of the case to the jury and could be assessed quantitatively, in the context of other evidence presented, to determine whether its admission was prejudicial or harmless. (Cahill, supra, 5 Cal.4th at pp. 502-503, 511; accord, Arizona v.

Fulminante (1991) 499 U.S. 279, 306-312 [111 S.Ct. 1246, 1262-1266, 113 L.Ed.2d 302] [overruling Rogers v. Richmond, supra, 365 U.S. 534].) Like involuntary confessions, instructional errors that have the effect of removing an element of a crime from the jury’s consideration encompass a broad spectrum of circumstances and may be assessed in the context of the evidence presented and other circumstances of the trial to determine whether the error was prejudicial.

The development of various exceptions to the reversible-per-se rule for instructional error affecting an element of a crime, including the Cantrell-Thomton exception, “implicitly revealed the fundamental incompatibility of a reversible-per-se rule with the basic premise of the governing state constitutional provision.” (People v. Cahill, supra, 5 Cal.4th at p. 508.) When a reviewing court examines the record to determine, for example, whether the jury necessarily found the withdrawn element under other, properly given instructions (People v.

Sedeno, supra, 10 Cal.3d at p. 721), or whether the record shows that the omitted element is established as a matter of law and no contrary evidence is worthy of consideration (People v. Garcia, supra, 36 Cal.3d at p. 556), the court is engaging in a type of harmless error analysis that is entirely inconsistent with a rule of automatic reversal.

Rather than perpetuating an ostensible reversible-per-se rule that is riddled with exceptions meant to delineate circumstances in which such instructional error categorically may be deemed harmless—a rule that is fundamentally inconsistent with the language and purpose of the specific California constitutional harmless error provision embodied in

article VI,

section 13, of the California Constitution—we hold, as in Cahill, supra, 5 Cal.4th at pages 509-510, and consistent with the line of decisions beginning with People v. Murtishaw, supra, 29 Cal.3d at page 765, that the prejudicial effect of such error is to be determined, for purposes of California law, under the generally applicable prejudicial error test embodied in

article VI,

section 13. (People v. Watson, supra, 46 Cal.2d 818, 836-837.) C Reviewing the trial court’s constitutional error under the Watson standard, we find no reasonable probability that the outcome of defendant’s trial would have been different had the trial court properly instructed the jury to determine whether Officers Bridgeman and Gurney were peace officers. The prosecution presented unremarkable and uncontradicted evidence that they were employed as police officers by the City of Richmond.

In addition, throughout the trial these officers and other witnesses corroborated that evidence in the course of testifying regarding other issues. At no point during the trial did defendant contest or even refer to the peace officer component of the distinctive uniform element of the crime. Defendant argued at trial that the police car was not distinctively marked as required by the statute but never disputed that it was driven by peace officers.

Furthermore, nothing in the record suggests, and defendant does not assert, that he sought to present or was prevented from introducing evidence regarding the issue in question. Based upon our review of the record, we conclude that no rational juror, properly instructed, could have found that these police officers were not peace officers. “It would, indeed, require fantastic speculation on our part to hold that a reasonable jury could have found otherwise.” (People v.

Odie, supra, 45 Cal.3d at p. 416.) Under these circumstances, requiring that the judgment be reversed on this ground would constitute a miscarriage of justice. We believe that this is a classic example of the type of situation in which California Constitution,

article VI,

section 13, was intended to apply and to bar a court from reversing a judgment. We find the instructional error harmless under the California Constitution. m A As discussed in connection with defendant’s California constitutional claim, the United States Supreme Court has held that jury instructions relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violate the defendant’s due process rights under the federal Constitution. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278 [113 S.Ct. 2078, 2080-2081, 124 L.Ed.2d 182]; Carella v.

California (1989) 491 U.S. 263, 265 [109 S.Ct. 2419, 2420, 105 L.Ed.2d 218] (per curiam)-, People v. Kobrin (1995) 11 Cal.4th 416, 422-423 & fn. 4 [45 Cal.Rptr.2d 895, 903 P.2d 1027] [collecting cases].) Such erroneous instructions also implicate Sixth Amendment principles preserving the exclusive domain of the trier of fact. (Carella v. California, supra, 491 U.S. at p. 265 [109 S.Ct. at p. 2420]; People v.

Kobrin, supra, 11 Cal.4th at p. 423.) “Thus, 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. [Citations.]” (Sullivan v. Louisiana, supra, 508 U.S. at p. 277 [113 S.Ct. at p. 2080]; People v.

Kobrin, supra, 11 Cal.4th at p. 423.) The prohibition against directed verdicts for the prosecution extends to instructions that effectively prevent the jury from finding that the prosecution failed to prove a particular element of the crime beyond a reasonable doubt. (United States v. Gaudin (1995) 515 U.S. 506, 510-511, 522-523 [115 S.Ct. 2310, 2313-2314, 2319-2320, 132 L.Ed.2d 444]; People v. Kobrin, supra, 11 Cal.4th at pp. 423-424; People v.

Hedgecock (1990) 51 Cal.3d 395, 407 [272 Cal.Rptr. 803, 795 P.2d 1260].) We have seen that the trial court’s instruction that Bridgeman and Gurney were peace officers effectively prevented the jury from deciding whether the prosecution proved this component of the distinctive uniform element of the crime set forth in

section 2800.3. In essence, the trial court directed a finding, or a “partial verdict,” for the prosecution on that particular aspect of the crime. Therefore, it is clear under prior decisions that the peace officer instruction violated defendant’s due process rights under the United States Constitution. B The proper application of federal constitutional harmless error review of instructional error affecting the elements of a crime has been evolving for some time. In People v.

Garcia, supra, 36 Cal.3d at page 556, we expressed uncertainty concerning whether the United States Supreme Court would approve the Cantrell-Thornton exception to its then apparent rule favoring reversal per se under the federal Constitution. Subsequent to our decision in Garcia, however, several United States Supreme Court decisions have developed the law in this area. In Rose v.

Clark (1986) 478 U.S. 570, 579-581 [106 S.Ct. 3101, 3106-3108, 92 L.Ed.2d 460], the high court held that an erroneous instruction creating a rebuttable presumption of malice, which impermissibly had lightened the prosecution’s burden of proof on that element, could be harmless if no rational jury could find that the defendant committed the criminal act but did not intend to cause injury—when, under the applicable law, an intent to cause injury would establish malice. (See also Carella v.

California, supra, 491 U.S. 263, 267 [109 S.Ct. 2419, 2421] [erroneous instruction creating a presumption of intent is subject to harmless error analysis if “no rational jury could find the predicate acts but fail to find the fact presumed”].) The court in Rose v. Clark broadly stated, as a general rule, that “if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis.

The thrust of the many constitutional rules governing the conduct of criminal trials is to ensure that those trials lead to fair and correct judgments. Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed.” (Rose v. Clark, supra, 478 U.S. at p. 579 [106 S.Ct. at p. 3106]; see also People v.

Dyer (1988) 45 Cal.3d 26, 62-63 [246 Cal.Rptr. 209, 753 P.2d 1].) A year later, the court held in an obscenity case that an instruction containing an erroneous definition of obscenity was harmless error. {Pope v. Illinois (1987) 481 U.S. 497, 503 [107 S.Ct. 1918, 1922, 95 L.Ed.2d 439].) The court stated in Pope: “To the extent that cases prior to Rose [v.

Clark, supra,] may indicate that a conviction can never stand if the instructions provided the jury do not require it to find each element of the crime under the proper standard of proof [citation], after Rose, they are no longer good authority.” {Id. at p. 503, fn. 7 [107 S.Ct. at p. 1922]; see also People v. Dyer, supra, 45 Cal.3d at p. 64; People v. Lee (1987) 43 Cal.3d 666, 676 [238 Cal.Rptr. 406, 738 P.2d 752]; People v. Avila (1995) 35 Cal.App.4th 642, 659 & fn. 10 [43 Cal.Rptr.2d 853].) In Arizona v.

Fulminante, supra, 499 U.S. 279, a decision holding that the erroneous admission of a coerced confession is not reversible per se, the court elaborated upon harmless error analysis by distinguishing between “trial errors,” which are subject to the general rule that a constitutional error does not require automatic reversal, and “structural” errors, which “defy analysis by harmless-error standards” and require reversal without regard to the strength of the evidence or other circumstances. {Id. at pp. 306-310 [111 S.Ct. at pp 1262-1265].) Fulminante characterized trial errors as those that occur “during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether [the error] was harmless beyond a reasonable doubt.” {Id. at pp. 307-308 [111 S.Ct. at p. 1264].) Structural errors, on the other hand, are “structural defects in the constitution of the trial mechanism . . . affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” {Id. at pp. 309-310 [111 S.Ct. at p. 1205].) The court noted examples of trial errors, including erroneous jury.instructions {id. at pp. 306-307 [111 S.Ct. at pp. 1262-1263]), as well as structural errors, which include the total deprivation of the right to counsel at trial, a biased judge, unlawful exclusion of members of the defendant’s race from a grand jury, denial of the right to self-representation at trial, and denial of the right to a public trial. {Id. at pp. 309-310 [111 S.Ct at pp. 1264-1265].) With regard to such structural errors, Fulminante explained: “ ‘Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.’ ” {Id. at p. 310 [111 S.Ct. at p. 1265], quoting Rose v.

Clark, supra, 478 U.S. at pp. 577-578 [106 S.Ct. at pp. 3105-3106].) In Yates v. Evatt (1991) 500 U.S. 391 [111 S.Ct. 1884, 114 L.Ed.2d 432], overruled on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72, footnote 4 [112 S.Ct. 475, 482, 116 L.Ed.2d 385], the high court returned to the question of the effect of erroneous presumptions and clarified the proper application of harmless error analysis to such errors.

Yates reiterated that the test is “whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” (500 U.S. at p. 403 [111 S.Ct. at p. 1892], quoting Chapman v.

California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 828, 17 L.Ed.2d 705, 24 A.L.R.3d 1065].) The court explained: “To say that an error did not contribute to the verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” (Yates, supra, 500 U.S. at p. 403 [111 S.Ct. at p. 1893].) Such a conclusion may be reached when “the force of the evidence presumably considered by the jury in accordance with the instructions [independently of the improper presumption] is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption.” (Id. at p. 405 [111 S.Ct. at p. 1893].) Subsequently, the United States Supreme Court made clear that at least one type of instructional error may amount to a structural defect in the trial mechanism that requires reversal regardless of the strength of the evidence of the defendant’s guilt.

In Sullivan v. Louisiana, supra, 508 U.S. 275, the trial court gave a constitutionally deficient reasonable doubt instruction. In explaining why Chapman harmless error analysis cannot be applied to such an error, Sullivan stated: “Harmless-error review looks ... to the basis on which ‘the jury actually rested its verdict.’ [Citation.] The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.

That must be so, because to hypothesize a guilty verdict that was never in fact rendered—no matter how inescapable the findings to support that verdict might be—would violate the jury-trial guarantee.” (Sullivan v. Louisiana, supra, 508 U.S. at p. 279 [113 S.Ct. at pp. 2081-2082], original italics.) Because a constitutionally defective reasonable doubt instruction renders it impossible for the jury to return a verdict of guilty beyond a reasonable doubt, “[tjhere is no object, so to speak, upon which harmless-error scrutiny can operate.

The most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt—not that the jury’s actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error.

That is not enough. [Citation.] The Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty.” (Id. at p. 280 [113 S.Ct. at p. 2082], original italics.) Applying the analysis set forth in these decisions, California courts, as well as lower federal courts, have reached diverse results when considering whether instructional error affecting one or more elements of a crime is reversible per se. For example, in People v.

Harris (1994) 9 Cal.4th 407 [37 Cal.Rptr.2d 200, 886 P.2d 1193], the trial court, when giving an instruction setting forth the elements of robbery, improperly defined the term “immediate presence” in connection with the element requiring that the defendant must have taken property from a person or from his or her immediate presence. (Id. at p. 415.) In assessing the prejudicial effect of that instruction, this court unanimously agreed that the error was subject to harmless error analysis (id. at p. 424; id. at p. 440 (cone. & dis. opn. of Mosk, J.); id. at pp. 455-456 (cone. & dis. opn. of Kennard, J.)), and the primary question addressed in the court’s various opinions was the proper manner in which Chapman analysis should be applied in that context.

In People v. Kobrin, supra, 11 Cal.4th 416, we reached a different conclusion with regard to an erroneous failure to have the jury determine the question of materiality as an element of perjury. The trial court instructed the jury that if it found the defendant made certain statements identified in the instruction, “ ‘said statements were material matters within the definition of perjury read to you.’ ” (Id. at p. 421.) Applying the analysis set forth in Sullivan v.

Louisiana, we reasoned that because the instruction specifically removed the issue of materiality from the deliberative process, there was no “object” upon which harmless error scrutiny could operate; attempting to infer a finding of materiality based upon the instructions that were given would have rested “solely on conjecture, effectively substituting this court for the jury as the trier of fact.” (Id. at p. 429.) We further observed that the instructional error prevented the defendant from presenting evidence on the issue, thus making it impossible to determine that the error was harmless beyond a reasonable doubt, because we could not assess “ ‘whether the guilty verdict actually rendered in this trial was surely unattributable to the error.’ ” (Id. at p. 430, quoting Sullivan v.

Louisiana, supra, 508 U.S. at p. 279 [113 S.Ct. at pp. 2081-2082], original italics; see also People v. Cummings, supra, 4 Cal.4th at pp. 1312-1315 [failure to instruct on four of the five elements of robbery is reversible per se].) The federal circuit courts are divided concerning the proper application of harmless error review for instructional errors. An example of the conflicting approaches to the issue is U.S. v. Johnson (4th Cir. 1995) 71 F.3d 139, where the defendant was convicted of armed robbery of a credit union. An essential element of the offense required the credit union to be federally insured.

The prosecution presented uncontradicted evidence of the credit union’s insured status, and the trial court instructed the jury that the credit union robbed by defendant fell within the statutory definition. The defendant unsuccessfully objected to this instruction on the ground that it improperly removed an element of the offense from the jury’s consideration. On appeal, the government conceded that the instruction was erroneous but contended that the error was harmless. A majority of the court disagreed.

Relying upon the defendant’s right to have the jury determine his guilt of every element of the crime, and upon Sullivan v. Louisiana-, supra, 508 U.S. 275, the majority determined that it could not apply Chapman analysis, because the jury was not told that the credit union’s federally insured status was an element of the crime, but instead was instructed that the credit union fell within the statutory definition as a matter of law. At most, the majority reasoned, it could conclude that the jury surely would have found the defendant guilty.

As in Sullivan, the majority opinion found that to so conclude would be speculative and improper. (U.S. v.

Johnson, supra, 71 F.3d at p. 144.) The dissenting opinion, however, characterized the federally insured status of the credit union as a “peripheral, technical requirement of the statute, that which distinguishes the conduct as a federal crime . . . .” (Id. at p. 147 (dis. opn. of Niemeyer, J.).) It noted that all issues regarding the defendant’s criminal conduct were submitted to the jury; the defendant need not have known about the federally insured status of the credit union, and there was incontrovertible evidence of that status.

In the dissent’s view, the majority’s holding establishing a rule of per se reversal “finds in the error a degree of influence that it did not have, and wrongly focuses on the ‘virtually inevitable presence of immaterial error’ rather than on determining whether the trial is rendered fundamentally unfair. . . . There is no question that the trial, as conducted, reliably served as a vehicle for determining whether [the defendant] was guilty or innocent.” (Ibid., citations omitted; compare also U.S. v.

Muse (4th Cir. 1996) 83 F.3d 672, 677-681 [district court’s failure to have the jury find an element of the crime to which the defendant had stipulated amounts to a partial directed verdict requiring reversal per se], with U.S. v. Gonzales (2d Cir. 1997) 110 F.3d 936, 944-947 [instructional omission after same stipulation as in Muse is not necessarily structural error but rather must be evaluated in light of the particular nature, context, and significance of the constitutional violation].) Last term, however, the United States Supreme Court decided two cases— California v.

Roy (1996) 519 U.S. 2 [117 S.Ct. 337, 136 L.Ed.2d 266] (per curiam) and Johnson v. United States (1997) 520 U.S. 461 [117 S.Ct. 1544, 137 L.Ed.2d 718]—that bear on this issue, and we believe that these very recent decisions strongly indicate that instructional errors removing an element from the jury’s consideration are not, as a general matter, structural defects in the trial mechanism that automatically require reversal under the federal Constitution. In California v.

Roy, supra, 519 U.S. 2 [117 S.Ct. 337, 136 L.Ed.2d 266], the trial court committed Beeman error by failing properly to instruct the jury regarding the intent a defendant must have had to be found guilty of aiding and abetting his confederate’s crime. The California Court of Appeal affirmed the conviction after finding the error harmless beyond a reasonable doubt (People v. Roy (1989) 207 Cal.App.3d 642, 645 [255 Cal.Rptr. 214]), and we denied review.

The federal district court denied defendant’s petition for a writ of habeas corpus, agreeing that the error was harmless because, on the facts of the case, no rational juror could have found that the defendant knew the confederate’s purpose and had helped him without also finding that the defendant had intended to help him. The Ninth Circuit Court of Appeals, hearing the matter in bank, reversed the federal district court’s denial of the defendant’s petition for a writ of habeas corpus.

It concluded that the instructional omission could be harmless only if a review of the facts found by the jury establishes it necessarily found the omitted element, and that the record did not show that the jury made such a finding. (Roy v. Gomez (9th Cir. 1996) 81 F.3d 863, 867.) The United States Supreme Court reversed the Ninth Circuit’s decision after concluding that the appellate court had applied a harmless error standard more strict than that required on collateral review of a state court determination. (California v.

Roy, supra, 519 U.S. at pp. 4-6 [117 S.Ct. 337, 136 L.Ed.2d at pp. 270-271] (hereafter Roy).) Roy explained that the Ninth Circuit majority had drawn its harmless error standard from a concurring opinion in Carella v. California, supra, 491 U.S. 263, which set forth the views of several justices concerning the proper manner in which to determine whether an error regarding the use of a presumption was harmless. The court noted that after Carella, however, Brecht v.

Abrahamson (1993) 507 U.S. 619, 637 [113 S.Ct. 1710, 1721-1722, 123 L.Ed.2d 353] held that a federal court reviewing a state court determination in a habeas corpus proceeding ordinarily should apply the harmless error standard enunciated in Kotteakos v.

United States (1946) 328 U.S. 750, 776 [66 S.Ct. 1239, 1253, 90 L.Ed. 1557], which is “whether the error ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Roy further explained that although Brecht recognized that the Kotteakos harmless error standard did not apply to structural errors, Brecht “held that the Kotteakos standard did apply to habeas review of what the Court called ‘trial errors,’ including errors in respect to which the Constitution requires state courts to apply a stricter, Chapman-type standard of ‘harmless error’ when they review a conviction directly.” (Roy, supra, 519 U.S. at p. 5 [117 S.Ct. at p. 338, 136 L.Ed.2d at p. 270].) Roy then expressly concluded that the instructional omission in that case fell within the category of trial errors subject to harmless error review: “This Court has written that ‘constitutional error’ of the sort at issue in Carella [creating an improper conclusive présumption] is a ‘trial error,’ not a ‘structural error,’ and that it is subject to ‘harmless error’ analysis. [Citation.] The state courts in this case applied harmless error analysis of the strict variety, and they found the error ‘harmless beyond a reasonable doubt.’ [Citation.] The specific error at issue here—an error in the instructions that defined the crime—is, as the Ninth Circuit itself recognized, as easily characterized as a ‘misdescription of an element’ of the crime, as it is characterized as an error of ‘omission.’ [Citation.] No one claims that the error at issue here is of the ‘structural sort’ that ‘ “[defies] analysis by ‘harmless error’ standards.” ’ [Citation.] The analysis advanced by the Ninth Circuit, while certainly consistent with the concurring opinion in Carella, does not, in our view, overcome the holding of Brecht. . . that for reasons related to the special function of habeas courts, those courts must review such error (error that may require strict review of the Chapman-type on direct appeal) under the Kotteakos standard.” (Roy, supra, 519 U.S. at pp. 5-6 [117 S.Ct. at p. 339, 136 L.Ed.2d at pp. 270-271].) On remand from the court’s decision in Roy, a majority of the Ninth Circuit adopted the analysis of the former dissenting opinion to that court’s prior in bank decision, and held that the failure to instruct on intent was harmless under the Kotteakos standard of review. (Roy v.

Gomez (9th Cir. 1997) 108 F.3d 242, 243 [incorporating Roy v. Gomez, supra, 81 F.3d 863, 870-871], cert. den. sub nom. Roy v. Maddock (1997)_U.S._[118 S.Ct. 196, 139 L.Ed.2d 134].) The new majority opinion held inapplicable the strict standard set forth in Carella's concurrence and, by extension, in Justice Scalia’s concurring opinion in Roy (see fn. 17, ante), which asks whether a rational jury necessarily found certain facts that were equivalent to the omitted findings.

Instead, the new majority opinion reasoned, the court must review the entire record in order to determine the effect of the error; in Roy, that meant asking whether the trial court’s failure properly to instruct on intent in the jury instruction on aiding and abetting had a substantial and injurious effect upon the jury’s verdict. After considering the evidence before the jury and its other findings, the majority found no reasonable probability that the defendant did not assist his confederate with the intent to further the crime.

The new dissenting opinion in Roy adhered to the standard set forth in Justice Scalia’s concurring opinions in Carella and Roy and would have held that, because the jury’s actual findings were not equivalent to a finding of intent to further the crime, the conviction should have been set aside. (Roy v. Gomez, supra, 108 F.3d at pp. 243-246 (dis. opn. of Hug, C. J.).) Although the United States Supreme Court’s decision in Roy considered the proper harmless error standard to be applied on collateral review, we find its analysis pertinent here.

In holding that the Kotteakos standard for collateral review of constitutional errors governed the instructional omission in Roy, the high court found that the error fell within the general category of “trial errors” that are subject to Chapman harmless error review on direct appeal. The majority opinion in Roy also declined to embrace the conclusion in Justice Scalia’s concurring opinion that the error could be deemed harmless only in the very narrow, circumscribed situations described therein.

In our view, Roy's analysis indicates that instructional errors—whether misdescriptions, omissions, or presumptions—as a general matter fall within the broad category of trial errors subject to Chapman review on direct appeal. The Ninth Circuit’s majority opinion on remand is consistent with that view. Furthermore, as noted above, another United States Supreme Court decision handed down last term lends further support to the conclusion we reach. Johnson v. United States, supra, 520 U.S. 461 [117 S.Ct. 1544, 137 L.Ed.2d 718], involved a federal perjury prosecution.

At the close of the trial, the district court instructed the jury that the element of materiality was a question for the judge to decide, and that he had determined that the defendant’s statements were material. The defendant did not object to that instruction, and the jury returned a verdict of guilty. On appeal, however, the defendant argued that the trial judge’s failure to submit materiality to the jury rendered her conviction invalid under United States v.

Gaudin, supra, 515 U.S. 506, a decision in which the United States Supreme Court had held, after the trial in Johnson, that the materiality of a false statement must be submitted to the jury rather than decided by the trial judge. Because the defendant had not objected to the instruction in the district court, however, rule 52(

b) of the Federal Rules of Criminal Procedure (18 U.S.C.) precluded reversal unless the district court’s instruction constituted “plain error” that “affect[ed] substantial rights” and “ ‘ “ ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.’ ” ’ ” {Johnson v.

United States, supra, 520 U.S. at p. 467 [117 S.Ct. at p. 1549, 137 L.Ed.2d at p. 727].) After first concluding that the instructional error was “plain,” Johnson considered the defendant’s argument that the error also affected “substantial rights” because the failure to submit an element of the offense to the jury is structural error. The court responded: “A ‘structural error,’ we explained in Arizona v. Fulminante, is a ‘defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself,’ 499 U.S., at 310.

We have found structural errors only in a very limited class of cases: See Gideon v. Wainwright, 372 U.S. 335 (1963) (a total deprivation of the right to counsel); Tumey v. Ohio, 273 U.S. 510 (1927) (lack of an impartial trial judge); Vasquez v. Hillery, 474 U.S. 254 (1986) (unlawful exclusion of grand jurors of defendant’s race); McKaskle v. Wiggins, 465 U.S. 168 (1984) (the right to self-representation at trial); Waller v. Georgia, 467 U.S. 39 (1984) (the right to a public trial); Sullivan v.

Louisiana, 508 U.S. 275 (1993) (erroneous reasonable-doubt instruction to jury), [ft It is by no means clear that the error here fits within this limited class of cases. Sullivan v. Louisiana, the case most closely on point, held that the erroneous definition of ‘reasonable doubt’ vitiated all of the jury’s findings because one could only speculate what a properly charged jury might have done. Id., at 280.

The failure to submit materiality to the jury, as in this case, can just as easily be analogized to improperly instructing the jury on an element of the offense [citing Yates, Carella, Pope, and Rose, all supra], an error which is subject to harmless-error analysis, as it can be to failing to give a proper reasonable-doubt instruction altogether. Cf. California v.

Roy, 519 U.S. 2, 5 [136 L.Ed.2d [266], 117 S.Ct. [337]] (1996) (‘The specific error at issue here—an error in the instruction that defined the crime—is ... as easily characterized as a “misdescription of an element” of the crime, as it is characterized as an error of “omission” (Johnson v.

United States, supra, 520 U.S. at pp. 468-469 [117 S.Ct. at pp. 1549-1550, 137 L.Ed.2d at p. 728], italics added.) After providing the above explanation, the court in Johnson ultimately concluded that it was unnecessary to- resolve definitively the structural error issue, because it concluded that the materiality instruction did not “seriously affect ... the fairness, integrity or public reputation of judicial proceedings” and therefore did not require reversal. (Id. at pp. 469-470 [117 S.Ct. at p. 1550, 137 L.Ed.2d at p. 729].) In reaching the latter conclusion, the court observed that the evidence supporting materiality was overwhelming and essentially uncontroverted at trial and on appeal, and that the defendant had presented no plausible argument that her false statement somehow was not material.

Johnson concluded: “On this record there is no basis for concluding that the error ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.’ Indeed, it would be the reversal of a conviction such as this which would have that effect. ‘Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.’ [Citation.] No ‘miscarriage of justice’ will result here if we do not notice the error, [citation], and we decline to do so.” (Ibid.) Although Johnson did not decide whether the materiality instruction amounted to structural error, we agree with the Attorney General’s position that Johnson suggests that an instruction to the jury that an element of the crime has been established generally is not reversible per se.

A recent California Court of Appeal decision reached the same conclusion with regard to the meaning and effect of the United States Supreme Court’s decision in Johnson. In People v.

Early (1997) 56 Cal.App.4th 753 [65 Cal.Rptr.2d 527], the defendant was charged with first degree burglary, which requires that the structure entered be “an inhabited dwelling house.” When instructing the jury on the elements of burglary, the trial court stated that the particular house entered by the defendant qualified as a dwelling house within the meaning of the statute, and that the jury did not have to “ ‘worry about the kind of structure.’ ” (Id. at p. 756.) The Court of Appeal concluded that the trial court’s instruction directed a partial verdict upon an element of first degree burglary and thus amounted to constitutional error.

Relying primarily upon Johnson, the court held that the error was subject to harmless error analysis: “In the present case, as in Johnson, the evidence was uncontroverted at trial, and is not challenged on this appeal, that the structure entered was an ‘inhabited dwelling house.’ As in Johnson, the same error occurred: In Johnson, the trial court removed the element of ‘materiality’ from the jury’s consideration; here, the trial court removed the element of ‘inhabited dwelling house’ from the jury’s consideration.

In Johnson, upon a review of the record, the court concluded that the error was not one that ‘ “ ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.”” [Citation.] Application of this standard is wholly inconsistent with a reversible per se rule.” (People v.

Early, supra, 56 Cal.App.4th at p. 760, fn. omitted.) The Court of Appeal went on to find that the instructional error was harmless, because the record demonstrated that no reasonable juror could have found that the structure entered by defendant was anything other than an inhabited dwelling house. {Ibid.) Defendant argues that Early is mistaken in its premise that application of the plain error doctrine is inconsistent with a rule of reversible-per-se error.

According to defendant, Johnson is based solely upon the federal procedural rule that a failure to object in the district court may result in a waiver of constitutional rights—even rights that otherwise might lead to automatic reversal. We agree that Johnson’s holding is based upon a procedural rule, but the applicable rule required the court to consider whether the error seriously affected the fairness or integrity of judicial proceedings.

Early correctly determined that Johnson’s conclusion that the error did not seriously affect the “integrity” or “fairness” of the trial is inconsistent with the view that the error affected the structural integrity of the trial process {Arizona v. Fulminante, supra, 499 U.S. at pp. 309-310 [111 S.Ct. at pp. 1264-1265]) or rendered the trial fundamentally unfair {Rose v. Clark, supra, 478 U.S. at p. 57.7 [106 S.Ct. at pp. 3105-3106]) so as to require automatic reversal for structural error.

Defendant also attempts to distinguish Johnson on the ground that the law existing at the time of the trial in Johnson did not require the jury to determine materiality, whereas in this case existing law required an instruction on the peace officer component of the crime. Defendant cites no authority, however, suggesting that the significance of an error that removes an element of an offense from the jury’s consideration differs depending upon whether the law at the time of trial required that element to be submitted to the jury.

In either situation, the error precludes the jury from deciding an essential element of the crime and thus violates the defendant’s due process rights, and the effect upon the structural integrity and fairness of the trial process is the same.

The foregoing United States Supreme Court decisions lead us to conclude that an instructional error that improperly describes or omits an element of an offense, or that raises an improper presumption or directs a finding or a partial verdict upon a particular element, generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal under the federal Constitution. Indeed, the high court never has held that an erroneous instruction affecting a single element of a crime will amount to structural error (see U.S. v. North (D.C.

Cir. 1990) 910 F.2d 843, 893 [285 App.D.C 343], superseded in part on other grounds, 920 F.2d 940), and the court’s most recent decisions suggest that such an error, like the vast majority of other constitutional errors, falls within the broad category of trial error subject to Chapman review. We have no occasion in this case to decide whether there may be some instances in which a trial court’s instruction removing an issue from the jury’s consideration will be the equivalent of failing to submit the entire case to the jury—an error that clearly would be a “structural” rather than a “trial” error. (See Rose v.

Clark, supra, 478 U.S. at pp. 577-578 [106 S.Ct. at pp. 3105-3106] [total deprivation of the right to a jury trial is structural error].) Contrary to defendant’s argument that the peace officer instruction resulted in a total deprivation of his right to a jury trial, nothing concerning the trial court’s error takes it outside the category of ordinary trial error whose prejudicial effect may be assessed in light of the entire record.

Unlike the deficient reasonable doubt instruction in Sullivan, which undermined each and every finding underlying the guilty verdict, the peace officer instruction in the present case affected only one aspect of one of the eight elements of the offense defined in

section 2800.3. Like the directed finding on materiality in Johnson, the trial court’s instruction that Bridgeman and Gurney were peace officers was based upon overwhelming and uncontradicted evidence, and defendant has made no attempt, either in the trial court or on appeal, to argue that the officers were not peace officers. Furthermore, unlike the directed finding regarding materiality considered in People v. Kobrin, supra, 11 Cal.4th at pages 429-430, the instructional error in the case before us did not prevent defendant from presenting evidence concerning a contested element of the crime.

Accordingly, the error did not affect the content of the record and does not impair our ability to evaluate the error in light of the record. (Rose v. Clark, supra, 478 U.S. at p. 579, fn. 7 [106 S.Ct. at p. 3107].) Moreover, the materiality issue removed from the jury’s consideration in Johnson and Kobrin had much greater relevance to the defendant’s culpability than did the peace officer issue in this case.

The trial court’s removal of the uncontested peace officer component from the jury’s consideration cannot be considered to have rendered defendant’s trial fundamentally unfair or prevented the trial from reliably serving its function as the means for determining defendant’s guilt or innocence. Nor did the trial court’s action affect the framework within which the trial proceeded. The instructional error was not structural and is not reversible per se.

C Having decided that the trial court’s instructional error is amenable to harmless error analysis, we proceed to consider whether it appears beyond a reasonable doubt that the error did not contribute to this jury’s verdict. (Yates v. Evatt, supra, 500 U.S. at pp. 402-403 [111 S.Ct. at pp. 1892-1893]; Chapman v. California, supra, 386 U.S. at p. 24 [87 S.Ct. at p. 828].) One situation in which instructional error removing an element of the crime from the jury’s consideration has been deemed harmless is where the defendant concedes or admits that element. (Connecticut v.

Johnson, supra, 460 U.S. at p. 87 [103 S.Ct. at pp. 977-978]; U.S. v. Rogers (11th Cir. 1996) 94 F.3d 1519, 1526-1527; see Carella v.

California, supra, 491 U.S. 263, 270 [109 S.Ct. 2419, 2423] (cone. opn. of Scalia, J.) [automatic reversal is not required if an improper conclusive presumption affected an “element of the crime that the defendant in any case admitted”].) In Rogers, supra, 94 F.3d 1519, the Eleventh Circuit Court of Appeals held that a district court’s failure to instruct the jury on one element of an offense was harmless error where the defendant’s testimonial admission at trial was sufficient to establish that element.

Although defendant in the present case did not affirmatively admit—through testimony or by stipulation, for example—that Bridgeman and Gurney were peace officers, several circumstances indicate that defendant effectively conceded this issue. As noted above, the record indicates that defendant requested the CALJIC instruction that included th

[…]