THE PEOPLE, Plaintiff and Respondent, v. WILLIAM GONZALES HARRIS, Defendant and Appellant, 9 Cal. 4th 407

Opinion LUCAS, C. J. Defendant William Gonzales Harris was convicted by a jury of first degree murder, kidnapping for robbery, kidnapping, second degree robbery, second degree (commercial) burglary (two counts), first degree (residential) burglary, grand theft of a firearm, possession of a concealed firearm in a vehicle, fraudulent use of an automatic teller machine (ATM) access card (two counts), and auto theft (two counts). (Pen. Code, §§ 187, 209, subd. (b), 207, 211, 212.5, 459, 460, 487, former subd. 3, 12025, subd. (a), 484g; Veh.

Code, § 10851.) He was sentenced to state prison for 25 years to life for first degree murder, with an aggregate determinate sentence of 28 years 8 months for the remaining offenses. Among other claims, defendant contended on appeal that the trial court erred in instructing the jury on the “immediate presence” element of robbery. (Pen. Code, §211.) Pursuant to our holding in People v. Hayes (1990) 52 Cal.3d 577 [276 Cal.Rptr. 874, 802 P.2d 376] (Hayes), which case was decided after defendant’s trial but while this matter was pending on appeal, the Court of Appeal found instructional error.

The court went on to find the error prejudicial to the robbery, kidnapping for robbery, and first degree murder convictions. In all other respects the judgment was affirmed. As will be explained, the Court of Appeal correctly concluded under our holding in Hayes that the jury was misinstructed on the “immediate presence” element of robbery. We granted the People’s petition for review to consider the soundness of the appellate court’s further conclusion that the instructional error was prejudicial.

As will appear, we conclude the Court of Appeal erred in reversing defendant’s convictions of robbery, kidnapping for robbery, and first degree murder. I On the morning of Tuesday, January 16, 1990, defendant, who was 21 years old at the time, and 3 companions (Shon Maple, age 20; Valdez F., age 15; and Frank P., age 14) drove in defendant’s car from Stockton to the Sacramento area to break into and steal cars and car stereos. They stole stereo equipment, various other items, and a Mercury Cougar, which they drove back to Stockton.

Later that evening, Maple, Valdez F. and Frank P. drove around Stockton in the stolen Mercury while defendant remained at Maple’s house. During this foray they spotted a Mazda RX7 parked in an office complex parking lot. They stopped to examine the vehicle; while they were looking inside the car alarm went off. The owner of the Mazda, Martin Atherton, emerged from an office building, looked in the direction of the group, and told them he was going to call the police.

The three chased Atherton back into his office building, hit him in the head with a flashlight to subdue him, then obtained his car keys from his person and placed him inside the Mazda. Outside of Atherton’s presence, Maple told Frank P., “We have to kill him.” Frank P. voiced an objection. Valdez F. suggested they “take him to [defendant].” The three then kidnapped Atherton and returned in both cars to Maple’s house. Upon arriving, Maple and Valdez F. entered the house while Frank P. stood guard over Atherton in the Mazda.

By defendant’s own testimony, he gave Maple handcuffs to restrain the victim, assertedly because he did not want any of “the guys out of [his] group” getting hurt by Atherton. He also gave Maple a blindfold to use on Atherton because he did not want the victim to see or identify him. Defendant waited until Maple returned to the Mazda and handcuffed and blindfolded Atherton before himself going outside and getting into the driver’s side of the vehicle.

Defendant testified that Atherton was seated next to him in the passenger seat of the Mazda and that Valdez F., who was also inside the car, handed him Atherton’s wallet when he (defendant) asked for the victim’s identification. Defendant testified he removed the money from Atherton’s wallet and pocketed it. Atherton’s wallet also contained several credit cards. Maple next told defendant he wanted to return to Atherton’s office building to clean up blood from the prior struggle.

Defendant thought it would be better if the entire group returned together to Atherton’s office; he testified on direct examination that he wanted to keep the victim “on the move.” Defendant drove Atherton’s Mazda with Valdez F. as a passenger and the victim still blindfolded and handcuffed in the back of the car. Maple drove the stolen Mercury with Frank P. as a passenger. When they arrived at the victim’s office complex, defendant, Maple and Frank P. went inside, using Atherton’s key, while Valdez F. stood guard over Atherton in the parking lot.

Defendant, himself a former security guard, testified he had seen a Bay Alarm card in the victim’s wallet and planned to straighten up the offices, lock them, and then “call in” Atherton’s security code number as he imagined the victim routinely would have done. Maple tried to clean up the blood; then he found a box containing cash and took some of it. Defendant, Maple and Frank P. returned to the parking lot. After Maple determined that Atherton’s key fit the neighboring office building, defendant, Maple, and Valdez F. went inside that building while Frank P. remained behind guarding Atherton.

According to defendant’s testimony, the three “broke into small groups” and proceeded to loot a floor of “fancy executive offices.” Among the items removed to the vehicles were five briefcases, electronic equipment and a large green safe. Maple returned to the first office building to retrieve a compact disc player. Defendant admitted the group then drove to Atherton’s residence for the purpose of stealing additional items. The victim, still blindfolded and handcuffed, was transferred to the Mercury.

Maple drove that vehicle, with Frank P. as a passenger, while defendant continued driving the Mazda, with Valdez F. as his passenger. Maple parked the Mercury around the comer from Atherton’s residence. Frank P. remained outside guarding the victim while defendant, Maple, and Valdez F., again using a key from Atherton’s key ring, entered the victim’s home and looted it. “Two or three suitcases” full of items were removed from the victim’s residence to the vehicles, including firearms, ammunition, leather jackets, and ATM cards from Atherton’s safe, which defendant retained in his possession.

Defendant cautioned the others not to ransack the home, explaining that a friend or relative of the victim might possibly have a key and come looking for him. Defendant next directed the group to an isolated park infrequently patrolled by the police in order to examine the loot and give himself more time to “think.” Defendant took out a nine-millimeter semiautomatic pistol, commenting that it was “a beauty.” The evidence suggested defendant retained possession of the pistol on his person during the remainder of the episode.

According to Frank P.’s testimony, defendant next threatened Atherton in order to obtain the access codes for his ATM cards, telling the victim he would “probably never see or hear” defendant again. The group then proceeded to two branches of Atherton’s bank where defendant unsuccessfully attempted to withdraw money from Atherton’s accounts, finding the ATM’s out of cash at that late hour. With daylight approaching, the group once again returned to Maple’s house to drop off the guns. Defendant testified: “These are just kids.

I respect firearms and I know how to treat them properly, but these are just kids and they don’t.” The group next followed Maple’s suggestion that they take the victim to a motel room. Defendant selected the motel. The motel clerk who registered Maple and defendant estimated they arrived between 7:30 and 8 a.m. on January 17. (Computer records reflected the computer in Atherton’s office was last used at 3:08 a.m. on the 17th.) Defendant paid for the room with cash from Atherton’s wallet. Inside the motel room, Atherton’s head wounds were cleaned and his blindfold removed to permit him to rinse his eyes.

During this time defendant and the others hid their faces from his view. Afterwards, the victim, still in handcuffs, was again blindfolded. Defendant made several excursions from the motel while Atherton was being held captive there. On each trip he drove the victim’s Mazda; in some instances Maple, Valdez F. or Frank P. accompanied him, although at least one in the group always remained behind to guard Atherton. During these trips, defendant used Atherton’s ATM and American Express cards to obtain cash from the victim’s accounts and purchase food and various other items at a shopping mall.

According to defendant, throughout their stay at the motel it was he who made the decisions for the group and determined their next moves. Defendant fraudulently obtained over $1,600 in the aggregate from Atherton’s various bank and credit card accounts. At some point defendant and Valdez F. left the motel and returned to Maple’s house. Later that same night, Maple telephoned his house, then left the motel with the victim and Frank P., driving in the Mercury back to his residence. According to Frank P., Maple went inside briefly, leaving him guarding the victim, then came back outside.

When Valdez F. came out with a shotgun (which had been stolen from Atherton’s home) wrapped in a sleeping bag and placed it in the trunk of the Mercury, Maple momentarily ran back inside the home (defendant was still present in the residence). Maple, Valdez F. and Frank P. then drove off with Atherton, Maple explaining to the others that defendant either would not wake up or did not want to come. Maple drove to a rural area in Alameda County. En route, Valdez F. directed Atherton to give him his wristwatch. The victim complied. Maple stopped the car and everyone got out.

Maple removed Atherton’s handcuffs and blindfold. Valdez F. took the shotgun from the trunk, directed Atherton to “go right about over there,” and shot him in the back, causing the victim to fall down a hill. Valdez F. walked down the hill and shot Atherton a second time. He and Maple then dragged Atherton’s body farther down the hill and hid it under the sleeping bag. When Maple, Valdez F. and Frank P. returned to Maple’s house, defendant was allegedly just awakening.

Valdez F. told defendant, “we did it.” When defendant asked why, Valdez F. explained they “got tired of the man being around.” Defendant replied: “So you just get tired of him being around [and] you go waste the fucker. We could have kept him a couple more days or a little bit longer explaining why he hasn’t been at work for a couple days, why things were messed up.” Defendant took the shotgun and some shotgun shells and, along with Maple, returned to the murder scene and better concealed Atherton’s body.

Upon returning to Stockton in the early morning of January 18, defendant and Maple again used Atherton’s bank cards to obtain additional cash from his accounts which they used to make various purchases. The group’s demise unfolded when they attempted to sell the victim’s car and the prospective buyers, recognizing the vehicle from a newspaper account of the disappearance of Atherton and his Mazda, notified police. Upon his arrest, defendant had Atherton’s wallet, identification, American Express and bank ATM cards in his possession.

Thereafter, defendant gave three statements to police, one during a four-hour interview that was transcribed by a court reporter and later read to the jury. Defendant also led police to the murder scene where Atherton’s body was recovered. II As defined in Penal Code

section 211, and as essentially incorporated in CALJIC No. 9.40 (the key robbery instruction given below), “[jobbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (Italics added.) Relying on the holdings in People v. Miramon (1983) 140 Cal.App.3d 118,124 [189 Cal.Rptr. 432], and People v.

Brown (1989) 212 Cal.App.3d 1409, 1419 [261 Cal.Rptr. 262] (hereafter Miramon-Brown), the trial court below further defined the element of “immediate presence” for the jury as follows: “The act of robbery is deemed to have occurred within the immediate presence of the victim as long as the victim perceived any overt act connected with the commission of the offense. Any and all sensory perceptions of the victim are to [be] considered in determining presence.” (Italics added.) In Hayes, supra, 52 Cal.3d 577, we rejected the Miramon-Brown definition of immediate presence.

We observed that, in contrast to that instruction which required that the victim “ 'perceive[] any overt act connected with the commission of the offense,’ ” “[t]he generally accepted definition of immediate presence ... is that ' “[a] thing is in the [immediate] presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.” ’ [Citations.] Thus, the Court of Appeal stated in People v.

Bauer (1966) 241 Cal.App.2d 632, 642 [50 Cal.Rptr. 687], that “immediate presence” ' “must mean at least an area within which the victim could reasonably be expected to exercise some physical control over [her] property.” ’ (Quoting from Spencer v. United States [(D.C. Cir. 1940) 116 F.2d 801 (73 App.D.C. 98)], at p. 802.)” (Hayes, supra, 52 Cal.3d at pp. 626-627.) We reasoned in Hayes that a jury charged with the “perception of any overt act” definition of “immediate presence” might improperly view the forcible acts themselves as “overt acts” satisfying the “immediate presence” requirement.

We concluded that instructing a jury with the Miramon-Brown definition effectively rendered the “immediate presence” element “devoid of all independent meaning, making it redundant with the ‘force or fear’ element.” (Hayes, supra, 52 Cal.3d at p. 628.) Because the robber in Hayes had assaulted and killed his victim, the jury could reasonably have concluded under the erroneous instruction that the “immediate presence” requirement was satisfied by the fatal assault, itself an “overt act connected with the commission of the offense” that unquestionably occurred in the victim’s immediate presence.

We expressly disapproved the Miramon-Brown instruction, adopting in its stead the “prevailing American rule” definition of “immediate presence” described above. (Hayes, supra, 52 Cal.3d at p. 628, fn. 10; see also People v. Webster (1991) 54 Cal.3d 411, 440 [285 Cal.Rptr. 31, 814 P.2d 1273] (Webster).) The Court of Appeal in the present case correctly concluded that the trial court’s special instruction defining “immediate presence” was the functional equivalent of the Miramon-Brown instruction we disapproved in Hayes.

The trial court below can hardly be faulted for applying the expansive definition of “immediate presence” set forth in People v. Miramon, supra, 140 Cal.App.3d at page 124, and People v. Brown, supra, 212 Cal.App.3d at page 1419, cases that were “good law” when defendant was tried in the summer of 1990.

Nonetheless, because the faulty instruction, which failed to give appropriate effect to the legislative definition of the “immediate presence” element of robbery, was specifically disapproved in Hayes while defendant’s appeal was pending, he is entitled to the benefit of our holding in that case. (See, e.g., People v. Ballard (1969) 1 Cal.App.3d 602, 606 [81 Cal.Rptr. 742].) Accordingly, we affirm that portion of the decision of the Court of Appeal finding the trial court erred in specially defining “immediate presence” for the jury.

III The question remains whether the instructional error was prejudicial to the first degree murder, kidnapping for robbery, and robbery convictions. As a threshold matter, the Attorney General urges us to apply the Watson “miscarriage of justice” standard. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) However, as we explained in Hayes, “[b]ecause the jury was misinstructed on an element of the offense of robbery, reversal of the robbery conviction is required unless we are able to conclude that the error was harmless beyond a reasonable doubt. (People v.

Hernandez (1988) 46 Cal.3d 194, 210 [249 Cal.Rptr. 850, 757 P.2d 1013]; People v. Odle (1988) 45 Cal.3d 386, 414-415 [247 Cal.Rptr. 137, 754 P.2d 184].)” (Hayes, supra, 52 Cal.3d at p. 628; see Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065] (Chapman).) The prosecution in this case essentially asked the jury to convict defendant of robbery, either as a direct perpetrator or as an aider and abettor, based on the taking of any one or all of the following items:

(1) Atherton’s car keys and car;

(2) Atherton’s wallet and its contents; (3) the items from Atherton’s office; or (4) the items from Atherton’s house. The Court of Appeal expressly concluded that the taking of Atherton’s car, and by implication the taking of his wallet and its contents, “as a matter of law” (to use the appellate court’s phraseology) satisfied the requirement for robbery that property be forcibly taken from the victim’s “person or immediate presence,” a conclusion we agree with as explained more fully below.

The appellate court found the two remaining “taking theories” advanced by the People more troublesome: the taking of items from Atherton’s office, and the taking of items of personal property from his home. The Court of Appeal reasoned: “[W]e cannot be certain the jury based its general robbery verdict on [the takings directly from Atherton’s person]. Takings that defendant directly perpetrated at Atherton’s offices and house were also presented to the jury as a basis for convicting defendant of robbery.

During the office takings, Atherton was held captive in his car in the office parking lot; it was estimated he was 35 feet from the first office and 80 feet from the second. . . . During the house takings, Atherton was again captive in a parked car, this time ‘around the comer of the same block’ apparently six or seven houses away. ...” The Court of Appeal was clearly troubled by the respective distances between the home and office premises from which the “takings” were accomplished, and the locations of the parked cars in which the victim was being restrained while the lootings took place.

The court at one point in its opinion appeared to be applying the Chapman standard when it concluded: “With respect to the office and house takings, ‘a reasonable finder of fact could conclude either that the property was not so distant as to be beyond the victim’s control and protection, or that it was too distant to be in the victim’s immediate presence at the time the force was used.

Because the issue of immediate presence could reasonably have been decided either way, we are unable to declare that the misinstruction on this element of robbery was harmless beyond a reasonable doubt.’ ” (Fns. omitted; quoting Hayes, supra, 52 Cal.3d at p. 629.) The Court of Appeal further indicated, however, that it was placing principal reliance on this court’s opinion in People v. Green (1980) 27 Cal.3d 1 [164 Cal.Rptr. 1, 609 P.2d 468] (Green) in support of its conclusion that the Miramon-Brown instructional error was prejudicial.

The court reasoned that two of the four “taking theories”—the taking of items from Atherton’s offices, and the taking of items from his home—were rendered “legally impermissible theories of guilt” as a result of the misinstruction. The court concluded that because those two taking theories “cannot be resolved in favor of guilt as a matter of law,” reversal is required since “the reviewing court cannot determine from the record on which theory the jury relied.” (Paraphrasing Green, supra, 27 Cal.3d at p. 69.) For reasons next explained, we conclude that the Court of Appeal’s prejudice analysis was flawed.

Critically, it erred in applying Green’s rule of reversal to the facts of this case. In Green, supra, 27 Cal.3d 1, the defendant was convicted of first degree murder, robbery, and kidnapping. Special circumstance allegations that the murder was committed during the commission of robbery and kidnapping were found true.

The portion of Green arguably relevant here (by analogy) involved the kidnapping count, the related kidnapping special circumstance, and the “asportation” requirement for kidnapping. (Id. at pp. 62-74.) In Green we identified three distinct segments of asportation of the victim upon which the jury could have based its kidnapping verdict. (Green, supra, 27 Cal.3d at pp. 62-63.) As regards the first segment, we found the trial court misinstructed the jury on the law: the facts were “undisputed” that fraud, not force or fear, was the means by which the victim was induced to go on the automobile ride that constituted the first segment of asportation.

TTie Attorney General conceded it was therefore error to instruct the jury that asportation by fraud alone could support a conviction of simple kidnapping in California. (Id. at pp. 63-64.) Regarding the second segment of asportation, driving the victim to the murder scene, we found no error.

The third occurred when the victim was forced to walk from the parked car to the spot where she was murdered. (Id. at pp. 63, 65.) We found that the distance she walked, about 90 feet, was “insufficient as a matter of law” to satisfy the asportation requirement for kidnapping and support the verdict finding defendant guilty of that offense. (Id. at p. 67.) Having found clear legal error as to two of the three possible segments of asportation in Green, we went on to consider whether such errors prejudiced the kidnapping verdict.

We could not determine from the record whether the jury had based its verdict on either of the “legally insufficient segments of [the victim’s] asportation.” (Green, supra, 27 Cal.3d at p. 67, italics added.) The jury instruction the court had given regarding the definition of asportation for kidnapping advised the jury only that the asportation of the victim had to be “ ‘for a substantial distance, that is, a distance more than slight or trivial.’ ” (Green, supra, 27 Cal.3d at p. 68, quoting People v.

Stanworth (1974) 11 Cal.3d 588, 601 [114 Cal.Rptr. 250, 522 P.2d 1058].) Nothing in the instructions had informed the jury in Green that, as a matter of law, neither the first nor third segments of asportation could validly have supported a kidnapping verdict.

Under those circumstances, we applied the following rule in Green: “[W]hen the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.” (27 Cal.3d at p. 69, italics added.) In using the terminology “legally incorrect theory” in Green, we were therefore referring specifically to instructional error, or a “legally incorrect" theory of the case which, if relied upon by the jury, could not as a matter of law validly support a conviction of the charged offense.

Under the facts of the present case, it cannot be said that the misinstruction with the Miramon-Brown characterization of “immediate presence” resulted in the presentation to the jury of a “legally insufficient” theory of the case within the meaning of Green. Here we are able to affirmatively conclude that under any of the four “taking theories” advanced by the prosecution, the distances involved do not, as a matter of law, violate the standards defining “immediate presence” that we adopted for California robbery prosecutions in Hayes, supra, 52 Cal.3d 577. (Cf.

Webster, supra, 54 Cal.3d at pp. 440-441.) In this regard Green is distinguishable, and its rule of reversal inapplicable here. The taking of the victim’s car keys, car and wallet We turn first to the prosecution’s theory that defendant was guilty of robbery, either as a direct perpetrator or as an aider and abettor, based on the taking of Atherton’s car keys and car, and his wallet and its contents.

Defendant was not present when Maple, Valdez F. and Frank P. first accosted Atherton, beat him, obtained his car keys from his person, and forcibly abducted him, taking him in his own car back to Maple’s house where defendant waited. Frank P. testified he personally removed the car keys, as well as a “beeper” which operated the Mazda’s car alarm, from Atherton’s person at the time he was being forcibly subdued.

And, although it was not established with certainty who first removed the wallet from Atherton, it was taken from his person at some point between the time Atherton was first abducted, beaten, and placed in his car by the threesome, and the time at which defendant, while seated next to the victim in the Mazda in front of Maple’s house, either was handed the wallet by Valdez F. (according to defendant’s own testimony) or directly removed the wallet from Atherton’s person himself (the prosecution’s theory).

At a minimum, the evidence in this case therefore established that the victim’s car keys and wallet were removed directly from his person. Significantly, the defense never claimed otherwise. Defense counsel’s theory of defense to the robbery charge based on the taking of the victim’s car keys, car, and wallet was not that those items had not been taken from the victim’s person or immediate presence, but that defendant was not a direct participant, and thus did not share accomplice liability, at this initial stage of the robbery-abduction.

Defense counsel urged in closing argument to the jury: “Clearly [defendant] did not rob Mr. Atherton personally of any property.” (Italics added.) But counsel freely conceded that “these items were obviously taken by Shon, Valdez and Frank at the time they first abducted Mr.

Atherton.” He argued that the most reasonable inference to be drawn from the evidence was that Shon Maple took the wallet from the victim’s person, stating: “I think the circumstantial evidence is fairly clear that it was Shon who had the best opportunity to remove the wallet.” (Italics added.) As we have indicated, the Court of Appeal below expressly concluded that the taking of Atherton’s car, and by implication the taking of his wallet and its contents, “as a matter of law” satisfied the requirement for robbery that the victim’s property forcibly be taken “from his person or immediate presence.” (Pen.

Code, § 211.) That conclusion was sound.

(3) For purposes of aider-abettor liability, the commission of a robbery continues so long as the property taken is being carried away to a place of temporary safety. (People v.

Cooper (1991) 53 Cal.3d 1158, 1169-1170 [282 Cal.Rptr. 450, 811 P.2d 742].) (4) “The act of ‘taking’ begins when the separation of the victim from his or her property occurs, and it continues through the forcible consummation.” (Webster, supra, 54 Cal.3d at p. 442.) As the prosecutor argued below, at the time defendant directly and knowingly involved himself in the kidnapping and robbery of Atherton, the victim had not been separated from his property, nor had the property been carried away to a place of temporary safety.

Indeed, the commission of the robbery was ongoing throughout the period during which all four takings were accomplished because the victim was still being held captive along with his car and other stolen property during that time. (See People v. Stankewitz (1990) 51 Cal.3d 72, 101 [270 Cal.Rptr. 817, 793 P.2d 23]; People v. Fields (1983) 35 Cal.3d 329, 367 [197 Cal.Rptr. 803, 673 P.2d 680].) In

summary then, the evidence established at a minimum that Maple, Valdez F., and Frank P. forcibly took personal property from the person of the victim (car keys, car, wallet) when they first accosted, beat, and abducted him in his own car. These takings as a matter of law satisfied the requirement for robbery that the victim’s property be taken from his person or immediate presence. The Court of Appeal so found, and nothing presented or argued by the defense at trial undermines this conclusion.

Defendant shared aider-abettor liability for the forcible and unlawful takings which constituted an ongoing robbery up to and through the point at which he became directly involved in the crime, a matter that was contested at trial but is no longer at issue in our review of the Court of Appeal’s judgment. The takings from the victim’s office and home The takings of items from Atherton’s office and home must be analyzed somewhat differently.

The items of property removed from those premises were obviously not taken directly from the victim’s “person.” Instead, it was the prosecution’s theory that they were taken from within Atherton’s “immediate presence.” In each instance Atherton was being forcibly restrained in a vehicle parked outside of, first his office complex, then his home, while the premises were looted.

During the “office takings,” Atherton, blindfolded and handcuffed, was being guarded in his Mazda in the parking lot of the office complex approximately 35 feet from his office building, and 80 feet from a second building which the group subsequently entered and looted. Access to these buildings was gained using keys from the key ring taken earlier from Atherton’s person by Frank P. During the subsequent “house takings,” Atherton, still blindfolded and handcuffed, was being restrained in the stolen Mercury which was parked “around the comer of the same block” on which his home was located.

Once again, access to the home was gained using a key from the key ring removed earlier from the victim’s person during the initial forcible abduction. “Two or three suitcases” full of items were removed from Atherton’s residence to the vehicles, including firearms, ammunition, leather jackets, and ATM cards from Atherton’s safe which defendant retained in his possession.

The circumstance that Atherton was being forcibly detained during the office and home takings, while items of his property were being seized from his home and office premises at the distances from him indicated above, is of particular legal significance to the question of whether these takings were accomplished in his “immediate presence.” Under these circumstances, it can be said that but for the use of force, blindfolding, handcuffing, and the ensuing captivity, Atherton’s relative proximity to his office building complex (35 to 80 feet) and home (“around the comer of the same block”) “would have allowed him to take effective physical steps to retain control of his property, and to prevent defendant and his companions from stealing it.” (Webster, supra, 54 Cal.3d at p. 440 [victim lured one-quarter mile away from his car by robbers who attacked and killed him and then stole his car; “immediate presence” requirement found satisfied].) “ ‘The trick or device by which the physical presence of the [victim] was detached from the property under his [possession] and control should not avail defendant in his claim that the property was not taken from the “immediate presence” of the victim.’ ” (Webster, supra, 54 Cal.3d at p. 441, italics in original, quoting People v.

Lavender (1934) 137 Cal.App. 582, 591 [31 P.2d 439]; see also People v. Ramos (1982) 30 Cal.3d 553 [180 Cal.Rptr. 266, 639 P.2d 908] [“immediate presence” requirement satisfied where victims are put in a walk-in refrigerator while money is taken from a cash register]; People v. Gordon (1982) 136 Cal.App.3d 519 [186 Cal.Rptr. 373] [“immediate presence” requirement satisfied where victims are tied up in one room while property is taken from another room].) In this regard, the facts of the present case are fundamentally distinguishable from those we faced in Hayes, supra, 52 Cal.3d 577.

In Hayes, the victim, a motel manager, was murdered in a motel room a distance of 107 feet from his office/living quarters from which property was thereafter stolen. Since the victim was murdered first and then his office/ living quarters were looted, the inquiry as to whether the “takings” were from his “immediate presence” was necessarily a limited one. By the defendant’s own testimony, the taking activity in which he participated occurred after the killing; the only “overt acts” that could have been perceived by the victim were those associated with the 22 fatal stab wounds inflicted upon him.

Given those facts, our primary focus in Hayes was on the possibility that the jury, misinstructed under Miramon-Brown, might improperly find the immediate presence requirement satisfied by the victim’s perception of the force inflicted upon him, thereby rendering the “taking” requirement redundant with the “force or fear” requirement.

As for the significance of the 107-foot distance in Hayes, we said only that “[u]nder these circumstances, a reasonable finder of fact could conclude either that the property was not so distant as to be beyond the victim’s control and protection, or that it was too distant to be in the victim’s immediate presence at the time the force was used.” (Hayes, supra, 52 Cal.3d at p. 629.) Here, in contrast to Hayes, Atherton was alive and being forcibly detained throughout the period during which the office and house takings were accomplished. “[N]othing in Hayes suggests that criminals may escape robbery convictions simply by luring their victim far enough away from the property to make his control more difficult or the application of force or fear more convenient.” (Webster, supra, 54 Cal.3d at p. 441.) Under these facts, defendant cannot be heard to argue, from a legal standpoint, that Atherton was too far removed from his office and home, when the takings from those premises were accomplished, to take effective physical steps to retain control of his property and prevent defendant and his companions from stealing it. (Webster, supra, 54 Cal.3d at pp. 440-442; People v.

Ramos, supra, 30 Cal.3d 553; People v. Lavender, supra, 137 Cal.App. at p. 591; People v. Gordon, supra, 136 Cal.App.3d 519; see also People v.

Prieto (1993) 15 Cal.App.4th 210, 214 [18 Cal.Rptr.2d 761].) We conclude that, given the facts, the distances involved in the office and home takings (“35 to 80 feet,” and “around the comer of the same block”) do not, as a matter of law, violate the standards defining immediate presence that we adopted for California robbery prosecutions in Hayes, supra, 52 Cal.3d 577. (See also Webster, supra, 54 Cal.3d at pp. 440-441 [reaching similar conclusion].) Was the instructional error prejudicial?

Thus far we have explained how all four “taking theories” advanced by the prosecution in support of the robbery charge as a matter of law did not violate the current standards defining “immediate presence” which we adopted in Hayes, supra, 52 Cal.3d 577. We have further explained why, as a result of this conclusion, the Court of Appeal below erred in finding the Miramon-Brown instructional error prejudicial under the rule of reversal stated in Green, supra, 27 Cal.3d at page 69.

It remains to be determined whether the instructional error in this case was prejudicial under the harmless error test traditionally applied to misinstruction on the elements of an offense, namely, whether it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Chapman, supra, 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]; Hayes, supra, 52 Cal.3d at p. 628 [applying Chapman standard to Miramon-Brown instructional error]; see Sullivan v.

Louisiana (1993) 508 U.S. _, _ [124 L.Ed.2d 182, 189, 113 S.Ct. 2078, 2081 [“most constitutional errors have been held amenable to harmless-error analysis, see Arizona v. Fulminante, 499 U.S. 279, 285, 111 S.Ct. 1246, 1252 [113 L.Ed.2d 302] (1991) (opinion of Rehnquist, C. J., for the Court) (collecting examples) . . . .”]; Carella v. California (1989) 491 U.S. 263 [105 L.Ed.2d 218, 109 S.Ct. 2419] (per curiam) [harmless error standard applied to instmction containing erroneous conclusive presumption]; Pope v.

Illinois (1987) 481 U.S. 497 [95 L.Ed.2d 439, 107 S.Ct. 1918] [harmless error standard applied to instruction misstating an element of the offense]; Rose v. Clark (1986) 478 U.S. 570 [92 L.Ed.2d 460, 106 S.Ct. 3101] [harmless error standard applied to instruction containing erroneous burden-shifting presumption]; cf. People v.

Berryman (1993) 6 Cal.4th 1048, 1089 [25 Cal.Rptr.2d 867, 864 P.2d 40] (maj. opn. by Mosk, J.) [“The erroneous omission of the element of intent to kill [from the felony-murder special-circumstance instruction] is not automatically reversible but rather is subject to harmless-error analysis under the ‘reasonable doubt’ standard for federal constitutional error laid down in [Chapman].”]; People v. Odle, supra, 45 Cal.3d at pp. 414-415.) Most recently, in Yates v.

Evatt (1991) 500 U.S. 391 [114 L.Ed.2d 432, 111 S.Ct. 1884] (Yates), the United States Supreme Court elaborated on the nature of the inquiry a reviewing court must undertake in applying the Chapman harmless-error standard to cases, such as this one, where the jury has been misinstructed on some aspect of an element of the charged offense. We note, parenthetically, that when this court decided Green, supra, 27 Cal.3d 1, and Hayes, supra, 52 Cal.3d 577, we did not have the benefit of the high court’s decision in Yates. Yates involved misinstruction on the element of malice in a murder case.

The jury was erroneously instructed that the requisite element of malice could be established based on either of two mandatory presumptions: that “ ‘use of a deadly weapon’ ” establishes malice, and that the “ ‘willful, deliberate, and intentional doing of an unlawful act’ ” operates in the same way. (Yates, supra, 500 U.S. at p. 401 [114 L.Ed.2d at p. 441].) Both “mandatory presumptions” were unconstitutional, as conceded by respondents in Yates. {Id. at pp. 401-402 [114 L.Ed.2d at pp. 441-442].) Although the present case does not involve misinstruction of the jury with a mandatory presumption, the high court’s discussion of Chapman harmless error review in Yates is nonetheless instructive on the prejudice analysis that must be undertaken here.

The following quoted passage from Yates sheds light on the analysis to be performed in assessing the prejudicial impact under Chapman of instructional error on the elements of an offense: “To say that an error did not ‘contribute’ to the ensuing verdict is not, of course, to say that the jury was totally unaware of that feature of the trial later held to have been erroneous.

When, for example, a trial court has instructed a jury to apply an unconstitutional presumption, a reviewing court can hardly infer that the jurors failed to consider it, a conclusion that would be factually untenable in most cases, and would run counter to a sound presumption of appellate practice, that jurors are reasonable and generally follow the instructions they are given. See Richardson v.

Marsh, 481 U.S. 200, 211 [95 L.Ed.2d 176, 107 S.Ct. 1702] (1987) (‘The rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant’). “To say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.

Thus, to say that an instruction to apply an unconstitutional presumption did not contribute to the verdict is to make a judgment about the significance of the presumption to reasonable jurors, when measured against the other evidence considered by those jurors independently of the presumption. “Before reaching such a judgment, a court must take two quite distinct steps. First, it must ask what evidence the jury actually considered in reaching its verdict.

If, for example, the fact presumed is necessary to support the verdict, a reviewing court must ask what evidence the jury considered as tending to prove or disprove that fact. [Fn. omitted.] Did the jury look at only the predicate facts, or did it consider other evidence bearing on the fact subject to the presumption? In answering this question, a court does not conduct a subjective enquiry into the jurors’ minds.

The answer must come, instead, from analysis of the instructions given to the jurors and from application of that customary presumption that jurors follow instructions and, specifically, that they consider relevant evidence on a point in issue when they are told that they may do so. “Once a court has made the first enquiry into the evidence considered by the jury, it must then weigh the probative force of that evidence as against the probative force of the presumption standing alone.

To satisfy Chapman’s reasonable doubt standard, it will not be enough that the jury considered evidence from which it could have come to the verdict without reliance on the presumption. Rather, the issue under Chapman is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption.

Since that enquiry cannot be a subjective one into the jurors’ minds, a court must approach it by asking whether the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption” (Yates, supra, 500 U.S. at pp. 403-405 [114 L.Ed.2d at pp. 448-449], italics added.) With these fundamental principles of Chapman review firmly in mind, the error in the rationale of Justice Mosk’s concurring and dissenting opinion becomes apparent.

That opinion misplaces principal reliance on the high court’s recent decision in Sullivan v. Louisiana, supra, 508 U.S--[124 L.Ed.2d 182, 113 S.Ct. 2078] (Sullivan).

The specific holding of Sullivan is that the giving of a constitutionally deficient reasonable doubt instruction can never be deemed harmless under a Chapman analysis. (Sullivan, supra, 508 U.S. at p. _ [124 L.Ed.2d at pp. 187-192, 113 S.Ct. at pp. 2080-2083].) In reaching this conclusion, Justice Scalia, writing for the court, did have occasion to first reiterate the time-honored Chapman standard, and then briefly paraphrase the court’s earlier holding in Yates, supra, 500 U.S. 391, in a manner fully consistent with our own reading of that decision. (Sullivan, supra, 508 U.S. at p. _ [124 L.Ed.2d at pp. 189-190, 113 S.Ct. at p. 2081].) Sullivan goes on to explain the “illogic” of applying such harmless error review to a case in which the jury has been given a constitutionally deficient reasonable doubt instruction. (Sullivan, supra, 508 U.S. at p— [124 L.Ed.2d at pp. 189-190, 113 S.Ct. at p. 2082].) That is so because, in such a case, “there has been no jury verdict within the meaning of the Sixth Amendment” of “guilty-beyond-a-reasonable-doubt,” and for that reason “the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless.” (Ibid., italics in original.) The Sullivan court observed that: “In [Arizona v.] Fulminante [supra, 113 L.Ed.2d 302, 111 S.Ct. 1246,] we distinguished between, on the one hand, ‘structural defects in the constitution of the trial mechanism, which defy analysis by “harmless-error” standards,’ and, on the other hand, trial errors which occur ‘during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented.’ Fulminante, supra, 499 U.S. 279, 113 L.Ed.2d 302, 111 S.Ct. 1246.

Denial of the right to a jury verdict of guilt beyond a reasonable doubt [as the result of a constitutionally deficient reasonable doubt instruction] is certainly an error of the former sort, the jury guarantee being a ‘basic protectio[n]’ whose precise effects are unmeasureable, but without which a criminal trial cannot reliably serve its function. [Citation.] . . .

The deprivation of that right [to trial by jury], with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as ‘structural error.’ ” (Sullivan, supra, 508 U.S. at pp._[124 L.Ed.2d at pp. 190-191, 113 S.Ct. at pp. 2082-2083].) There was no constitutionally defective reasonable doubt instruction given in the present case. The precise holding in Sullivan thus has no direct bearing on the question at hand; did the Miramon-Brown misinstruction on “immediate presence” prejudice the robbery and robbery-related verdicts under the Chapman test?

As Chief Justice Rehnquist observed in his separate concurring opinion characterizing the holding in Sullivan: “I accept the Court’s conclusion that a constitutionally deficient reasonable-doubt instruction is a breed apart from the many other instructional errors that we have held are amenable to harmless-error analysis.” (Sullivan, supra, 508 U.S. at p._ [124 L.Ed.2d at p. 193, 113 S.Ct. at p. 2084], italics in original (cone. opn. of Rehnquist, C.

J.) [citing, among other examples of instructional errors which are subject to harmless error review, “instruction[s] misstating an element of the offense,” with citation to Pope v. Illinois, supra, 481 U.S. 497].) The error under review in Sullivan is a “breed apart” from the Miramon-Brown instructional error we face in this case. For this reason, Justice Mosk’s apparent fear that our opinion in this case is inconsistent with, and unfaithful to, the high court’s opinion in Sullivan, is simply unfounded.

Justice Mosk’s understanding of the analysis an appellate court must undertake in conducting Chapman review of misinstruction on an element of an offense is also at odds with the holding in Yates.

His concurring and dissenting opinion suggests that “to say that the superior court’s instructional misdefinition of the ‘immediate presence’ element of the crime of robbery did not contribute to the verdict is to make a judgment about the significance of the instructional misdefinition to reasonable jurors, when considered against the other pertinent, and proper, instructions.” (Cone. & dis. opn. of Mosk, J., post, at p. 443.) But that is only part of our inquiry under the mandate of Chapman and Yates; we must ultimately look to the evidence considered by defendant’s jury under the instructions given in assessing the prejudicial impact or harmless nature of the error.

Justice Mosk appears to conclude otherwise, implying that we should virtually ignore the record evidence as largely irrelevant to our task, and expressly concluding that any finding as to whether the jury “actually rendered its actual verdict” without reliance on the Miramon-Brown misinstruction must turn on “whether the other pertinent and proper instructions are so implicated on the record, including the parties’ evidence and theories, as to compel a conclusion beyond a reasonable doubt that they must have made the instructional misdefinition superfluous.” (Id. at pp. 443-444.) This conclusion—that “[i]t is only if the instructional misdefinition [is] minimal in importance compared to the other pertinent and proper instructions that it can be held not to have contributed to the verdict” (id. at p. 444)—does not accurately characterize the prejudice analysis to be undertaken here.

As explained in Yates, under Chapman we must inquire whether it can be determined, beyond a reasonable doubt, that the jury actually rested its verdict on evidence establishing the requisite “taking” element of robbery independently of the force of the Miramon-Brown misinstruction. (Yates, supra, 500 U.S. at p. 405 [114 L.Ed.2d at p. 449.) As previously noted, Yates involved misinstruction in a murder case on the requisite element of malice, the trial court having erroneously told the jury the element could be established based on either of two mandatory presumptions, both of which in fact were unconstitutional.

The Supreme Court’s task in Yates, therefore, was to determine the effect of the erroneous mandatory presumptions on the jury’s verdict impliedly finding malice.

First, the court determined that in light of all the instructions the jury would have considered all the evidence relevant to malice. (Yates, supra, 500 U.S. at pp. 408-409 [114 L.Ed.2d at p. 452].) Then, looking itself to all the relevant evidence, the court concluded the evidentiary record did not clearly establish malice; hence the court was unable to infer beyond a reasonable doubt that the mandatory presumptions did not contribute to the jury’s verdict. (Id. at pp. 409-410 [114 L.Ed.2d at p. 452].) Here, by contrast, the trial court’s misinstruction did not implicate the entirety of the definition of the “taking” element of robbery—instead the jury was misinstructed on one of two possible factual theories by which that element could be satisfied, i.e., the theory of a taking from the victim’s immediate presence.

No instructional error occurred in connection with the alternate theory by which the element of taking could be satisfied—the theory of a taking directly from the victim’s person.

With this distinction in mind, we turn again to the language in Yates that must guide this court: “To say that an error did not ‘contribute’ to the verdict,” the high court stated, is not to say “the jury was totally unaware of that feature of the trial later held to have been erroneous.” (Yates, supra, 500 U.S. at p. 403 [114 L.Ed.2d at pp. 448-449].) Here, of course, the jury certainly was aware of the evidence and arguments of counsel concerning those takings that would not have been from Atherton’s person, but only from his immediate presence. “To say that an error did not contribute to the verdict,” the court continued, “is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” (Ibid., italics added.) In Yates, as indicated, the “issue in question” was malice.

Here, the issue in question is not whether the takings were from Atherton’s immediate presence; rather, the issue in question is simply whether there was a taking— either from Atherton’s person or from his immediate presence—sufficient to satisfy the taking requirement for robbery.

Paraphrasing Yates, “to say that an instruction [here, misdefining the facts necessary to support one theory establishing an element] did not contribute to the verdict is to make a judgment about the significance of the [instruction] to reasonable jurors, when measured against the other evidence considered by those jurors independently of the [evidence to which the erroneous instruction applied].” (Yates, supra, 500 U.S. at p. 404 [114 L.Ed.2d at pp. 449-450].) Continuing, the high court stated, “If, for example, the fact presumed [or, as here, the factual theory concerning which the jury was misinstructed] is necessary to support the verdict, a reviewing court must ask what evidence the jury considered as tending to prove or disprove that fact.” (Id. at p. 404 [114 L.Ed.2d at pp. 449-450], fn. omitted.) Then, in a footnote at this point, the court admonished: “If the presumed fact is not itself necessary for the verdict, but only one of a variety of facts sufficient to prove a necessary element, the reviewing court should identify not only the evidence considered for the fact subject to the presumption, but also the evidence for alternative facts sufficient to prove the element.” (500 U.S. at p. 404, fh. 9 [114 L.Ed.2d at p. 449].) The latter caveat, in our view, is relevant here, as it was not in Yates.

Here the theory on which the jury was misinstructed is “not itself necessary for the verdict”; rather, the theory of a taking from Atherton’s immediate presence is “only one of a variety of facts sufficient to prove” the necessary element of taking. The trial court instructed the jurors on both theories of taking.

In particular, the jury was told that “[r]obbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (Italics added; see CALJIC No. 9.40.) We are directed in Yates to apply the “customary presumption that jurors follow instructions and, specifically, that they consider relevant evidence on a point in issue when they are told that they may do so.” (Yates, supra, 500 U.S. at p. 404 [114 L.Ed.2d at p. 449].) The court’s instructions made the question whether there was a taking from the victim’s person a “point in issue” for the jury.

Following Yates, we therefore presume the jury considered all relevant evidence relating to a taking from the victim’s person. The United States Supreme Court has admonished that, “[h] armless-error analysis addresses . . . what is to be done about a trial error that, in theory, may have altered the basis on which the jury decided the case, but in practice clearly had no effect on the outcome.” (Rose v.

Clark, supra, 478 U.S. at p. 582, fn. 11 [92 L.Ed.2d at p. 473], italics added.) Because the force of the evidence showing Atherton’s wallet, car keys, and automobile were taken directly from his person is “overwhelming” (see Yates, supra, 500 U.S. at p. 405 [114 L.Ed.2d at pp. 449-450]), the conclusion is inescapable that the evidence, as Yates requires, is “of such compelling force as to show beyond a reasonable doubt” that the erroneous instruction “must have made no difference in reaching the verdict obtained.” (Yates, supra, 500 U.S. at p. 407 [114 L.Ed.2d at pp. 451-452].) IV That portion of the judgment of the Court of Appeal reversing the robbery, kidnapping for robbery, and first degree murder convictions is reversed.

In all other respects the judgment is affirmed, and the matter remanded to the Court of Appeal for further proceedings consistent with this opinion. Arabian, J., Baxter, J., George, J., and Werdegar, J., concurred. A term of life imprisonment for the kidnapping for robbery conviction was stayed pursuant to Penal Code

section 654. Prior to defendant’s trial, Maple successfully moved to sever his case from defendant’s. Most of the evidence covering the events from the time of the kidnapping of victim Martin Atherton up to his murder came from the eyewitness testimony of Frank P. The minor was originally charged with murder, kidnapping, robbery, burglary and auto theft; he thereafter agreed to testify truthfully for the prosecution and plead guilty to kidnapping in exchange for the prosecution’s dismissal of the remaining charges and recommendation of an eight-year commitment to the California Youth Authority.

Defendant testified on direct examination that he was an “experienced” car thief, that he had trained Maple and the two minors in auto burglary, and that as they became more experienced his three companions—whom he referred to at one point as “the guys [in] my group”—would go out to commit thefts without him in “the normal routine.” Defendant testified that on this night he declined to go out with the group, but told them they could use the stolen Mercury.

Defendant would frequently stay over at Maple’s house since Maple’s sister was defendant’s girlfriend. defendant testified further that en route back to Maple’s house, with all the stolen property and guns still in the two cars and the victim still blindfolded and handcuffed in the Mazda which defendant was driving, the group wound up “racing” the Mazda against the Mercury down the city streets, screeching their wheels and ultimately causing a flat tire on the Mazda, which had to be changed and later fixed. Overruled on an unrelated point in People v.

Hall (1986) 41 Cal.3d 826, 834, fn. 3 [226 Cal.Rptr. 112, 718 P.2d 99]. Recently, in People v. Guiton (1993) 4 Cal.4th 1116 [17 Cal.Rptr.2d 365, 847P.2d 45], we considered the effect of the high court’s holding in Griffin v. United States (1991) 502 U.S. 46 [116 L.Ed.2d 371, 112 S.Ct. 466] on one aspect of Green’s rule of reversal not directly implicated here. Guitón involved jury instructions that were legally correct but not supported by the evidence.

Relying on the high court’s teachings in Griffin, we overruled that portion of our holding in Green suggesting a general rule of reversal must also be applied in cases where the jury has been instructed on a factually unsupportable theory of the case. In support of that conclusion, we explained that “[t]he jury [is] as well equipped as any court to analyze the evidence and to reach a rationale conclusion.

The jurors’ ‘own intelligence and expertise will save them from’ the error of giving them ‘the option of relying upon a factually inadequate theory.’ (Griffin, supra, 502 U.S. at p. 59 [116 L.Ed.2d at pp. 382-383, 112 S.Ct. at p. 474].)” (People v.

Guiton, supra, 4 Cal.4th at p. 1131.) We made clear in Guiton that we were not “decid[ing] the exact standard of review of cases governed by Green, supra, 27 Cal.3d 1 [i.e., those involving legally incorrect instructional errors].” (Guiton, supra, 4 Cal.4th at p. 1130.) We further observed in Guiton that Green’s rule of reversal, even as applied to legally incorrect instructional errors, “has not been universal,” and we acknowledged that “[t]here may be additional ways by which a court can determine that error in the Green situation is harmless.

We leave the question to future cases.” (Id. at pp. 1130-1131.) In contrast, the prosecutor urged the jury to conclude the evidence supported an inference that defendant personally removed the wallet from Atherton’s person while seated next to him in the Mazda in front of Maple’s house, after Maple had blindfolded and handcuffed the victim at defendant’s direction. Defendant himself testified that as he sat next to the victim in the vehicle, he removed the cash from the victim’s wallet and pocketed it.

He testified further on cross-examination that when he obtained the victim’s wallet at this point, he and the others were all eager to see what it contained. The prosecutor argued to the jury: “The defense says—focuses in on this wallet that was taken from Mr. Atherton. And [defense counsel] says to you that the reasonable

interpretation is that Shon Maple is the one who took the wallet. So what’s Valdez [F.] doing with the wallet? That’s the person the defendant said handed him the wallet. Why is there money still in the wallet?

If one of those guys took the wallet, the first thing they would have done, just like the defendant, is take the money out of the wallet and put it in their pocket.” In concluding that an element of a charged offense is established “as a matter of law,” we do not mean to intimate that when one or more of the requisite elements are overwhelmingly established by the evidence, the jury need not find such elements satisfied in order to convict the defendant of the offense.

Contrary to the concurring and dissenting opinion of Justice Kennard, we do not read the high court’s pertinent decisions to date as going so far as to suggest that where “the elements of robbery were established by undisputed facts. . . it is of no constitutional significance that ... the jury may have relied to some extent on the erroneous instruction in reaching its guilty verdict on the robbery charge.” (Cone. & dis. opn. of Kennard, J., post, at p. 453.) Rather, in concluding that the takings directly from Atherton’s person were established “as a matter of law,” we are simply determining that the evidence introduced on the taking element—e.g., Frank P.’s testimony that he personally removed the car keys and a car alarm “beeper” from Atherton’s pocket during the initial attack, which testimony went uncontroverted by the defense at trial—was plainly sufficient to support the taking requirement and, hence, the jury’s robbery verdict.

Hayes claimed he killed the motel manager in self-defense, and that thereafter another motel resident, James, initiated the plan to remove items of property from the manager’s office and living quarters.

Hayes asserted he merely assisted James in carrying the loot away. (Hayes, supra, 52 Cal.3d at pp. 599-601.) In light of the many decisions of the United States Supreme Court next discussed, which were handed down after Green was decided and elaborate on the full nature of the inquiry an appellate court undertakes when conducting Chapman harmless error review, the continued validity of Green’s rule of reversal could be questioned, to the extent it conflicts with the principles announced in those cases.

In at least one prior case we have invoked the rationale of Yates to find instructional error analogous to misinstruction on the elements of an offense harmless beyond a reasonable doubt. (See People v. Johnson (1993) 6 Cal.4th 1, 46 [23 Cal.Rptr.2d 593, 859 P.2d 673] [failure to instruct on the necessary intent-to-kill element of the felony-murder special circumstance in a “window period” case involving a felony murder committed between the filing of Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal.Rptr. 79, 672 P.2d 862] and People v.

Anderson (1987) 43 Cal.3d 1104 (240 Cal.Rptr. 585, 742 P.2d 1306)].) The concurring and dissenting opinion of Justice Mosk errs in several other particulars. For example, it is stated that: “Manifestly, the People’s theory [of robbery] required resort to the instructional misdefinition of the ‘immediate presence’ element. It sought to reach every taking of every item by either defendant himself or any of his partners.

It could do so only because ‘immediate presence’ was misdefined as the area within which the victim could perceive, by some sense, some ‘overt act’ connected with the offense—including the area within which he could hear defendant and/or any of his partners speak about the matter.” (Conc. & dis. opn.of Mosk, J., post, at p. 445.) If what is meant by this passage is that the prosecution, in order to prove commission of a robbery under the posture of the case as it was presented to the jury, was required to establish four valid takings under each of the “taking" theories noted, then the dissent is revisiting the unanimity instruction issue and redeciding it in defendant’s favor.

As the Court of Appeal below aptly recognized, that issue is not directly before us in this appeal. On remand, it can be considered in conjunction with other issues that were not reached in light of the reversal for Miramon-Brown instructional error. (See post, at p. 431, fin. 14.) It must be borne in mind that in order for the jury to return a guilty verdict on the single count of robbery charged, it was only required to unanimously agree beyond a reasonable doubt that the evidence established a taking sufficient to support a finding that a robbery had been committed.

This is not a case in which multiple convictions of robbery were being sought for each of the prosecution’s “taking theories.” Defendant did not prevail on his request for a unanimity instruction directed to the single robbery count. Because the Court of Appeal reversed the robbery and robbery-related verdicts under Green, supra, 27 Cal.3d 1, that court found it unnecessary to resolve defendant’s remaining claims on appeal, including the claim that the trial court erred in refusing the instruction.

For purposes of guidance on remand, we observe that “[t]he unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction.” (People v.

Stankewitz, supra, 51 Cal.3d 72, 100.) Even assuming a defendant, by and through the argument of counsel to the jury, suggests differing defenses to each of the alleged acts, still it must be determined whether there is any “reasonable basis” for the jury to distinguish between them in determining whether the “continuous conduct” rule applies. (Ibid.) Here, there was an ongoing forcible restraint of the victim throughout his two-day ordeal up until his murder.

In particular, he was being held captive along with his stolen car throughout the period during which the office and home takings were accomplished. (People v. Stankewitz, supra, 51 Cal.3d at p. 101.) The takings were successive and compounding in nature; none of the items of personal property taken from Atherton’s home and office were “carried away to a place of temporary safety” until well after completion of the looting of those premises. (People v.

Cooper, supra, 53 Cal.3d at pp. 1169-1170.) We may therefore question whether any “reasonable basis” was available to legally distinguish between the four “taking theories” for purposes of establishing the single count of robbery charged. The successive takings arguably reflected a “continuing course of conduct,” the central objective of which was to rob Atherton of all of his property wherever it might be located, while forcibly restraining him in his own vehicle and transporting him to the various locations for the purpose of assisting the group in that objective.

Indeed, the prosecutor indicated on the record, at the time the trial court rejected the requested unanimity instruction, that only one count of robbery had been charged in this case largely in anticipation that multiple punishments would be unattainable under the proscriptions of Penal Code

section 654.