People v. Harris

MOSK, J., Concurring and Dissenting.

I concur in the judgment insofar as it affirms the judgment of the Court of Appeal affirming the judgment of the superior court convicting defendant of numerous crimes.

I dissent, however, from the judgment insofar as it reverses the judgment of the Court of Appeal reversing the judgment of the superior court convicting defendant of the crimes of murder in the first degree, robbery in the second degree, and kidnapping for robbery. As I shall explain, the robbery conviction must be reversed because the superior court erred under both California law and the United States Constitution by misdefining the element of “immediate presence” in its instructions to the jury. With robbery fall murder and kidnapping for robbery, which are related thereto, the former through the doctrine of felony murder. My colleagues recognize the error on robbery. But they refuse to acknowledge its reversibility. As for the federal Constitution, they strive hard to avoid such decisions of the United States Supreme Court as Sullivan v. Louisiana (1993) 508 U.S._[124 L.Ed.2d 182, 113 S.Ct. 2078] (hereafter sometimes Sullivan), Yates v. Evatt (1991) 500 U.S. 391 [114 L.Ed.2d 432, 111 S.Ct. 1884] (hereafter sometimes Yates), and Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065] (hereafter sometimes Chapman). As for state law, they all but ignore our recent decision in People v. Guiton (1993) 4 Cal.4th 1116 [17 Cal.Rptr.2d 365, 847 P.2d 45] (hereafter sometimes Guiton). By doing so, they commit error in this case and threaten needless mischief in those that follow. In this, I cannot and will not join.

I

In its charge, the superior court instructed the jury that the People had to prove all the elements of a crime beyond a reasonable doubt before they were entitled to a verdict of guilty.

*433As to the crime of robbery, of which defendant stood accused, the superior court instructed as follows:

“Every person who takes personal property in the possession of another, against the will and from the person or immediate presence of that person, accomplished by means of force or fear with the specific intent permanently to deprive such person of such property is guilty of the crime of robbery in violation of Penal Code section 211.
“In order to prove such crime, each of the following elements must be proved:
“One, the person had possession of property of some value, however slight;
“Two, such property was taken from such person or from his immediate presence;
“Three, such property was taken against the will of such person;
“Four, the taking was accomplished either by force, violence, fear or intimidation;
“And, five, such property was taken with the specific intent to permanently deprive such person of the property.”

In conformity with decisions including People v. Brown (1989) 212 Cal.App.3d 1409, 1419 [261 Cal.Rptr. 262] (hereafter Brown), and People v. Miramon (1983) 140 Cal.App.3d 118, 124 [189 Cal.Rptr. 432] (hereafter Miramon), the superior court defined the “immediate presence” element as follows:

“The act of robbery is deemed to have occurred within the immediate presence of a victim so long as the victim perceived any overt act connected with the commission of the offense. Any and all of the sensory perceptions of the victim are to be considered in determining presence.”

Supporting these instructions, the evidence adduced at trial revealed that defendant could possibly be found guilty of robbery, as either a direct perpetrator or an aider and abetter, with regard to the taking of four items or groups of items of personal property belonging to the victim: (1) the victim’s automobile and/or its contents; (2) the victim’s wallet and/or its contents; (3) certain of the victim’s possessions at his office; and/or (4) certain of the victim’s possessions at his residence.

*434The theory presented at trial by the People was that defendant was guilty of robbery, without specification, as either a direct perpetrator or an aider and abettor on the basis of any or all of the takings of any or all of the items. As to the “immediate presence” element, the theory embraced “immediate presence” as the area within which the victim could perceive, by some sense, some “overt act” connected with the offense. The reason was evidently this: although some of the takings of some of the items might satisfy the “immediate presence” element as from the victim’s “person,” most—as the prosecutor himself conceded—could do so only as from the victim’s “immediate presence” as defined above. All the takings of all the items had at least been spoken of by defendant and/or one or more of his partners within the victim’s hearing.

In accordance with this theory, the prosecutor argued as to the taking of the victim’s possessions at his office: “What about the items that were taken from the business? They weren’t taken from [the victim’s] person. They weren’t taken from his immediate presence. He wasn’t in actual possession, but he had constructive possession of those items of property. Taken from his immediate presence because he was able to perceive several overt acts associated with the taking of that property. When he was sitting out in front of [the] house [of one of defendant’s partners], clearly he must have heard them talking about going back to the business. On the way to the business, [another one of defendant’s partners] was asking him questions. Once at the business, there was a point in time when [the former of the partners]—and . . . this is before any property is taken—specifically asked [the victim] about the building that he had come out of. [¶] I suggest to you, ladies and gentlemen, that these overt acts associated with the commission of the taking of that property made the taking of that property within [the victim’s] immediate presence as defined by the law, even though [the victim] was out in the car at the time the items were taken.” (Italics added.)

The prosecutor argued similarly as to the taking of the victim’s possessions at his residence: “We [are] about to discuss the application of the law of robbery to the taking of the items that were—from [the victim’s] house. [¶] And we [are] doing that in the context of the rule requiring that the items be taken from his immediate presence. Again, immediate presence means where an act of robbery is committed within a person’s immediate presence when as long as the victim perceives an overt act associated with the connection [m'c: commission] of the offense. [¶] So again the focus is on the overt acts. What overt acts do we have with respect to the taking of property from [the victim’s] house? Well, at the business they questioned [him] about the location of his home. They questioned him about property that he had at his house, [¶] He knew he was being taken to his house and he was in fact *435forced to give directions on the way over to the house. . . . [¶] While at his house, or parked around the comer from his house about five houses away, [one of defendant’s partners] comes back and demands information from him concerning property that he knows to be in his house, [¶] These overt acts make the taking of the property from [the victim’s] house a robbery.” (Italics added.)

After deliberations, the jury rendered a verdict finding defendant guilty of robbery and, at the superior court’s direction, fixing the degree at the second.

II

A

In delivering its instructional definition of the “immediate presence” element of the crime of robbery, the superior court erred under California law.

In People v. Hayes (1990) 52 Cal.3d 577 [276 Cal.Rptr. 874, 802 P.2d 376] (hereafter sometimes Hayes), we held that the proper definition of “immediate presence” within the meaning of Penal Code section 211 was that which was “generally accepted” among courts and commentators as to similar provisions, to wit: “ ‘ “[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.” ’ ” (Id. at pp. 626-627.) We then effectively defined “immediate presence” simply as “an area over which the victim, at the time force or fear was employed, could be said to exercise some physical control.” (Id. at p. 627.) We disapproved decisions including Brown and Miramon to the extent that they were inconsistent.

In Hayes, we proceeded to review an instructional definition of the “immediate presence” element that was, in pertinent part, as follows: “ ‘An act of robbery can be said to have occurred in the victim’s immediate presence as long as the victim perceived any overt act connected with the commission of the offense.’ ” (People v. Hayes, supra, 52 Cal.3d at pp. 627-628.) We found this definition erroneous. It effectively expanded the scope of the “immediate presence” element, by causing it to reach facts not properly within its ambit. It “permitted the jury to find the ‘immediate presence’ element of robbery if any of the acts mentioned in the general definition of robbery occurred in the victim’s presence.” (Id. at p. 628.) It “thus rendered the ‘immediate presence’ element devoid of all independent meaning, making it redundant with” any and all other elements with “overt *436acts” within the area of the victim’s perception. (Ibid.) “For example, a person might enter the victim’s home and there, by the use of force or fear, compel the victim to reveal the combination of a safe located many miles away in the victim’s office. The culprit at the victim’s house could then relay the combination to a confederate waiting in or near the office, who could use it to open the safe and take its contents before the victim could reach the office or otherwise interfere with the taking. In such a case, the criminals would ... not have taken property from the . . . immediate presence of the victim” under a proper definition of the element. (Id. at p. 627.) But they would have done so under the misdefinition set out above, which would be satisfied by the fact that such an “overt act” as the first criminal’s use of force or fear was within the area of the victim’s perception.

It follows from the foregoing that the superior court’s instructional definition of the “immediate presence” element, which was substantially similar to that found erroneous in Hayes, was itself erroneous. Like its counterpart in Hayes, it effectively expanded the scope of the element.

B

Insofar as the superior court’s instructional misdefinition of the “immediate presence" element of the crime of robbery was erroneous under California law, it requires reversal on that basis.

The error here is apparently not reversible per se but instead subject to harmless error analysis under Guitón.

In Guitón, we addressed the broad question, what is the standard for prejudice when the jury is presented with alternate theories of conviction, one (or more) of which is erroneous and one (or more) of which is not?

In arriving at an answer, we considered, and “harmonized” (People v. Guiton, supra, 4 Cal.4th at p. 1121), our earlier decision in People v. Green (1980) 27 Cal.3d 1 [164 Cal.Rptr. 1, 609 P.2d 468] (hereafter Green) and the United States Supreme Court’s later decision in Griffin v. United States (1991) 502 U.S. 46 [116 L.Ed.2d 371, 112 S.Ct. 466] (hereafter Griffin).

Under the Griffin rule, as “properly construed” in Guiton (People v. Guiton, supra, 4 Cal.4th at p. 1121), when & factually erroneous theory of conviction is presented to the jury—i.e., when the theory, though consistent with the law, is not supported by the evidence—reversal is not required unless, on the record made at trial, the reviewing court determines that the conviction actually, and solely, rests on the factually erroneous theory (id. at pp. 1126-1131).

*437By contrast, under the Green rule, as “properly construed” in Guiton (People v. Guiton, supra, 4 Cal.4th at p. 1121), when a legally erroneous theory of conviction is presented to the jury—i.e., when the theory, though supported by the evidence, is not consistent with the law or when the theory, though consistent with the law, is not supported by legally sufficient evidence—reversal is required unless, on the record made at trial, the reviewing court can determine that the conviction actually, if not solely, rests on a legally proper theory (id. at pp. 1126-1131).

The error here amounts to the presentation to the jury of a legally erroneous theory of conviction in the sense of a theory that was not consistent with the law. As explained, the instruction in question misdefined the “immediate presence” element of robbery.

Reversal is required because, on the record made at trial, we cannot determine that defendant’s conviction actually, if not solely, rests on a legally proper theory. There is simply nothing in the evidence or the arguments or the instructions that establishes or even suggests that the verdict is based on the “immediate presence” element properly defined. Indeed, what there is clearly indicates that the verdict depends on the misdefinition. More on that in due course. (See pp. 444-445, post.)

C

Both the majority and Justice Kennard in her concurring and dissenting opinion agree that the superior court’s instructional misdefinition of the “immediate presence” element of the crime of robbery was erroneous under California law.

Justice Kennard does not go on to consider the question of reversibility on that basis.

The majority do, and answer in the negative. They are wrong. They all but ignore Guiton, relegating it to a passing footnote. More significant, they altogether ignore the Green rule, as “properly construed” in Guiton. (People v. Guiton, supra, 4 Cal.4th at p. 1121.) Instead, they take a tortuous detour through Green’s peculiar facts to conclude that its reasoning does not require reversal. In so doing, they merely set up and knock down a straw man. That is to say, they proceed as though the jury here had been presented with a legally erroneous theory of conviction in the sense of a theory that was not supported by legally sufficient evidence. That is simply not the case. As explained, the jury was presented with a legally erroneous theory of conviction in the sense of a theory that was not consistent with the law.

*438III

A

In delivering its instructional definition of the “immediate presence” element of the crime of robbery, the superior court erred under the United States Constitution as well as California law. Hayes compels the result. (See People v. Hayes, supra, 52 Cal.3d at pp. 628-629.)

The due process clause of the Fourteenth Amendment to the United States Constitution requires that, before it may obtain a valid conviction, the state must prove every element of a crime, and must do so beyond a reasonable doubt. (E.g., Sullivan v. Louisiana, supra, 508 U.S. at pp._-_[124 L.Ed.2d at pp. 187-188, 189-190, 113 S.Ct. at pp. 2080-2081, 2082].)

It follows that jury instructions in a state criminal trial omitting the requirement of proof of every element of a crime beyond a reasonable doubt are erroneous under the Fourteenth Amendment’s due process clause. (See Jackson v. Virginia (1979) 443 U.S. 307, 320, fn. 14 [61 L.Ed.2d 560, 574, 99 S.Ct. 2781].)

Evidently, similar instructions merely misdefining the beyond-a-reasonable-doubt standard by effectively lowering its threshold are also erroneous under the Fourteenth Amendment’s due process clause. (Sullivan v. Louisiana, supra, 508 U.S. at pp._-_[124 L.Ed.2d at pp. 187-188, 113 S.Ct. at pp. 2080-2081].)

“The Sixth Amendment,” Sullivan explains, “provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. [W]e [have] found this right to trial by jury in serious criminal cases to be ‘fundamental to the American scheme of justice,’ and therefore applicable in state proceedings. The right includes, of course, as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of ‘guilty.’ [Citation.] Thus, although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he may not direct a verdict for the State, no matter how overwhelming the evidence. [Citations.]

“What the factfinder must determine to return a verdict of guilty is prescribed by the Due Process Clause. The prosecution bears the burden of proving all elements of the offense charged, [citations], and must persuade the factfinder ‘beyond a reasonable doubt’ of the facts necessary to establish each of those elements, [citations]. This beyond-a-reasonable-doubt requirement, which was adhered to by virtually all common-law jurisdictions, applies in state as well as federal proceedings. [Citation.]

*439“It is self-evident, we think, that the [Fourteenth] Amendment requirement of proof beyond a reasonable doubt and the Sixth Amendment requirement of a jury verdict are interrelated. It would not satisfy the Sixth Amendment to have a jury determine that the defendant is probably guilty, and then leave it up to the judge to determine . . . whether he is guilty beyond a reasonable doubt. In other words, the jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt. . . . [A]n instruction [misdefining proof beyond a reasonable doubt by effectively lowering its threshold] . . . does not produce such a verdict.” (Sullivan v. Louisiana, supra, 508 U.S. at pp__-_[124 L.Ed.2d at pp. 187-188, 113 S.Ct. at pp. 2080-2081], italics in original, fn. omitted.)

Likewise, jury instructions in a state criminal trial omitting the requirement of proof beyond a reasonable doubt of every element of a crime are erroneous under the Fourteenth Amendment’s due process clause. (Rael v. Sullivan (10th Cir. 1990) 918 F.2d 874, 875; Cole v. Young (7th Cir. 1987) 817 F.2d 412, 423-426; cf. U.S. v. Gaudin (9th Cir. 1994) 28 F.3d 943, 945-947 (in bank) [holding that jury instructions in a federal criminal trial omitting the requirement of proof beyond a reasonable doubt of every element of a crime are erroneous under the Fifth Amendment’s due process clause].)

Under the reasoning of Sullivan, similar instructions merely misdefining an element of a crime by effectively expanding its scope are also erroneous under the due process clause of the Fourteenth Amendment. As stated, the Sixth Amendment right to trial by jury includes, as its core, the right to have the jury, rather than the judge, reach the requisite finding of “guilty.” To reach that finding, the jury must determine, under the demand of the due process clause, that the state has proved every element of the crime charged, and has done so beyond a reasonable doubt. The Fourteenth Amendment requirement of proof beyond a reasonable doubt of every element of the crime charged and the Sixth Amendment requirement of a jury verdict are interrelated. It would not satisfy the Sixth Amendment to have a jury determine that the defendant is guilty beyond a reasonable doubt of the crime charged under a misdefinition of one or more of its elements, and then leave it up to the judge to determine whether he is guilty beyond a reasonable doubt of the crime charged under a proper definition of all its elements. In other words, the jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt of the crime charged under a proper definition of all its elements. An instruction misdefining any element by effectively expanding its scope does not produce such a verdict.

It follows from the foregoing that the superior court’s instructional misdefinition of the “immediate presence” element, which effectively expanded *440its scope, was erroneous under the Fourteenth Amendment’s due process clause.

B

The fact of error raises the question of reversibility.

Insofar as the superior court’s instructional misdefinition of the “immediate presence” element of the crime of robbery was erroneous under the United States Constitution, it is apparently not reversible per se but instead subject to harmless error analysis under Chapman. (See People v. Hayes, supra, 52 Cal.3d at pp. 628-629.)

“The Chapman test,” as explained in Yates and Sullivan, “is whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” (Yates v. Evatt, supra, 500 U.S. at pp. 402-403 [114 L.Ed.2d at pp. 441-442], quoting Chapman v. California, supra, 386 U.S. at p. 24 [17 L.Ed.2d at pp. 710-711]; accord, Sullivan v. Louisiana, supra, 508 U.S. at pp._-_[124 L.Ed.2d at pp. 188-189, 113 S.Ct. at pp. 2081-2082].) “To say that an error did not contribute to the ensuing 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 v. Evatt, supra, 500 U.S. at p. 403 [114 L.Ed.2d at p. 449]; accord, Sullivan v. Louisiana, supra, 508 U.S. at pp._-_[124 L.Ed.2d at pp. 188-189, 113 S.Ct. at pp. 2081-2082].)

Thus, the focus under Chapman is what the jury actually decided and whether the error may have tainted its decision. “[T]he issue ... is whether the jury actually rested its verdict on” an adequate basis, “independently of the” error. (Yates v. Evatt, supra, 500 U.S. at p. 404 [114 L.Ed.2d at p. 449].) Stated differently, whether the error had any “effect” “upon the . . . verdict in the case at hand.” (Sullivan v. Louisiana, supra, 508 U.S. at p._[124 L.Ed.2d at pp. 188-189, 113 S.Ct. at p. 2081].) Or in still other words, “whether the . . . verdict actually rendered in this trial was surely unattributable to the error.” (Ibid,., italics in original.)

As a consequence, the focus under Chapman is not what a reviewing court might itself decide if it looked to the entire record.

First, a reviewing court is not the proper decision-maker. (Sullivan v. Louisiana, supra, 508 U.S. at pp. - [124 L.Ed.2d at pp. 188-190, 113 S.Ct. at pp. 2081-2082].) To be sure, Rose v. Clark (1986) 478 U.S. 570, 579 [92 L.Ed.2d 460, 471, 106 S.Ct. 3101] (hereafter sometimes Clark) states that an error is harmless “[w]here a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt. . . .” Moreover, Pope v. Illinois (1987) 481 U.S. 497, 502-503 [95 L.Ed.2d 439,

*441446-447, 107 S.Ct. 1918] (hereafter sometimes Pope), quotes that language (albeit inaccurately) with approval. Questions about the soundness of Clark and Pope in this regard were raised by the analysis in Justice Scalia’s concurring opinion in Carella v. California (1989) 491 U.S. 263, 267-273 [105 L.Ed.2d 218, 222-223, 109 S.Ct. 2419] (hereafter sometimes Carella). They were soon resolved. Yates expressly declares that the Clark statement is simply “not. . . correct.” (Yates v. Evatt, supra, 500 U.S. at pp. 402-403, fn. 8 [114 L.Ed.2d at p. 449].) And Sullivan impliedly disapproves Pope’s approval of that language, relying as it does on Justice Stevens’s dissenting opinion in Pope: “The harmless-error doctrine may enable a court to remove a taint from proceedings in order to preserve a jury’s findings, but it cannot constitutionally supplant those findings.” (Pope v. Illinois, supra, 481 U.S. 497, 509 [95 L.Ed.2d at p. 451] (dis. opn. of Stevens, J.) italics in original, cited in Sullivan v. Louisiana, supra, 508 U.S. at p._[124 L.Ed.2d at pp. 188-190, 113 S.Ct. 439, 2082].) By its very terms, of course, Chapman precludes a reviewing court from finding harmlessness based simply “upon [its own] view of ‘overwhelming evidence.’ ” (Chapman v. California, supra, 386 U.S. at p. 23 [17 L.Ed.2d at pp. 710-711].)

Second, a reviewing court is not automatically entitled to consider the entire record. The broad “assumption” in decisions like Clark that the “harmlessness of an error is to be judged after a review of the entire record” is unsound—unless, that is, “the jurors, as reasonable persons, would have considered the entire . . . record” in spite of the error. (Yates v. Evatt, supra, 500 U.S. at pp. 405-406 [114 L.Ed.2d at p. 450].)

Neither is the focus under Chapman what a reviewing court might conjecture the jury would have decided in the absence of the error. The “hypothetical inquiry” whether, if the jury had not been exposed to the error, it would have made the decision it did, “is inconsistent with the harmless-error standard announced in Chapman .... While such a hypothetical inquiry ensures that the state has, in fact, proved [the element in question] beyond a reasonable doubt, it does not ensure that it has proved that element beyond a reasonable doubt to the satisfaction of a jury.” (Yates v. Evatt, supra, 500 U.S. 391, 414 [114 L.Ed.2d at p. 455] (conc. opn. of Scalia, J.), italics in original; accord, Sullivan v. Louisiana, supra, 508 U.S. at pp__-_ [124 L.Ed.2d at pp. 189-190, 113 S.Ct. at pp. 2081-2082].) “The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered . . . .” (Sullivan v. Louisiana, supra, 508 U.S. at p. _ [124 L.Ed.2d at p. 189, 113 S.Ct. at p. 2081].) Sullivan relies, in part, on Justice Stevens’s dissenting opinion in Pope: “It is fundamental that an appellate court (and for that matter, a trial court) is not free to decide in a criminal case that, if asked, a jury would have found

*442something that it did not find.” (Pope v. Illinois, supra, 481 U.S. 497, 509-510 [95 L.Ed.2d at p. 451], italics in original (dis. opn. of Stevens, J.), cited in Sullivan v. Louisiana, supra, 508 U.S. at p._[124 L.Ed.2d at pp. 189-190, 113 S.Ct. at p. 2082].)

Lastly, the focus under Chapman is not what a reviewing court might speculate concerning “what effect the . . . error might generally be expected to have upon a reasonable jury . . . .” (Sullivan v. Louisiana, supra, 508 U.S. at p. _ [124 L.Ed.2d at p. 189, 113 S.Ct. at p. 2081].) Thus, Pope's concern with what a “rational juror” might or might not find is beside the point. (Pope v. Illinois, supra, 481 U.S. at p. 503 [95 L.Ed.2d at pp. 446-447].) “[M]ore than appellate speculation about a hypothetical jury’s action” is required. (Sullivan v. Louisiana, supra, 508 U.S. at p._ [124 L.Ed.2d at p. 190, 113 S.Ct. at p. 2082].)

In determining whether the superior court’s instructional misdefinition of the “immediate presence” element was harmless under Chapman, we must commence our analysis with the declaration of Yates in mind: “To say that an error did not contribute to the verdict is . . .to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” (Yates v. Evatt, supra, 500 U.S. at p. 403 [114 L.Ed.2d at p. 449], italics added; accord, Sullivan v. Louisiana, supra, 508 U.S. atpp. [124 L.Ed.2d at pp. 188-189, 113 S.Ct. atpp. 2081-2082].)

But how are we to go about assessing the “importance” or “unimportance” of the instructional misdefinition?

Yates proceeds thus with regard to an instruction incorporating a mandatory rebuttable presumption of an element of a crime.

“[T]o say that an instruction to apply [such a] presumption did not contribute to the verdict is to make a judgment about the significance of the presumption to reasonable jurors, when measured against the other evidence considered by those jurors independently of the presumption.

“Before reaching such a judgment, a court must take two quite distinct steps. First, it must ask what evidence the jury actually considered in reaching its verdict. ... In answering this question, a court does not 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.

*443“Once a court has made the first enquiry into the evidence considered by the jury, it must then weigh the probative force of that evidence as against the probative force of the presumption standing alone. To satisfy Chapman’s reasonable doubt standard, it will not be enough that the jury considered evidence from which it could have come to the verdict without reliance on the presumption. Rather, the issue under Chapman is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption. Since that enquiry cannot be a subjective one into the jurors’ minds, a court must approach it by asking whether the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption.” (Yates v. Evatt, supra, 500 U.S. at pp. 403-405 [114 L.Ed.2d at p. 449].)

Put differently, the first question is “whether the jury’s verdict did rest on that evidence as well as on the presumptio[n] . . . .” (Yates v. Evatt, supra, 500 U.S. at p. 407 [114 L.Ed.2d at p. 451].)

The second question is “whether that evidence was of such compelling force as to show beyond a reasonable doubt that the presumptio[n] must have made no difference in reaching the verdict obtained”—in other words, whether the evidence of the presumed fact made the presumption superfluous. (Yates v. Evatt, supra, 500 U.S. at p. 407 [114 L.Ed.2d at p. 451].)

“It is only when the effect of the presumption is comparatively minimal to this degree that it can be said, in Chapman’s words, that the presumption did not contribute to the verdict rendered.” (Yates v. Evatt, supra, 500 U.S. at p. 405 [114 L.Ed.2d at p. 449].)

By parity of reasoning, 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. We must first objectively determine what instructions relating to the “immediate presence” element the jury actually applied in reaching its verdict. We must then objectively assess the instructional misdefinition vis-a-vis the other pertinent and proper instructions in their relative importance. It is not sufficient that the jury could have rendered the same verdict in the absence of the instructional misdefinition. Rather, it is necessary that the jury actually rendered its actual verdict without reliance thereon. This turns on whether the other pertinent and proper instructions are so implicated on the record as to *444compel a conclusion beyond a reasonable doubt that they must have made the instructional misdefinition superfluous. It 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.

On the record before us, we simply cannot say that the superior court’s instructional misdefinition of the “immediate presence” element did not contribute to the verdict.

Objectively determined, the instructions relating to the “immediate presence” element that the jury actually applied in reaching its verdict were these.

First, there was the instructional statement of the “immediate presence” element itself. It properly declared that property must be taken from the victim’s “person” or “immediate presence.”

Second, there was the instructional misdefinition of the “immediate presence” element. It erroneously defined “immediate presence” as the area within which the victim could perceive, by some sense, some “overt act” connected with the offense.

Objectively assessed, the instructional misdefinition of the “immediate presence” element was substantial in relative importance vis-á-vis the instructional statement of the element.

The crucial question is whether the jury actually rendered its actual verdict finding defendant guilty of robbery without reliance on the instructional misdefinition of the “immediate presence” element. An affirmative answer cannot be given.

The instructional statement of the “immediate presence” element was not so implicated on the record as to compel a conclusion beyond a reasonable doubt that it must have made the instructional misdefinition of the element superfluous.

Recall that the evidence adduced at trial revealed that defendant could possibly be found guilty of robbery, as either a direct perpetrator or an aider and abettor, with regard to the taking of four items or groups of items belonging to the victim: (1) the victim’s automobile and/or its contents; (2) the victim’s wallet and/or its contents; (3) certain of the victim’s possessions at his office; and (4) certain of the victim’s possessions at his residence. *445Although some of the takings of some of the items might satisfy the “immediate presence” element as from the victim’s “person,” most—as the prosecutor himself conceded—could do so only as from the victim’s “immediate presence” as the area within which he could perceive, by some sense, some “overt act” connected with the offense. All the takings of all the items had at least been spoken of by defendant and/or one or more of his partners within the victim’s hearing.

Recall further that the theory presented at trial by the People was that defendant was guilty of robbery, without specification, as either a direct perpetrator or an aider and abettor on the basis of any or all of the takings of any or all of the items; and that, as to the “immediate presence" element, that theory embraced “immediate presence” as the area within which the victim could perceive, by some sense, some “overt act” connected with the offense.

Manifestly, the People’s theory 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.

In view of the foregoing, we cannot conclude that the jury actually rendered its actual verdict finding defendant guilty of robbery without reliance on the instructional misdefinition of the “immediate presence” element. Surely, we cannot hold that the instructional statement of the element was so implicated on the record as to compel a conclusion beyond a reasonable doubt that it must have made the instructional misdefinition superfluous. Consistently with the People’s evidence and their theory, the jury must quickly and easily have found the element satisfied as to every taking of every item by either defendant himself or any of his partners by relying on the instructional misdefinition, which was broad enough to embrace all the takings of all the items by anyone. Of course, with more time and effort, individual jurors might have proceeded to find the element satisfied as to one or more individual takings of one or more individual items by either defendant or one of his partners by determining, in accordance with the instructional statement, that that taking of that item by that perpetrator was strictly from the victim’s “person.” But why?

Since, for these reasons, the instructional misdefinition of the “immediate presence” element cannot be characterized as minimal in importance compared to the instructional statement of that element, it cannot be held not to have contributed to the verdict.

*446Therefore, the superior court’s instructional misdefinition of the “immediate presence” element was reversible error under Chapman.

C

1

Although the majority agree that the superior court’s instructional misdefinition of the “immediate presence” element of the crime of robbery was erroneous under the United States Constitution, they conclude that the error was not reversible under Chapman. Their reasoning does not support their result.

In part, the majority appear to conclude that the instructional misdefinition of the “immediate presence” element was harmless under Chapman because the evidence was sufficient to support defendant’s conviction. Not so, that “the . . . evidence was sufficient to support the [conviction]” does not mean that “the State has proved ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” (Satterwhite v. Texas (1988) 486 U.S. 249, 258-259 [100 L.Ed.2d 284, 295, 108 S.Ct. 1792].) Obviously, if the evidence had been insufficient, the conviction would be invalid as violative of the Fourteenth Amendment’s due process clause (Jackson v. Virginia, supra, 443 U.S. at pp. 313-324 [61 L.Ed.2d at pp. 569-577]) and reprosecution of the underlying charge would be barred by the Fifth Amendment’s double jeopardy clause as applied against the states by the Fourteenth Amendment’s due process clause (Greene v. Massey (1978) 437 U.S. 19, 24 [57 L.Ed.2d 15, 20-21, 98 S.Ct. 2151]).

In other part, the majority appear to conclude that the instructional misdefinition of the “immediate presence” element was harmless under Chapman because, in conformity with Clark and Pope, we, as a reviewing court, “can find that the record developed at trial establishes guilt beyond a reasonable doubt . . . .” (Rose v. Clark, supra, 478 U.S. at p. 579 [92 L.Ed.2d at p. 471]; accord, Pope v. Illinois, supra, 481 U.S. at pp. 502-503 [95 L.Ed.2d at pp. 446-447].) I myself am persuaded of defendant’s guilt. I assume my colleagues are as well. But such views do not matter—not even when they are ornamented, as by the majority, with a word like “overwhelming.” Yates expressly declares Clark to be incorrect. Sullivan impliedly disapproves Pope. The jury is the proper entity to determine whether “the record developed at trial establishes guilt beyond a reasonable doubt” (Rose v. Clark, supra, 478 U.S. at p. 579 [92 L.Ed.2d at p. 471]); a reviewing court is not. (Sullivan v. Louisiana, supra, 508 U.S. at pp._-_[124 L.Ed.2d at pp. 188-189, 113 S.Ct. at pp. 2081-2082].) In his concurring opinion in *447Carella, Justice Scalia blocked the path that the majority would travel: “ [M] isdescription of an element of the offense” is “not curable by overwhelming record evidence of guilt.” (Carella v. California, supra, 491 U.S. at p. 270 [105 L.Ed.2d at p. 225] (conc. opn. of Scalia, J.).)

In still other part, the majority appear to conclude that the instructional misdefmition of the “immediate presence” element was harmless under Chapman because, on the evidence adduced, the jury could have or would have rendered a verdict of guilty in the absence of the error. Here too, I am persuaded and assume my colleagues are as well. But here too, such views do not matter.

Yates is pellucidly clear that it is “not. . . enough that the jury considered evidence from which it could have come to the verdict without reliance on the” error. (Yates v. Evatt, supra, 500 U.S. at p. 404 [114 L.Ed.2d at p. 449], italics added.)

And Sullivan is just as clear that it is not enough “that a jury would surely have found [the defendant] guilty beyond a reasonable doubt” absent the error. (Sullivan v. Louisiana, supra, 508 U.S. at p._[124 L.Ed.2d at pp. 189-190, 113 S.Ct. at p. 2082], italics in original.)

The majority imply that the question we must ask under Chapman is whether the evidence bearing on the “immediate presence” element, properly defined, was “overwhelming.”

That is not the question we must or even may ask under Chapman. If it were, an instruction misdefining the beyond-a-reasonable-doubt standard would be amenable to harmless error analysis. Sullivan squarely holds it is not. (Sullivan v. Louisiana, supra, 508 U.S. at pp._-_[124 L.Ed.2d at pp. 188-190, 113 S.Ct. at pp. 2081-2082].)

If the error here involved the instructional presumption of an element of a crime, we would inquire, to quote Yates, “whether the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption.” (Yates v. Evatt, supra, 500 U.S. at p. 405 [114 L.Ed.2d at p. 449], italics added.) In other words, “whether that evidence was of such compelling force as to show beyond a reasonable doubt that the presumptio[n] must have made no difference in reaching the verdict obtained.” (Id. at p. 407 [114 L.Ed.2d at p. 451], italics added.) In still other words, whether the evidence of the presumed fact made the presumption superfluous.

*448But since the error here involved the instructional misdefinition of an element of a crime and not the presumption thereof, we inquire, to follow the teaching of Yates, whether the other pertinent and proper instructions were so implicated on the record as to compel a conclusion beyond a reasonable doubt that they must have made the instructional misdefinition superfluous.

In this particular case: Was the instructional statement of the “immediate presence” element so implicated on the record as to compel a conclusion beyond a reasonable doubt that it must have made the instructional misdefinition of that element superfluous?

As explained, No. Consistently with the People’s evidence and their theory, the jury must quickly and easily have found the “immediate presence” element satisfied as to every taking of every item by either defendant himself or any of his partners by relying on the instructional misdefinition, which was broad enough to embrace all the takings of all the items by any perpetrator. Individual jurors had no reason to expend more time and effort to proceed further to find the element satisfied as to one or more individual takings of one or more individual items by either defendant or one of his partners by determining, in accordance with the instructional statement, that that taking of that item by that perpetrator was strictly from the victim’s “person.”

In yet other part, the majority appear to conclude that the instructional misdefinition of the “immediate presence” element was harmless under Chapman if the jury relied instead on the instructional statement of that element covering a taking from the victim’s “person.” Their “if’ is crucial. It is also unsupported. Indeed, as explained, the only reasonable inference is that the jury did in fact rely on the instructional misdefinition.

It follows that, under Yates, the instructional misdefinition of the “immediate presence” element cannot be found “unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” (Yates v. Evatt, supra, 500 U.S. at p. 403 [114 L.Ed.2d at p. 449], italics added; accord, Sullivan v. Louisiana, supra, 508 U.S. at pp._-_ [124 L.Ed.2d atpp. 188-189, 113 S.Ct. atpp. 2081-2082].) Under Chapman, therefore, the instructional misdefinition cannot be held not to have “contribut[ed] to the verdict obtained” “beyond a reasonable doubt.” (Chapman v. California, supra, 386 U.S. at p. 24 [17 L.Ed.2d at p. 710-711].) As a result, it was not harmless.

2

Although Justice Kennard in her concurring and dissenting opinion also agrees that the superior court’s instructional misdefinition of the “immediate *449presence” element of the crime of robbery was erroneous under the United States Constitution, she too concludes that the error was not reversible under Chapman. Her analysis is indeed thoughtful, but ultimately unpersuasive.1

I share the view that, in a situation in which the defendant admitted the element of the crime affected by an instructional error—which is not the case here—the error may perhaps be held harmless under Chapman. (E.g., People v. Johnson (1993) 6 Cal.4th 1, 60-61, fn. 2 [23 Cal.Rptr.2d 593, 859 P.2d 673] (cone. & dis. opn. of Mosk, J.).)

But I cannot accept the proposition that an instructional error affecting an element of a crime can be held harmless under Chapman if the defendant simply failed to dispute the underlying facts at trial.

The circumstances with which we are concerned assume that the defendant had entered a plea of not guilty—which put into dispute all the facts underlying all the elements constituting all the crimes charged (see Pen. Code, § 1019)—and had been tried by a jury—which was entrusted with the resolution of such facts in their entirety (see People v. Rowland (1992) 4 Cal.4th 238, 260 [14 Cal.Rptr.2d 377, 841 P.2d 897]).

Justice Kennard appears to reason thus: a defendant’s Sixth Amendment right to trial by jury does not extend to facts underlying an element of a crime that he fails to dispute at trial, and hence is not violated by an instructional error affecting the finding of such facts. Or phrased somewhat differently: A “defendant is [not] entitled to have the jury decide [any] issue of fact material to guilt” that is “undisputed” at trial. (Conc. & dis. opn. of Kennard, J., post, at p. 463.) I am not persuaded.

*450The Sixth Amendment right to trial by jury, Sullivan explains, “includes, . . . , as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of ‘guilty.’ . . .

“What the factfinder must determine to return a verdict of guilty is prescribed by the Due Process Clause. The prosecution bears the burden of proving all elements of the offense charged, [citations], and must persuade the factfinder ‘beyond a reasonable doubt’ of the facts necessary to establish each of those elements ....

“It is self-evident . . . that the [Fourteenth] Amendment requirement of proof beyond a reasonable doubt and the Sixth Amendment requirement of a jury verdict are interrelated.” (Sullivan v. Louisiana, supra, 508 U.S. at pp. [124 L.Ed.2d at p. 188, 113 S.Ct. at pp. 2080-2081].)

Accordingly, “[i]t would not satisfy the Sixth Amendment to have a jury determine that the defendant is probably guilty, and then leave it up to the judge to determine . . . whether he is guilty beyond a reasonable doubt.” (Sullivan v. Louisiana, supra, 508 U.S. at p._[124 L.Ed.2d at p. 188, 113 S.Ct. at p. 2081], italics in original.)

Similarly, it would not satisfy the Sixth Amendment to have a jury resolve some of the facts underlying the elements of the crime of which it determines the defendant guilty, and then leave it up to a judge to resolve the rest.2

The unsoundness of Justice Kennard’s analysis reveals itself in the untenable result that it yields.

To quote: “I do not mean to suggest that if all facts material to guilt were undisputed, the trial court could direct a verdict for the government or dispense with a jury verdict entirely and enter a judgment of conviction. I understand the Sixth Amendment to the federal Constitution as requiring a guilt determination by the jury, not by the court, even where the material facts are undisputed. What I am suggesting is that once the jury has made that determination, misinstruction on any single element of the charged offense, or indeed on every element of the offense, will be harmless if the element or elements in question were established by undisputed facts.” (Conc. & dis. opn. of Kennard, J., post, at p. 459, fii. 3, italics in original.)

*451The foregoing passage necessarily suggests that, although it would be error for a “trial court [to] direct a verdict for the government or dispense with a jury verdict entirely and enter a judgment of conviction,” it would nevertheless be harmless if the elements of the offense were established, to a reviewing court’s satisfaction, by facts that the defendant failed to dispute at trial.

That, however, cannot be the law. Indeed, it is not the law. Sullivan makes plain that “directed verdicts for the State” are not “sustainable on appeal . . . .” (Sullivan v. Louisiana, supra, 508 U.S. at p._[124 L.Ed.2d at p. 190, 113 S.Ct. at p. 2082].)3

Let us assume, for argument’s sake, that Justice Kennard’s analysis is sound to this point. She proceeds thus: The instructional misdefinition of the “immediate presence” element was harmless under Chapman because defendant failed to dispute at trial the facts establishing “immediate presence,” along with the other elements of the crime of robbery, as to the taking of the wallet from the victim’s “person.”

Unlike Justice Kennard, I cannot discern defendant’s undisputed guilt as a direct perpetrator of robbery. She asserts that “the force used to effect the taking of the wallet had not ceased when defendant joined the enterprise.” (Conc. & dis. opn. of Kennard, J., post, at p. 460.) Her implication seems to be that defendant participated in taking the item. He simply did not. Of course, he evidently participated in retaining the item. That, however, is another matter.

Unlike Justice Kennard, I also cannot discern defendant’s undisputed guilt as an aider and abettor of robbery. She asserts that, under the rule of People v. Cooper (1991) 53 Cal.3d 1158 [282 Cal.Rptr. 450, 811 P.2d 742] (hereafter sometimes Cooper), “[f]or purposes of determining liability as an aider and abettor, ‘the commission of a robbery continues until all acts constituting the offense have ceased.’ ” (Conc. & dis. opn. of Kennard, J., post, at p. 460, quoting with editorial modification People v. Cooper, supra, 53 Cal.3d at p. 1164.) The rule laid down by Cooper was new, and indeed novel. (People v. Cooper, supra, 53 Cal.3d atpp. 1171-1179 (dis. opn. of Kennard, *452J.).) Defendant was tried before Cooper. In fairness, he should not be penalized on appeal for failing to anticipate its applicability to his case. “ ‘[A] defendant in a criminal trial is justified, of course, in defending solely in reliance on the presumption of his innocence and the State’s burden of proof.’ ” (Conc. & dis. opn. of Kennard, J., post, at p. 458, fn. 2, quoting Connecticut v. Johnson (1983) 460 U.S. 73, 87, fn. 16 [74 L.Ed.2d 823, 835, 103 S.Ct. 969] (plur. opn. by Blackmun, J.).) If defendant had been tried after Cooper, he might have so defended.

IV

For the reasons stated above, although I would generally affirm defendant’s convictions, I would reverse as to robbery and the related crimes of murder and kidnapping for robbery.

At the outset, I disagree that “determining and applying the federal harmless error standard in a case like this” is “difficult].” (Conc. & dis. opn. of Kennard, J., post, at p. 461; see id. at pp. 452, 456.) Notwithstanding the implication to the contrary, there is no conflict between Yates and Sullivan, on the one side, and Clark and Pope, on the other. Rather, Yates expressly declares Clark to be incorrect and Sullivan impliedly disapproves Pope. It is true that in U.S. v. Whiting (1st Cir. 1994) 28 F.3d 1296, 1309, the court claimed to experience a similar “difficulty” as to harmless error analysis. But it did so only because it failed to recognize the effect of Yates and Sullivan on Clark and Pope.

I also disagree that we stand in need of “guidance” from the United States Supreme Court. (Conc. & dis. opn. of Kennard, J., post, at p. 462; see id. at p. 461.) We are under a solemn obligation to interpret and implement the United States Constitution. We are no less capable of discharging that duty than any other court. We “should disabuse [ourselves] of the notion that in matters of constitutional law and criminal procedure we must always play Ginger Rogers to the high court’s Fred Astaire—always following, never leading.” (People v. Cahill (1993) 5 Cal.4th 478, 557-558 [20 Cal.Rptr.2d 582, 853 P.2d 1037] (dis. opn. of Kennard, J.).) Of course, that court may decide to depart from its own precedents. But we cannot predict, and hence should not even attempt to anticipate, such changes in course. In any event, since our oath is to the Constitution and not to the court, we should put the matter out of mind altogether.

All this is not to say that a defendant may not waive his Sixth Amendment right to trial by jury, in whole or in part, in the course of the proceedings. Before trial, such a waiver must be knowing and voluntary. (Boykin v. Alabama (1969) 395 U.S. 238, 242-244 [23 L.Ed.2d 274, 279-280, 89 S.Ct. 1709].) During trial, the same is true. (Cf. People v. Adams (1993) 6 Cal.4th 570, 582 [24 Cal.Rptr.2d 831, 862 P.2d 831] [speaking of a stipulation of a fact].) Having reviewed the record in its entirety, I cannot find that defendant waived his right to any extent.

It is true that in U.S. v. Warren (9th Cir. 1993) 984 F.2d 325, 327, the court stated—with a quotation from one of its own relatively old decisions, United States v. King (9th Cir. 1978) 587 F.2d 956, 966, and without even a citation to any of the more recent United States Supreme Court decisions bearing on the issue, such as Yates and Sullivan—that “ ‘The failure to instruct on every element of an offense is harmless error ... if the omitted element is undisputed . . . .’ ” In U.S. v. Gaudin, supra, 28 F.3d at page 951, the court, sitting in bank, effectively repudiated that statement, holding that, under Yates and Sullivan, the omission of an element of an offense “cannot be harmless.”