I accept the majority’s statutory construction linking commitment as a sexually violent predator (SVP) to the risk of future “predatory” acts. (Welf. & Inst. Code, § 6600, subd. (e); see id., §§ 6600, subd. (a)(1), 6604.)1 1 also agree with the majority that failure to so instruct defendant’s jury was harmless, and that the challenged commitment order should not be reversed on this ground. I write separately, however, to question the majority’s explicit holding that the demanding Chapman2 standard of prejudice must apply—a holding that seems both unjustified and unnecessary in this case. I briefly address each point in turn.
The standard of prejudice to be applied in civil commitment proceedings to the form of error found here is more complicated than the majority suggests. The analytical framework appears in People v. Cahill (1993) 5 Cal.4th 478 [20 Cal.Rptr.2d 582, 853 P.2d 1037] (Cahill), which the majority fails to discuss in detail.
The general rule in this state is that in order to find “a miscarriage of justice” warranting reversal of the judgment (Cal. Const., art. VI, § 13), the reviewing court must believe “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243] (Watson).) The Watson standard “represents the harmless-error test generally applicable under current California law.” (Cahill, supra, 5 Cal.4th 478, 492, italics added.) It applies postjudgment to all kinds of cases, civil and *1196criminal, and to all forms of state law error, including error arising under the California Constitution. (Id. at pp. 488-492 & fn. 7, 501.)
California courts depart from Watson's reasonable-probability test only under narrow circumstances that depend upon the extraordinary nature of the error under review.3 First, federal constitutional error in a criminal trial, if susceptible to harmless error analysis at all, nonetheless requires reversal unless the reviewing court concludes beyond a reasonable doubt under Chapman v. California, supra, 386 U.S. 18, 24 [87 S.Ct. 824, 828], that the conviction was not tainted thereby. Instructional omission of an “element” of the charged offense violates a criminal defendant’s Sixth Amendment right to jury trial, and constitutes a form of federal constitutional error subject to Chapman review. (Neder v. United States (1999) 527 U.S. 1, 8-15 [119 S.Ct. 1827, 1833-1837, 144 L.Ed.2d 35]; see Cahill, supra, 5 Cal.4th 478, 482, 487, 502, citing Arizona v. Fulminante (1991) 499 U.S. 279, 307-308 [111 S.Ct. 1246, 1263-1264, 113 L.Ed.2d 302] (opn. of Rehnquist, C. J., speaking for a majority of the court) (Fulminante).)
Second, some constitutional rights, both state and federal, are so basic that their denial constitutes a “structural defect” that necessarily undermines the fairness of the proceedings and the reliability of the verdict. (Cahill, supra, 5 Cal.4th 478, 487.) Such cases defy harmless error review, and trigger neither the Watson reasonable-probability test otherwise applicable under California law, nor the Chapman reasonable-doubt test governing most violations of a criminal defendant’s federal constitutional rights. Errors of this magnitude— denial of counsel in a criminal case or trial before a biased judge—require reversal of the judgment notwithstanding the strength of the underlying evidence. (Cahill, supra, 5 Cal.4th at pp. 492-493, 501-502, citing Fulminante, supra, 499 U.S. 279, 309-310 [111 S.Ct. 1246, 1264-1265].)
Here, the majority squarely holds that erroneous failure to instruct on future predation is not “structural” or reversible per se. The majority observes that defendant had the motive and means to litigate the likelihood of future “predatory” acts at the probable cause stage (§ 6602, subd. (a)), that extensive evidence bearing on the issue was subsequently presented at trial, *1197and that defendant identifies no related evidence withheld from the jury’s consideration. For these reasons, the majority rejects defendant’s claim that harmless error review is “impossible” to perform in this case. (Maj. opn., ante, at p. 1191.) I agree. Like the majority, I would not automatically reverse the judgment or otherwise ignore the wealth of evidence used by the jury to commit defendant as an SVP.
However, the majority fails to further define the present instructional flaw for purposes of rejecting Watson and choosing Chapman as the applicable test of prejudice. We are artfully told that “constitutional error” in the definition of an SVP occurred at defendant’s commitment trial. (Maj. opn., ante, at pp. 1191, 1192.) However, the majority never pinpoints the constitutional provision, state or federal, that was supposedly breached. Nor does the majority indicate why Chapman should be extended beyond criminal cases. Absent such an analysis, the majority has not adequately explained why Chapman applies here.
To the extent the majority implies that omission of a statutory condition of commitment is analogous to withdrawal of an “element” in a criminal case (see Neder v. United States, supra, 527 U.S. 1, 8-15 [119 S.Ct. 1827, 1833-1837]), the argument lacks support under current law. The majority suggests, for instance, that California courts already use Chapman to review instructional error under other civil commitment schemes, that “federal constitutional error” has been found in such cases, and that no different standard should apply in SVP proceedings like this one. (Maj. opn., ante, at p. 1194.) The majority bases this assertion primarily on Conservatorship of Wilson (1982) 137 Cal.App.3d 132, 135-136 [186 Cal.Rptr. 748] (Wilson), which was followed without comment in Conservatorship of Early (1983) 35 Cal.3d 244, 255 [197 Cal.Rptr. 539, 673 P.2d 209] (Early).
In Wilson and Early, evidence and instructions were wrongly withheld on whether a proposed conservatee was “gravely disabled” and subject to involuntary confinement under the Lanterman-Petris-Short (LPS) Act. (§ 5000 et seq.) In reversing the ensuing conservatorship orders, both the Wilson and Early courts assumed that the beyond-a-reasonable-doubt standard of prejudice applied. However, neither Wilson nor Early offered any analysis or authority for this view. These 20-year-old cases also predate Cahill, supra, 5 Cal.4th 478, which authorizes departure from Watson’s reasonable-probability test only under rare conditions not present here. Indeed, the majority’s uncritical reliance on Wilson, supra, 137 Cal.App.3d 132, and Early, supra, 35 Cal.3d 244, simply begs the question to be decided—whether civil commitment orders receive the same level of harmless error review now reserved for federal constitutional error in criminal *1198cases. (Cf. Conservatorship of Warrack (1992) 11 Cal.App.4th 641, 648-649 [14 Cal.Rptr.2d 99] [finding no reasonable probability that erroneous failure to give a cautionary shackling instruction affected the outcome in an LPS commitment trial].)
In a related vein, the majority invokes Chapman on the theory that SVP proceedings are “comparable” to criminal cases in certain respects. (Maj. opn., ante, at p. 1192.) The majority emphasizes that under California statutory and constitutional law, the standard of proof for commitment as an SVP is proof beyond a reasonable doubt—the same standard of proof required for criminal conviction. (§ 6604; see People v. Burnick (1975) 14 Cal.3d 306, 310 [121 Cal.Rptr. 488, 535 P.2d 352].) The majority also suggests there is little difference between compulsory confinement as an SVP and incarceration as a convicted criminal.
However, this approach arguably resurrects a quasi-criminal view of commitment proceedings, which both the United States Supreme Court and this court have repeatedly disavowed. It is settled, for instance, that the federal Constitution does not require proof beyond a reasonable doubt at trial to confine mentally disordered and dangerous persons against their will. (Addington v. Texas (1979) 441 U.S. 418, 425-433 [99 S.Ct. 1804, 1808-1813, 60 L.Ed.2d 323].) The fact that California law departs from minimum federal guaranties and imposes such a heavy standard of proof in SVP proceedings does not compel a criminal law analogy. “[T]he use of procedural safeguards traditionally found in criminal trials [does] not mean that commitment proceedings [are] penal in nature. ‘. . . That [the state] chose to afford such procedural protections does not transform a civil commitment proceeding into a criminal prosecution.’ ” (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1174, fn. 33 [81 Cal.Rptr.2d 492, 969 P.2d 584], quoting Kansas v. Hendricks (1997) 521 U.S. 346, 364-365 [117 S.Ct. 2072, 2083-2084, 138 L.Ed.2d 501].)
Any further suggestion that SVP proceedings are “civil” in name only is misleading, and does not support the majority’s harmless error rule. Unlike the criminal justice system, which seeks deterrence and retribution through substantial prison terms, the present statutory scheme ensures that dangerously disordered sex offenders receive appropriate care and treatment from the state Department of Mental Health in a secure medical facility. The maximum two-year commitment period can be maintained and renewed only if strict procedural and substantive conditions are met. (Hubbart v. Superior Court, supra, 19 Cal.4th 1138, 1175-1178.) As the majority concedes, public protection and rehabilitation are the primary legislative aims. (See id. at p. 1175 [rejecting claim that “SVP’s are ‘sent to prison’ and confined under the same conditions as state prisoners”].)
*1199It bears emphasis that the United States Supreme Court has never decided whether instructional flaws in civil commitment proceedings amount to federal constitutional error and, if so, what standard of prejudice should apply. Absent high court authority compelling the result reached by the majority here, other state courts do not seem anxious to embrace Chapman under similar circumstances.
For example, in rejecting a vague and sweeping claim that instructions used in an SVP commitment matter were prejudicially inadequate, the Kansas Supreme Court cited civil cases and the general rules contained therein. (Matter of Hay (1998) 263 Kan. 822 [953 P.2d 666, 680] [noting the jury “ ‘ “could not reasonably be misled by” ’ ” the challenged instructions].) Courts in other jurisdictions have avoided specifying the applicable standard of prejudice where the instructions omit a statutory prerequisite to commitment. These decisions also refrain from characterizing such error as a federal constitutional violation. (In re W.R.G. (2002) 110 Wash.App. 328 [40 P.3d 1177, 1179-1180] [instructions withdrew question whether defendant “‘attempted or inflicted serious physical harm’ error was harmless because there was an alternative, proper basis for commitment]; Matter of Bumper (D.C. 1982) 441 A.2d 975, 977 [instructions omitted full range of treatment options needed to decide whether defendant “would benefit from treatment”; error was harmless since ample evidence conveyed the missing information]; cf. Thomas v. State (Mo. 2002) 74 S.W.3d 789, 791-792 [instructions failed to require mental disorder causing “ ‘serious difficulty’ ” controlling sexually violent behavior; SVP commitment orders reversed].)
Similar restraint is warranted here. As noted by the majority, the two-year commitment order under review has expired. The case is therefore technically “moot.” (Maj. opn., ante, at p. 1190.) This court also unanimously agrees that failure to instruct defendant’s jury on the “predatory” nature of future violent sex crimes is harmless under any standard other than per se reversal. Specifically, all seven members of the court find “ample evidence” that defendant—a convicted child molester clinically diagnosed as a high-risk pedophile—would continue desiring and sexually victimizing underage boys. (Maj. opn., ante, at p. 1195.) No evidence indicates that “his victims would not include strangers, casual acquaintances, or persons cultivated for victimization” within the meaning of section 6600, subdivision (e). (Maj. opn., ante, at p. 1195.)
Under these circumstances, I am of the strong view that we need not, and should not, use the present case to decide the standard for reversing SVP commitment orders where an instructional lapse occurs. For reasons stated *1200above, this significant and difficult question deserves closer scrutiny than the majority opinion provides.
Appellant’s petition for a rehearing was denied October 30, 2002, and the opinion was modified to read as printed above.
All further statutory references are to this code.
Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 828, 17 L.Ed.2d 705, 24 A.L.R.3d 1065],
As in Cahill, supra, 5 Cal.4th 478,1 do not include in my general description of harmless error principles the special test applied to all state law error at the penalty phase of a capital trial. Even where no federal constitutional violation has occurred, and assuming the judgment is not reversible per se, enhanced concerns over the reliability of death judgments require a standard “more exacting” than Watson for capital penalty phase error, i.e., whether there is a “ ‘reasonable possibility’ ” such error affected the verdict. (People v. Brown (1988) 46 Cal.3d 432, 447 [250 Cal.Rptr. 604, 758 P.2d 1135].)