I dissent.
The Sixth Amendment to the federal Constitution “gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged.” (United States v. Gaudin (1995) 515 U.S. 506, 522-523 [115 S.Ct. 2310, 2320, 132 L.Ed.2d 444].) The jury’s “constitutional responsibility,” the high court said in Gaudin, includes applying the law to the facts to determine the existence of each element of the crime—“that is, [the] ‘ultimate’ or ‘elemental’ fact[s]” needed to convict. (Id. at pp. 514-515 [115 S.Ct. at p. 2316].) No matter how inescapable a defendant’s guilt of an element may seem in light of the evidence presented, the judge must have the jury make the ultimate finding on each element of the crime charged. Here, however, the trial court’s instructions precluded the jury from independently determining one element of the charged offense.
Does this error require automatic reversal of defendant’s conviction? Or is it subject to the “harmless error” test of 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], which requires reversal for federal constitutional error unless the reviewing court concludes that “beyond a reasonable doubt” the error “did not contribute to” the jury’s verdict? I agree with the majority that the latter test governs this case. I differ with the majority, however, as to the manner in which the test should be applied here.
As I have pointed out in the past: “To determine whether an error ‘contributed to’ a verdict, a reviewing court does not ask whether a hypothetical jury in a hypothetical trial in which the error did not occur would surely have reached the same verdict. (Sullivan v. Louisiana (1993) 508 U.S. *549[275, 279] [124 L.Ed.2d at pp. 182, 188-189, 113 S.Ct. 2078, 2081].) Rather, the reviewing court must ask whether the guilty verdict actually rendered in this trial was ‘surely unattributable to the error.’ {Ibid.) This is because the Sixth Amendment right to jury.trial means that the jury, and not a reviewing court, must find beyond a reasonable doubt every fact needed to convict.” {People v. Harris (1994) 9 Cal.4th 407, 455-456 [37 Cal.Rptr.2d 200, 886 P.2d 1193] (cone. & dis. opn. of Kennard, J.), italics added.) This is the test that United States Supreme Court Justice Antonin Scalia articulated in his concurring opinion in Carella v. California (1989) 491 U.S. 263, 267 [109 S.Ct. 2419, 2421-2422, 105 L.Ed.2d 218], which the entire nine-member court later adopted in Sullivan v. Louisiana (1993) 508 U.S. 275 [113 S.Ct. 2078, 124 L.Ed.2d 182]. .
The majority rejects that approach, concluding it does not apply when evaluating the prejudicial effect of an instructional error that, as here, has removed an element of an offense from the jury’s consideration. Instead, proceeding by a novel approach of its own invention, the majority declares the error to be “harmless beyond a reasonable doubt.” I disagree. Because there is no basis for concluding that the jury’s guilty verdict was “surely unattributable to the error,” the error was not harmless beyond a reasonable doubt and the judgment must be reversed.
I
While evading a pursuing police car containing Richmond Police Officers Rudy Bridgeman and Michael Gurney, defendant’s car collided with a van, seriously injuring its occupants. Under Vehicle Code section 2800.1 (further undesignated statutory references are to this code), it is a misdemeanor for a driver “while operating a motor vehicle and with the intent to evade, [to] willfully flee[] or otherwise attempt[] to elude a pursuing peace officer’s motor vehicle” if that vehicle (1) “is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp”; (2) “is sounding a siren”; (3) “is distinctively marked”; and (4) “is operated by a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, and that peace officer is wearing a distinctive uniform.” The crime becomes a felony, however, when the defendant’s attempt to elude the pursuing peace officer “proximately causes death or serious bodily injury to any person” (§ 2800.3); that was the offense charged against defendant. Here, the trial court’s instruction to the jury included the statement, “Officers Bridgeman and Gurney are peace officers.” The jury found defendant guilty as charged.
II
To find defendant guilty of violating section 2800.3, the jury had to find, among other things, that he was trying to elude a car “operated by a peace *550officer.” In instructing the jury that “Officers Bridgeman and Gurney are peace officers,” the trial court removed from the jury’s consideration a necessary factual finding on an element of the offense.
As I observed in People v. Harris, supra, 9 Cal.4th 407, 457 (cone. & dis. opn. of Kennard, J.): “Under the United States Supreme Court’s decisions in Yates v. Evatt [(1991)] 500 U.S. 391 [111 S.Ct. 1884, 114 L.Ed.2d 432], and Sullivan v. Louisiana, supra, 508 U.S. [275, 279] [124 L.Ed.2d 182, 113 S.Ct. 2078], the focus of the harmless error arialysis is upon the verdict actually rendered in this case, not the verdict that would have been rendered in a hypothetical trial free of the instructional error. Thus, if an instructional error prevents the jury from making a necessary factual finding, it is generally irrelevant that the evidence supporting that finding was overwhelming.”
To determine whether instructional error “contributed to” the verdict within the meaning of the “harmless error” test of Chapman v. California, supra, 386 U.S. 18, the reviewing court must ask whether the guilty verdict actually rendered in this trial was “surely unattributable to the error.” (Sullivan v. Louisiana, supra, 508 U.S. 275, 279 [113 S.Ct. 2078, 2081].)
When can a reviewing court be assured that a jury’s guilty verdict actually rested on findings that the jury made and thus was “surely unattributable” to instructional error that removed from the jury’s consideration an element of the crime charged? One instance that comes to mind is when the jury has necessarily resolved the factual question under other properly given instructions. (California v. Roy (1996) 519 U.S. 7 [117 S.Ct. 337, 339-340, 136 L.Ed.2d 266] (cone. opn. of Scalia, J. [“if the jury verdict on other points effectively embraces this one”]); People v. Sedeño (1974) 10 Cal.3d 703, 721 [112 Cal.Rptr. 1, 518 P.2d 913].) That exception does not apply here, however, because the trial court’s instruction that “Bridgeman and Gurney are peace officers” precluded the jury from independently concluding otherwise.
Another instance of harmless error is described in Justice Scalia’s concurring opinion in Carella v. California, supra, 491 U.S. 263, 271 [109 S.Ct. 2419, 2423]: “When the predicate facts relied upon in the instruction, or other facts necessarily found by the jury, are so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact, making those findings is functionally equivalent to finding the element required to be presumed. The error is harmless because it is ‘beyond a reasonable doubt,’ Chapman v. California, 386 U.S. 18, 24 [87 S.Ct. 824, 828, 24 A.L.R.3d 1065] (1967), that the jury found the facts necessary to support the conviction.” (Accord, Sullivan v. Louisiana, supra, 508 U.S. 275, 280-281 [113 S.Ct. at pp. 2082-2083].)
*551In my concurring and dissenting opinion in People v. Osband (1996) 13 Cal.4th 622, 746 [55 Cal.Rptr.2d 26, 919 P.2d 640], I adapted that analysis to instructional error that omitted from the jury’s consideration one element of a special circumstance allegation. Under the law governing Osband, the jury could return a “true” finding on the felony-murder special-circumstance allegation only if persuaded that the defendant acted with “intent to kill.” (People v. Osband, supra, 13 Cal.4th at pp. 746-747 (cone. & dis. opn. of Kennard, J.).) Based on the jury’s finding that defendant killed the victim, a frail, 66-year-old woman, by brutally beating and stabbing her, I concluded that the facts the jury necessarily found in the course of its determination that defendant committed the killing were “functionally equivalent” to a finding that in doing so the defendant had acted with the requisite intent to kill. (Ibid.)
This case is distinguishable from Osband. It is true that by finding defendant guilty of violating section 2800.3, the jury must have necessarily found the statutory elements that defendant was fleeing from a “distinctively marked” car displaying “at least one lighted red lamp visible from the front” and “sounding a siren.” These determinations, however, are not “functionally equivalent” (Carella v. California, supra, 491 U.S. 263, 271 [109 S.Ct. 2419, 2423-2424] (cone. opn. of Scalia, J.)) to a finding that the driver of the “distinctively marked” car was indeed a peace officer within the meaning of the statute. Therefore, the jury’s findings were not “so closely related to the ultimate fact” (ibid.) of whether the driver of the pursuing car was a peace officer that no rational jury could find those other elements without also finding that ultimate fact. Stated another way, nothing in the jury’s findings or verdict establishes that the jury independently, uninfluenced by the trial court’s erroneous jury instruction, made a finding on the ultimate fact in issue, namely whether the driver of the pursuing car was indeed a peace officer within the meaning of section 2800.3.
A third instance in which failure to have a jury determine the existence of an element can be harmless error is when the defendant concedes or admits the omitted element. (Carella v. California, supra, 491 U.S. 263, 271 [109 S.Ct. 2419, 2423-2424] (cone. opn. of Scalia, J.).) I relied on this exception in my concurring and dissenting opinion in People v. Harris, supra, 9 Cal.4th 407, 452. There, the trial court had misinstructed the jury on the “taking” necessary to commit a robbery. I concluded that the instructional error was harmless because the defendant through his own testimony and his lawyer’s closing argument had admitted “every fact needed to convict” him of the robbery including facts sufficient to establish the necessary taking. (Id. at p. 459 (cone. & dis. opn. of Kennard, J.).)
As I explained in Harris: “When a fact is undisputed, it is reasonable to assume that the jury accepted it as true, because ordinarily the jury would *552have no reason to do otherwise. But it does not follow that the jury actually rested its verdict on the undisputed fact. An erroneous jury instruction may cause a jury to dismiss as irrelevant an undisputed fact that is essential to the guilt determination. Thus, an undisputed fact does not ‘cure’ an instructional error by providing assurance that the jury actually rested its verdict on the undisputed fact. [^] The reason undisputed facts ‘cure’ instructional error may be found in the nature of the constitutional guarantee of jury trial.” {People v. Harris, supra, 9 Cal.4th 407, 459 (cone. & dis. opn. of Kennard, J.).)
I pointed out in Harris that the right to jury trial in criminal cases includes a right to have the jury rather than a court decide every “issue of fact” necessary to establish the elements of the charged offense. {People v. Harris, supra, 9 Cal.4th 407, 459 (cone. & dis. opn. of Kennard, J.).) When, however, the defendant has admitted a fact or the parties have stipulated to its existence, there is nothing left for the jury to resolve with regard to that one issue. {Ibid.)
Defendant’s “not guilty” plea in this case put in issue every fact necessary to convict him of the charged offense. (Pen. Code, § 1019; People v. Balcom (1994) 7 Cal.4th 414, 422 [27 Cal.Rptr.2d 666, 867 P.2d 777].) As the majority acknowledges, defendant “did not affirmatively admit—through testimony or by stipulation, for example—that Bridgeman and Gurney were peace officers.” (Maj. opn, ante, at p. 504.) In this respect, this case differs from the situation described in my concurring and dissenting opinion in People v. Harris, supra, 9 Cal.4th 407.
Here, when the trial court instructed the jury that the occupants of the pursuing car were peace officers, the trial court and not the jury made the actual finding on the existence of an “ultimate fact” needed to convict defendant of a violation of section 2800.3: that the car he was evading was, in the words of the statute, “operated by a peace officer.” Because defendant did not concede the issue, the trial court’s instruction deprived defendant of his Sixth Amendment right to have the jury determine, beyond a reasonable doubt, “his guilt of every element of the crime with which he is charged.” {United States v. Gaudin, supra, 515 U.S. 506, 522-523 [115 S.Ct. 2310, 2320].) Accordingly, I cannot conclude beyond a reasonable doubt that the error in this case did not affect “the guilty verdict actually rendered” {Sullivan v. Louisiana, supra, 508 U.S. 275, 279 [113 S.Ct. 2078, 2081]) by the jury.
Ill
The majority concludes that the trial court’s error in removing an element of the charge from the jury’s consideration was harmless beyond a reasonable doubt. {Chapman v. California, supra, 386 U.S. 18, 24 [87 S.Ct. 824, *553828].) To reach this conclusion, the majority does not articulate a coherent theory of “harmless error” applicable to instructional error removing an element from the jury. Instead, it concocts a novel approach consisting of a hodgepodge of reasons. It is unclear whether any one of these reasons would render the instructional error harmless, or whether harmlessness can be deduced from the totality of reasons.
According to the majority, “defendant effectively conceded” the peace officer issue by requesting “the CALJIC instruction that included the optional, bracketed phrase instructing the jury that the officers were peace officers, and nothing in the record suggests that he objected to the trial court’s informing the jury that Bridgeman and Gurney were peace officers.” (Maj. opn., ante, at pp. 504-505, italics added.)
Here are the relevant facts: In instructing the jury on the elements necessary to prove the charged crime, the trial court used a version of CALJIC No. 12.86 that included an optional bracketed phrase “[_is a peace officer.]”1 At the prosecution’s request, the trial court used the bracketed version to instruct the jury, “Officers Bridgeman and Gurney are peace officers.” Defendant too had asked the court to give CALJIC No. 12.86, and he did not object to the modified version just described. But, as the majority acknowledges, “Nothing in the record . . . indicates that defendant specifically asked the court to give the optional peace officer portion of CALJIC No. 12.86.” (Maj. opn., ante, at p. 478.)
The majority reads far too much into defendant’s request for CALJIC No. 12.86, a standard jury instruction defining the charged crime. Defendant was entitled to have the jury instructed on the general principles of law raised by the evidence. {People v. Daniels (1991) 52 Cal.3d 815, 885 [277 Cal.Rptr. 122, 802 P.2d 906]; 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Trial, § 2924, pp. 3584-3586.) Chief among these “general principles” are the elements the jury must find to return a guilty verdict on the charged crime. {People v. Cummings (1993) 4 Cal.4th 1233, 1311 [18 Cal.Rptr.2d
*554Furthermore, our law does not require an accused to object to erroneous jury instructions. (Pen. Code, § 1259.) Defendant was therefore under no obligation to object to the erroneous instruction that precluded the jury from independently determining the existence of the “peace officer” element of the offense with which defendant was charged. “[A] fact becomes undisputed in a criminal trial only if the defense affirmatively concedes it.” (People v. Harris, supra, 9 Cal.4th at p. 458, fn. 2 (cone. & dis. opn. of Kennard, J.).) Thus, contrary to the majority’s assertion, defendant did not by his silence “effectively” acquiesce in, agree with, or concede to the giving of the modified instruction.
The majority also asserts that “the jury resolved every contested issue in favor of the prosecution,” noting the jury’s findings that the car pursuing defendant was “distinctively marked” and that its occupants were wearing “distinctive” uniforms. (Maj. opn., ante, at p. 505.) But the majority never explains how these jury findings on elements other than the one at issue here render the trial court’s instructional error harmless. Whatever findings the jury did make in finding defendant guilty of violating section 2800.3, it was never asked to decide whether the pursuing vehicle was, in the words of the statute, “operated by a peace officer.” (See ante, p. 550.) Nor are any of the elements that the jury did find so closely related to the ultimate fact in issue—whether the driver of the pursuing car was indeed a peace officer within the meaning of section 2800.3—that no rational jury could find those elements without also finding the ultimate fact in issue. (Ante, at p. 551.)
The majority also concludes that this case satisfies the requirements of the so-called “Cantrell-Thomton exception,” which this court fashioned in People v. Garcia (1984) 36 Cal.3d 539, 555-556 [205 Cal.Rptr. 265, 684 P.2d 826]. Garcia involved the failure to instruct “that proof of intent to kill or to aid a killing” was (under the law at that time) required for a finding on the felony-murder special circumstance.2 This court reviewed then recent decisions by the United States Supreme Court and concluded that “at least eight justices of the United States Supreme Court . . . agree that a jury instruction which does take an issue .completely from the jury is reversible per se.” (People v. Garcia, supra, at p. 554.) Nonetheless, in the view of the Garcia court, the error could be harmless in cases “where the parties *555recognized that intent to kill was in issue, presented all evidence at their command on that issue, and in which the record not only establishes the necessary intent as a matter of law but shows the contrary evidence not worthy of consideration.” (Id. at p. 556, fn. omitted.)
Here, the majority attempts to justify its reliance on the Cantrell-Thomton exception on the ground that “the United States Supreme Court never has overturned a decision affirming a judgment on the basis of the CantrellThomton exception.” (Maj. opn., ante, at p. 506.) What the majority omits to mention, however, is that the high court has never reviewed a decision affirming a judgment on the basis of the Cantrell-Thomton exception. I am aware of no case (and the majority cites none) in which this court has relied exclusively on Cantrell-Thomton to uphold a conviction after the trial court omitted an element from the jury’s consideration. It is true that some decisions of our Courts of Appeal have used the Cantrell-Thomton reasoning. But in the nearly 10 years since Justice Scalia, in his concurring opinion in Carella v. California, supra, 491 U.S. 263, 267 [109 S.Ct. 2419, 2421-2422], articulated a harmless error approach to evaluate prejudice when a trial court’s instructional error has invaded the jury’s factfinding function, only 2 published Court of Appeal decisions (People v. Richie (1994) 28 Cal.App.4th 1347 [34 Cal.Rptr.2d 200]; People v. Riederer (1990) 217 Cal.App.3d 829 [266 Cal.Rptr. 355]) have relied on Cantrell-Thomton to affirm a conviction rendered after the trial court omitted an element of the crime from the jury’s consideration. In neither case did the defendant seek review in the United States Supreme Court. Thus, so far as I have been able to determine, the question whether the Cantrell-Thomton reasoning comports with federal constitutional standards has never been squarely presented to the high court.
The Cantrell-Thomton exception does not satisfy federal constitutional standards for deciding whether a jury’s verdict was “surely unattributable to the error” (Sullivan v. Louisiana, supra, 508 U.S. 275, 279 [113 S.Ct. 2078, 2081]). Using Cantrell-Thomton, a reviewing court can deem constitutional error harmless without ever deciding, as required by the high court in Sullivan, that the error surely had no effect on “the guilty verdict actually rendered.” (Ibid.) The majority does not claim that the Cantrell-Thomton exception comports with Sullivan. Rather, as the majority sees it, reviewing courts need not engage in the Sullivan mode of analysis in cases such as this in which the trial court’s removal of a crime element from jury consideration was merely “misinstruction on a peripheral issue.” (Maj. opn., ante, at p. 507.) It is the majority’s mistaken view that the Sixth Amendment right to jury trial is fully satisfied if a jury returns a guilty verdict on a criminal charge after deciding some but not all of its elements. But the Sixth Amendment requires more. It “gives a criminal defendant the right to have a *556jury determine ... his guilt of every element of the crime with which he is charged.” (United States v. Gaudin, supra, 515 U.S. 506, 522-523 [115. S.Ct. 2310, 2320], italics added.)3
*557Conclusion
“The constitutional right to a jury trial embodies ‘a profound judgment about the way in which law should be enforced and justice administered.’ Duncan v. Louisiana, 391 U.S. 145, 155 [88 S.Ct. 1444, 1450, 20 L.Ed.2d 491] (1968). It is a structural guarantee that ‘reflects] a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges.’ Id.., at 156 [88 S.Ct. at p. 1451]. A defendant may assuredly insist upon observance of this guarantee even when the evidence against him is so overwhelming as to establish guilt beyond a reasonable doubt. That is why the Court has found it constitutionally impermissible for a judge to direct a verdict for the State.” (Carella v. California, supra, 491 U.S. 263, 268 [109 S.Ct. 2419, 2422] (cone. opn. of Scalia, J.).) No matter how overwhelming the evidence, the defendant has the right to have the jury and not the judge determine every element of a charged offense.
Here, the trial court improperly removed from the jury’s consideration an element of the criminal charge. Because there is no basis here for concluding beyond a reasonable doubt that the trial court’s error did not contribute to the jury’s verdict of “guilty” in this case, I would reverse the judgment.
As relevant here, CALJIC 12.86 (1993 new) (5th ed. pocket pt.) reads: “[Defendant_ is accused [in count[s]_] of having violated Vehicle Code Section 2800.3, a crime.] [^Q Every person who, while operating a motor vehicle and with the specific intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer, and [H] (1) The peace officer’s motor vehicle is exhibiting at least one lighted red lamp visible from the front, and the person either sees or reasonably should have seen the lamp; ft[] (2) The peace officer’s motor vehicle is sounding a siren as may be reasonably necessary; ftl] (3) The peace officer’s motor vehicle is distinctively marked; and [1[] (4) The peace officer’s motor vehicle is operated by a peace officer wearing a distinctive uniform; [1] is guilty of a violation of Vehicle Code section 2800.1, a misdemeanor. fl[] Every person who flees or attempts to elude a pursuing peace officer in violation of Vehicle Code Section 2800.1 and the flight or attempt to elude causes death or serious bodily injury to any person is guilty of a violation of Vehicle Code section 2800.3, a felony. R[] [__is a peace officer.]” (Italics added.) *554796, 850 P.2d 1].) Defendant’s obvious purpose in requesting the standard jury instruction was to ensure that the jury would be instructed on the elements of the offense, not to remove one of those elements from the jury’s consideration.
The Cantrell-Thomton exception is named after two earlier cases, People v. Cantrell (1973) 8 Cal.3d 672 [105 Cal.Rptr. 792, 504 P.2d 1256], and People v. Thornton (1974) 11 Cal.3d 738 [114 Cal.Rptr. 467, 523 P.2d 267], that provided the basis for the Garcia court’s analysis.
Justice Werdegar has authored a concurring opinion agreeing with the majority’s reliance on the Cantrell-Thomton exception but disagreeing “that we may find the instructional error harmless on the theory the error concerned only a ‘peripheral’ element of the charged crime, or that defendant conceded the issue at trial.” (Cone.' opn. of Werdegar, J., ante, at p. 508.) As I have already explained, Cantrell-Thomton is not good law.
Justice Chin has signed the majority opinion. He has also written a concurring opinion “to emphasize a narrow basis for finding the error harmless” here. (Cone. opn. of Chin, J., ante, at p. 521.) In support, he quotes this language from Justice Scalia’s concurrence in California v. Roy, supra, 519 U.S. 2, 7 [117 S.Ct. 337,. 339-340] (cone. opn. of Scalia, J.): “ ‘The error . . . can be harmless only . . . if it is impossible, upon the evidence, to have found what the verdict did find without finding this point as well.’ ” (Cone. opn. of Chin, J., ante, at p. 521, italics in original.) Justice Chin then concludes in this case: “The verdict shows the jury rejected the defense position on every contested point beyond a reasonable doubt. This jury believed the critical witnesses’ testimony, even those portions the defense challenged. This jury could not possibly find what it actually did find without also finding the unchallenged missing element.” (Ibid., italics in original.)
Contrary to Justice Chin’s assertion, here the jury findings on issues that did not subsume the “peace officer” element, an issue the trial court removed from the jury, will not meet the standard taken from Justice Scalia’s concurrence in Roy. Instead of quoting a selective sentence from a paragraph in Justice Scalia’s concurrence in Roy, Justice Chin should have quoted the rest of the paragraph: “The absence of a formal verdict on this point cannot be rendered harmless by the fact that, given the evidence, no reasonable jury could have found otherwise. To allow the error to be cured in that fashion would be to dispense with the trial by jury. ‘The Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action, or else directed verdicts for the state would be sustainable on appeal; . . .’” (California v. Roy, supra, 519 U.S. at p. 7 [117 S.Ct. at p. 339] (cone. opn. of Scalia, J.).) As I have pointed out earlier, “nothing in the jury’s findings or verdict establishes that the jury independently, uninfluenced by the trial court’s erroneous jury instruction, made a finding on the ultimate fact in issue, namely, whether the driver of the pursuing car was indeed a peace officer within the meaning of section 2800.3.” (Ante, p. 551.)
Justice Mosk decides as I do that the judgment must be reversed, but he considers the instructional error in this case to be “automatically reversible” (dis. opn. by Mosk, J., ante, at p. 525) while I do not. Omitting an element from the jury’s consideration is not the sort of error that “ ‘defiles] analysis by “harmless error” standards.’ ” (Sullivan v. Louisiana, supra, 508 U.S. 275, 281 [113 S.Ct. 2078, 2082], quoting Arizona v. Fulminante (1991) 499 U.S. 279, 309 [111 S.Ct. 1246, 1264-1265, 113 L.Ed.2d 302].)
The diversity of views expressed in the several opinions in this case suggests that, as I have noted before, the controlling federal standard pertaining to harmless errror is not as clear as it might be, and further elucidation by the United States Supreme Court would thus be useful. (People v. Harris, supra, 9 Cal.4th 407, 460-461 (cone. & dis. opn. of Kennard, J.); see also People v. Wims (1995) 10 Cal.4th 293, 328, fn. 10 [41 Cal.Rptr.2d 241, 895 P.2d 77] (cone. & dis. opn. of Kennard, J.); People v. Osband, supra, 13 Cal.4th 622, 745, fn. 3 (cone. & dis. opn. of Kennard, J.).) As I observed in Harris, this court is not free to chart its own course on matters of federal constitutional law, “such as application of the federal harmless error standard under Chapman v. California, supra, 386 U.S. 18, 24 [87 S.Ct. 824, 828]”; instead, we must follow the rulings of the United States Supreme Court. (Harris, at p. 461, fn. 4 (cone. & dis. opn. of Kennard, J.).)