Filed 3/20/17




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                               S231644
           v.                        )
                                     )                        Ct.App. 4/2 E062540
ANDRE MERRITT,                       )
                                     )                       San Bernardino County
           Defendant and Appellant.  )                     Super. Ct. No. FVI1300082
____________________________________)


        A jury convicted defendant Andre Merritt of two counts of robbery and
found true allegations that he personally used a firearm during both robberies.
However, the trial court failed to give the standard jury instruction on the elements
of robbery. The failure to instruct on the elements of a charged crime is serious
constitutional error that impacts a defendant‘s fundamental right to a jury trial.
We must decide whether the error can ever be found harmless.
        In People v. Cummings (1993) 4 Cal.4th 1233 (Cummings), this court held
similar error to be reversible per se. However, developments since then, including
the high court decision in Neder v. United States (1999) 527 U.S. 1 (Neder), have
made that holding obsolete. Obviously, the more elements that the instructions
omit, the more likely it is that the error is prejudicial. But we see no need to hold
categorically that error in failing to instruct on elements of the offense can never
be found harmless. Instead, harmless error analysis applies if the error at issue
does not ― ‗vitiat[e] all the jury‘s findings.‘ ‖ (Id. at p. 11.) No such vitiation



                SEE CONCURRING AND DISSENTING OPINIONS.
occurred here. Although this jury did not receive the standard robbery
instructions, it was instructed on the mental state required for the crime, on the
need to find defendant‘s identity as the perpetrator, and on the elements of the
firearm use allegation. In such circumstances, the error is not reversible per se but
is reversible unless harmless beyond a reasonable doubt.
         At trial, defendant conceded that the perpetrator, whoever he was, was
guilty of robbery, i.e., that all of the elements of robbery were present. His
defense was solely that he was not the perpetrator. The crimes were recorded,
making the concession virtually compelled. Because of this concession and other
circumstances, the error, serious though it was, was harmless beyond a reasonable
doubt.
                      I. FACTUAL AND PROCEDURAL HISTORY
         On December 19, 2012, around 5:00 p.m., Kristen Wickum was working at
the front counter of Storage Direct, in Victorville. A man approached the front
counter, pulled out a gun, and demanded money. Frightened, Wickum gave the
man around $338. The man broke the office telephone, and then left. He was
wearing a ―hoody,‖ but Wickum could see his face. Wickum identified defendant
as the perpetrator from a photographic lineup, although she could not identify him
at trial. A video camera recorded the events. The recording was played for the
jury.
         Around 6:20 p.m. the same day, Christian Lopez was working at La
Mexicana, a convenience store in Victorville. A man pointed a gun at Lopez and
demanded money. Fearful that the man would shoot him, Lopez gave him around
$700. The man kicked Lopez in the back as he left the store. Lopez identified
defendant in court as the perpetrator and had previously identified him from a
photographic lineup. An audio and video camera recorded the events. The
recording was played for the jury.

                                          2
       Defendant presented an alibi defense. Defendant‘s mother testified that the
night of December 18, 2012, she picked him up from the local jail and took him
home, where he and others celebrated his release from jail. The group smoked
marijuana and played video games. The party lasted ―at least two or three days.‖
Defendant‘s mother testified that defendant never left the house from 5:00 p.m. to
around 6:00 p.m., December 19, 2012. He was at home ―on the computer.‖ She
said he did not leave the house for about four days after being released from jail.
Defendant‘s brother testified that he specifically remembered defendant being
home from around 4:30 p.m. to 6:30 p.m. the afternoon of December 19, 2012.
       A San Bernardino County Sheriff‘s detective testified in rebuttal that he
was present when defendant was interviewed. Defendant said he was at home
―earlier in the day‖ on December 19, 2012, but then he walked to a friend‘s
residence, where he spent the night of December 19.
       Defendant was charged with two counts of robbery with a firearm use
allegation. (Pen. Code, §§ 211, 12022.53, subd. (b).) The trial court did not give
the jury the standard instruction on the elements of robbery. (CALCRIM No.
1600.) It did instruct the jury that the ―specific intent and mental state required for
the crime of robbery is the specific intent to permanently deprive the owner of the
property when it is taken.‖ It also instructed the jury on the firearm use allegation.
The instruction required the jury to find that defendant either displayed the
weapon in a menacing manner, hit someone with the weapon, or fired the weapon.
(CALCRIM No. 3146.)
       Additionally, the court instructed the jury that the ―People have the burden
of proving beyond a reasonable doubt that it was the defendant who committed the
crime. If the People have not met this burden you must find the defendant not
guilty.‖ It also instructed that the ―People must prove that the defendant
committed the crimes charged . . . . The defendant contends he did not commit

                                           3
these crimes and that he was somewhere else when the crimes were committed.
The People must prove that the defendant was present and committed the crimes
with which he is charged. The defendant does not need to prove he was elsewhere
at the time of the crime. If you have a reasonable doubt about whether the
defendant was present when the crime was committed you must find him not
guilty.‖
       In his argument to the jury, the prosecutor said, ―The instructions are that
the defendant took property that was not his own. That the property was in the
possession of another person. Property was taken from the other person or
immediate presence. Property was taken against that person‘s will. The defendant
used force or fear to take the property or prevent the person from resisting. And,
finally, when the defendant used force or fear to take the property intended to
deprive the owner of it permanently. You‘ll see the instruction in the instructions
also that the employee owns the property of the business. So you have all this.‖
       In his argument to the jury, defense counsel said, ―Now, [the prosecutor]
already went through the elements of robbery. Number 1, the defendant took
property that was not his own. Two, the property was in the possession of another
person. Three, the property was taken from the other person or her immediate
presence. The property was taken against that person‘s will and the defendant
used force or fear to take the property or to prevent the person from resisting. And
when the defendant used force or fear to take the property, he intended to deprive
the owner of it permanently. That‘s [legalese] for, he intended to steal it. Now,
there is no question here, as [the prosecutor] said, no question these people were
robbed, okay. Our only contention is with element number one that it was not the
defendant. Not the defendant.‖
       The jury convicted defendant of both counts of robbery and found the
firearm use allegations true. The court sentenced him accordingly. On appeal, he

                                          4
argued that the judgment must be reversed because the trial court failed to instruct
the jury on the elements of robbery. The Attorney General conceded the error but
argued it was harmless beyond a reasonable doubt. Relying on Cummings, supra,
4 Cal.4th 1233, the Court of Appeal found the error reversible per se and reversed
the judgment.
       We granted the Attorney General‘s petition for review.
                                   II. DISCUSSION
        Because the court failed to give the standard instruction on the elements of
robbery and, instead, instructed only on the required mental state element, the jury
was not instructed on the following elements of robbery: (1) defendant took
property that was not his own; (2) the property was in the possession of another
person; (3) the property was taken from the other person or his or her immediate
presence; (4) the property was taken against that person‘s will; and (5) the
defendant used force or fear to take the property or to prevent the person from
resisting. (Pen. Code, § 211; see CALCRIM No. 1600.)
       Not instructing on these elements of robbery is constitutional error. The
trial court has a sua sponte duty to instruct the jury on the essential elements of the
charged offense. (People v. Mil (2012) 53 Cal.4th 400, 409 (Mil).) It is, indeed,
very serious constitutional error because it threatens the right to a jury trial that
both the United States and California Constitutions guarantee. (U.S. Const., 6th
Amend.; Cal. Const., art. I, § 16.) All criminal defendants have the right to ―a jury
determination that the defendant is guilty of every element of the crime with
which he is charged, beyond a reasonable doubt.‖ (United States v. Gaudin (1995)
515 U.S. 506, 510; accord, Apprendi v. New Jersey (2000) 530 U.S. 466, 477.)
       ―The right to have a jury make the ultimate determination of guilt has an
impressive pedigree. Blackstone described ‗trial by jury‘ as requiring that ‘the
truth of every accusation . . . should afterwards be confirmed by the unanimous

                                            5
suffrage of twelve of [the defendant‘s] equals and neighbors . . . .‘ 4 W.
Blackstone, Commentaries on the Laws of England 343 (1769) (emphasis added).
Justice Story wrote that the ‗trial by jury‘ . . . right was designed ‗to guard against
a spirit of oppression and tyranny on the part of rulers,‘ and ‗was from very early
times insisted on by our ancestors in the parent country, as the great bulwark of
their civil and political liberties.‘ [2 Story, Commentaries on the Constitution of
the United States (4th ed. 1873) pp. 540-541.]‖ (United States v. Gaudin, supra,
515 U.S. at pp. 510-511, fn. omitted.)
       We must decide whether error in failing to instruct on the elements of
robbery is amenable to harmless error analysis and, if so, whether the error was
harmless in this case.

       A. Is the Error Amenable to Harmless Error Analysis?
       In Cummings, supra, 4 Cal.4th 1233, the codefendant, Gay, was convicted
of multiple counts of robbery, attempted robbery, and conspiracy to commit
robbery. As in this case, the court instructed the jury on the mental state required
for robbery but otherwise failed to instruct on the elements of the crime. The
failure to so instruct was obviously error. (Id. at pp. 1311-1312.) We considered
the effect of the error.
       After reviewing the then-existing United States Supreme Court decisions,
we found the error not subject to harmless error analysis but instead reversible per
se. We explained that the high court ―decisions make a clear distinction between
instructional error that entirely precludes jury consideration of an element of an
offense and that which affects only an aspect of an element. Moreover, none
suggests that a harmless error analysis may be applied to instructional error which
withdraws from jury consideration substantially all of the elements of an offense
and did not require by other instructions that the jury find the existence of the facts



                                           6
necessary to a conclusion that the omitted element had been proved.‖ (Cummings,
supra, 4 Cal.4th at p. 1315.) Accordingly, and ―regardless of the merits of the
People‘s argument that Gay did not dispute the existence of the predicate facts and
that the evidence overwhelmingly established all of the elements of robbery,
attempted robbery, and conspiracy to commit robbery,‖ we reversed Gay‘s
robbery-related convictions. (Ibid.)
       Much has happened since we decided Cummings, supra, 4 Cal.4th 1233. In
Neder, supra, 527 U.S. 1, the trial court ―erred in refusing to submit the issue of
materiality to the jury with respect to those charges involving tax fraud.‖ (Id. at p.
4.) The United States Supreme Court ―h[e]ld that the harmless-error rule of
Chapman v. California, 386 U.S. 18 (1967), applies to this error.‖ (Ibid.)
       The high court noted that it had previously ―recognized that ‗most
constitutional errors can be harmless.‘ [Citation.] ‗[I]f the defendant had counsel
and was tried by an impartial adjudicator, there is a strong presumption that any
other [constitutional] errors that may have occurred are subject to harmless-error
analysis.‘ [Citation.] Indeed, we have found an error to be ‗structural,‘ and thus
subject to automatic reversal, only in a ‗very limited class of cases.‘ [Citations.]
[¶] The error at issue here — a jury instruction that omits an element of the
offense — differs markedly from the constitutional violations we have found to
defy harmless-error review. . . . [¶] Unlike such defects as the complete
deprivation of counsel or trial before a biased judge, an instruction that omits an
element of the offense does not necessarily render a criminal trial fundamentally
unfair or an unreliable vehicle for determining guilt or innocence.‖ (Neder, supra,
527 U.S. at pp. 8-9.)
       Neder compared the error before it to the error in Sullivan v. Louisiana
(1993) 508 U.S. 275 — a defective reasonable doubt instruction — that the court
had found reversible per se. It explained that the Sullivan court ―concluded that

                                          7
the error was not subject to harmless-error analysis because it ‗vitiates all the
jury‘s findings,‘ [citation], and produces ‗consequences that are necessarily
unquantifiable and indeterminate,‘ [citation]. By contrast, the jury-instruction
error here did not ‗vitiat[e] all the jury‘s findings.‘ ‖ (Neder, supra, 527 U.S. at p.
11.)
       The Neder court agreed with the Government‘s argument ―that the absence
of a ‗complete verdict‘ on every element of the offense establishes no more than
that an improper instruction on an element of the offense violates the Sixth
Amendment‘s jury trial guarantee. The issue here, however, is not whether a jury
instruction that omits an element of the offense was error (a point that is
uncontested . . . ), but whether the error is subject to harmless-error analysis.‖
(Neder, supra, 527 U.S. at p. 12.) Noting that the defendant had not contested
materiality, the court also stated that ―[r]eversal without any consideration of the
effect of the error upon the verdict would send the case back for retrial — a retrial
not focused at all on the issue of materiality, but on contested issues on which the
jury was properly instructed.‖ (Id. at p. 15.) It added that, under the
circumstances, a reversible per se rule ―would justify the very criticism that
spawned the harmless-error doctrine in the first place: ‗Reversal for error,
regardless of its effect on the judgment, encourages litigants to abuse the judicial
process and bestirs the public to ridicule it.‘ R. Traynor, The Riddle of Harmless
Error 50 (1970).‖ (Id. at p. 18.)
       Accordingly, the court concluded that the error could be found harmless if
the reviewing court determines beyond a reasonable doubt that it did not
contribute to the verdict. (Neder, supra, 527 U.S. at p. 15.) Or, slightly
differently, the court described the harmless error inquiry as this: ―Is it clear
beyond a reasonable doubt that a rational jury would have found the defendant
guilty absent the error?‖ (Id. at p. 18.)

                                            8
       Several years after it decided Neder, supra, 527 U.S. 1, the high court
reaffirmed its holding. (Hedgpeth v. Pulido (2008) 555 U.S. 57.) It viewed Neder
as ―mak[ing] clear that harmless-error analysis applies to instructional errors so
long as the error at issue does not categorically ‗ ―vitiat[e] all the jury‘s
findings.‖ ‘ ‖ (Id. at p. 61.)
       More recently, this court considered whether instructional error that omitted
two elements from the jury charge (in that case, two elements of a special
circumstance allegation) was also amenable to harmless error review. (Mil, supra,
53 Cal.4th 400.) We concluded it was, although we found the error prejudicial in
that case.
       In Mil, we rejected the defendant‘s argument that Neder, supra, 527 U.S. 1,
permits a harmless error assessment only when a single element was omitted. ―In
our view, the omission of two elements from the jury charge ‗differs markedly‘
from the constitutional violations that have been found to defy harmless error
review. (Neder, supra, 527 U.S. at p. 8.) . . . [A]n instruction that omits two
elements of an offense or special circumstance allegation, like an instruction that
omits only one element, ‗does not necessarily render a criminal trial
fundamentally unfair or an unreliable vehicle for determining guilt or innocence.‘
(Id. at p. 9.) Where an instruction omits some elements of the offense or
allegation, but the elements were uncontested and supported by overwhelming
evidence, it would not necessarily follow that the trial was fundamentally unfair or
an unreliable vehicle for determining guilt or innocence.‖ (Mil, supra, 53 Cal.4th
at pp. 410-411.) ―[T]he incursion on the right to a jury trial occurs whether the
instruction omits one element or multiple elements of the offense, yet both the
high court and this court have already held that the omission of an element of the
offense is amenable to harmless error analysis.‖ (Id. at p. 411, citing Neder, at p.
13, and People v. Flood (1998) 18 Cal.4th 470, 490.)

                                            9
       As did Neder, supra, 527 U.S. 1, we distinguished Sullivan v. Louisiana,
supra, 508 U.S. 275 — where the high court found a defective reasonable doubt
instruction reversible per se — on the basis that in Sullivan, the error undermined
every jury finding underlying the guilty verdict, while the error before us did not
do so. We explained that in contrast to the Sullivan error, ―an instruction that
omitted some — but not all — of the elements of an offense or special
circumstance allegation would prevent a jury finding on the affected elements but
would not necessarily vitiate all the jury‘s findings.‖ (Mil, supra, 53 Cal.4th at p.
411.) (The phrase ―but not all‖ in this discussion should be interpreted as referring
to an instruction that omitted every fact the jury had to find to convict, including
identity. Identity is generally not considered an element of the crime (see People
v. Ledesma (2006) 39 Cal.4th 641, 721), but, whatever label it is given, it is a
finding the jury must make beyond a reasonable doubt in all criminal trials.)
―Although it may prove more difficult, as a practical matter, to establish
harmlessness in the context of multiple omissions, that is not a justification for a
categorical rule forbidding an inquiry into prejudice.‖ (Mil, at p. 412.)
       Given the different ways in which elements can be described or subdivided,
we noted the ―utter artificiality‖ of a rule that would limit the harmless inquiry to
the omission of a single element. (Mil, supra, 53 Cal.4th at p. 412.) ―The critical
inquiry, in our view, is not the number of omitted elements but the nature of the
issues removed from the jury‘s consideration. Where the effect of the omission
can be ‗quantitatively assessed‘ in the context of the entire record (and does not
otherwise qualify as structural error), the failure to instruct on one or more
elements is mere ‗ ―trial error‖ ‘ and thus amenable to harmless error review.
(Arizona v. Fulminante (1991) 499 U.S. 279, 307-308.)‖ (Id. at pp. 413-414.)
       We rejected the defendant‘s argument that permitting harmless error review
―will encourage other incursions on the right to a jury trial and erode the incentive

                                          10
to instruct with due care . . . . An instructional error involving multiple elements,
like an error involving a single element, will be deemed harmless only in unusual
circumstances, such as where each element was undisputed, the defense was not
prevented from contesting any or all of the omitted elements, and overwhelming
evidence supports the omitted element. The possibility that this set of
circumstances might occasionally exist is unlikely to affect the practices of
attorneys or courts in the general run of criminal trials, which, after all, are
conducted to resolve contested issues of fact underlying the elements of a crime.
On the other hand, holding the error harmless under these circumstances ‗does not
―reflect a denigration of the constitutional rights involved‖ ‘; rather, ‗it ―serve[s] a
very useful purpose insofar as [it] block[s] setting aside convictions for small
errors or defects that have little, if any, likelihood of having changed the result of
the trial.‖ ‘ (Neder, supra, 527 U.S. at p. 19.)‖ (Mil, supra, 53 Cal.4th at p. 414.)
       We distinguished, but did not overrule, Cummings, concluding that
removing two elements from the jury‘s consideration was different from ―the
omission of ‗substantially all of the elements of an offense,‘ as occurred in
Cummings, supra, 4 Cal.4th at page 1315.‖ (Mil, supra, 53 Cal.4th at p. 415.)
Now that the same error that occurred in Cummings has occurred in this case, the
time has come to decide whether Cummings should still be followed today.
       We believe the rule established in Cummings, supra, 4 Cal.4th 1233, is as
artificial as the rule the defendant urged in Mil, supra, 53 Cal.4th 400. What
Neder said about the omission of a single element, and Mil about the omission of
two elements, applies equally to the omission of more than two elements. As will
be seen in the next part, where we consider the question of prejudice, the error
here does not ― ‗defy‘ ‖ harmless error analysis (Neder, supra, 527 U.S. at p. 7),
but is readily susceptible to such analysis. Certainly, the more elements that are



                                           11
omitted, the less likely it is that the error is harmless, but so long as the error does
not vitiate all of the jury‘s findings, it is amenable to harmless error analysis.
       The error here vitiated some of the jury‘s findings, but not all of them. It
did not vitiate the finding that defendant acted with the mental state required for
robbery. It did not vitiate the finding that he personally used a firearm during the
commission of the offenses. Perhaps crucially, it did not vitiate the finding on the
only contested issue at trial: defendant‘s identity as the perpetrator.
       In urging this court to follow Cummings, defendant argues that because
―Neder repeatedly emphasized the issue there was the omission of ‗an‘ element or
a ‗single‘ element,‖ it does not control this case. It is true Neder repeatedly uses
the singular in describing the missing element, but that is because only one
element was missing. As explained, however, its reasoning applies to the
omission of multiple elements as long as the omissions do not vitiate all of the
jury‘s findings.
       Defendant also argues that subsequent high court decisions, such as Blakely
v. Washington (2004) 542 U.S. 296, Ring v. Arizona (2002) 536 U.S. 584, and
Apprendi v. New Jersey, supra, 530 U.S. 466, that expanded defendants‘ jury trial
rights, have made Neder ―no longer valid.‖ Those cases found a violation of the
jury trial right in certain situations. But as Neder itself explained, the issue is not
whether the error violated a jury trial right — it did — ―but whether the error is
subject to harmless-error analysis.‖ (Neder, supra, 527 U.S. at p. 12.) The cases
defendant cites say nothing about this issue. They do not undermine Neder.
Indeed, the high court has specifically held that the erroneous failure to submit a
sentencing factor to the jury in violation of Blakely v. Washington is subject to
harmless error analysis under Neder. (Washington v. Recuenco (2006) 548 U.S.
212, 218-222; see Hedgpeth v. Pulido, supra, 555 U.S. 57 [reaffirming Neder].)



                                           12
       We agree with the dissent that an instructional error or omission that
amounts to the total deprivation of a jury trial would be structural error, that is,
reversible per se. (Dis. opn., post, at p. 5.) That is not remotely what occurred
here. Both attorneys described the elements of robbery to the jury, and did so
accurately and completely. (See discussion, post, at p. 15.) The error did not
vitiate three of the jury‘s findings: (1) that defendant acted with the mental state
required for robbery, (2) that he used a firearm, and (3) that he was the perpetrator.
Defendant received a full and fair jury trial, with complete and correct
instructions, on the question of identity, the only contested issue at trial. There
was no total deprivation of a jury trial.
       In response to the dissent‘s rhetoric, we see nothing in this opinion that will
encourage trial courts simply to tell the jury to convict the defendant of something
if it finds he or she did something, anything, wrong, or to permit appellate courts
to affirm convictions based on such instructions. (Dis. opn., post, at pp. 9-11.)
Again, that is not remotely what occurred here. (See Neder, supra, 527 U.S. at p.
17, fn. 2 [the court‘s response to the dissent‘s similarly exaggerated claims].) We
are also not engaging in appellate factfinding any more than did the court in
Neder. Instead, we are assessing what effect the error had on the verdict.
       The out-of-state cases the dissent cites are either consistent with this
opinion or are distinguishable. State v. Bunch (N.C. 2010) 689 S.E.2d 866 is
consistent with this opinion. That case found harmless the failure to instruct on
multiple elements of the offense. As the dissent notes (dis. opn., post, at p. 6), the
Bunch court did not additionally hold that the failure to instruct on all of the
elements could be found harmless. That question was not before the court. In
People v. Duncan (Mich. 2000) 610 N.W.2d 551, the jury convicted the defendant
of two counts of murder and two counts of what the appellate court called ―felony-
firearm.‖ (Id. at p. 552.) But the trial court never instructed the jury on any of the

                                            13
elements of felony firearm. As far as the opinion indicates, it does not appear that
the parties discussed with the jury that crime separately from the main murder
charge or that the defense made any concession. The jury was only given the ―title
of the crime.‖ (Id. at p. 555.) The Michigan Supreme Court found the error
reversible per se. Among the reasons it gave is that it is ―possible that the failure
to provide any of the elements of the charge may have suggested to the jury that
the two charges were tie-barred, i.e., if the jury found defendant guilty of murder,
they were then to find defendant guilty of felony-firearm.‖ (Ibid.) Here, by
contrast, there was no tying of a secondary crime to a main crime, and, as
discussed, the jury was not entirely ignorant of the elements of the charged crime.
Finally, in Harrell v. State (Miss. 2014) 134 So.3d 266, the Mississippi Supreme
Court rejected Neder, supra, 527 U.S. 1, entirely and, as a matter of independent
state grounds, ―h[e]ld that it is always and in every case reversible error for the
courts of Mississippi to deny an accused the right to have a jury decide guilt as to
each and every element.‖ (Harrell, at p. 275.) We have not rejected Neder.
       For these reasons, we conclude that the rule of People v. Cummings, supra,
4 Cal.4th 1233, 1311-1315, has no continuing validity. The error of this case, like
the errors in Neder, supra, 527 U.S. 1, and Mil, supra, 53 Cal.4th 400, is amenable
to harmless error analysis. In the next part, we undertake that analysis.

       B. Is the Error Prejudicial in This Case?
       We must determine whether it is clear beyond a reasonable doubt that a
rational jury would have rendered the same verdict absent the error. (Neder,
supra, 527 U.S. at p. 18.) The circumstances here compel the conclusion the error
was harmless.
       The jury was not entirely ignorant of the elements of robbery. Although the
court did not instruct on the elements (except the mental state), attorneys for both



                                          14
parties accurately described the elements of robbery in front of the jury. The court
instructed the jury to follow its instructions rather than the attorneys‘ comments on
the law, but only to the extent those comments conflicted with the court‘s
instructions. Because the court gave no instruction on most of the elements of
robbery, the attorneys‘ comments did not conflict with any instruction.
Accordingly, the jury might well have considered these comments in its
deliberations. (See People v. Jennings (2010) 50 Cal.4th 616, 678 [the
prosecutor‘s discussion of the missing element a factor to consider in determining
prejudice].) We do not suggest this circumstance cured the error. It is the court‘s
duty to instruct the jury, not the parties‘. But it is a factor to consider in
determining prejudice.
       After reviewing the elements, defense counsel, in an obvious attempt to
maintain credibility with the jury and to focus its attention on the defense theory of
the case — defendant was not the perpetrator — expressly conceded that the
perpetrator, whoever he was, committed robbery. ―One situation in which
instructional error removing an element of the crime from the jury‘s consideration
has been deemed harmless is where the defendant concedes or admits that
element.‖ (People v. Flood, supra, 18 Cal.4th at p. 504; see Connecticut v.
Johnson (1983) 460 U.S. 73, 87.)
       The evidence presented to the jury virtually forced this concession. Both
crimes were captured on tape that was played to the jury. The recordings were
such that defendant could argue he was not the person in the recording, but they
did not allow him to argue credibly that no robbery occurred. The recording of the
Storage Direct incident, which had no audio, shows the perpetrator wielding a gun
and the victim handing over money before lying down on the floor. It also shows
the perpetrator breaking the office telephone. The recording of the La Mexicana
incident, which included audio, shows the perpetrator wielding a gun, yelling at

                                           15
the victim to lie down, demanding that the victim hand over money, and
threatening to shoot the victim. The victim asks the perpetrator not to hurt him.
The perpetrator kicks the victim in the back before leaving the store.
       Defendant knew what the elements of robbery were, and he had the
opportunity to present any evidence he wished on the subject. ―[W]here a
reviewing court concludes beyond a reasonable doubt that the omitted element
was uncontested and supported by overwhelming evidence, such that the jury
verdict would have been the same absent the error, the erroneous instruction is
properly found to be harmless.‖ (Neder, supra, 527 U.S. at p. 17.)
       Moreover, what the jury, properly instructed, necessarily found supports the
conclusion the error did not contribute to the verdict. The jury resolved the only
contested issue in the prosecution‘s favor when it found defendant was the
perpetrator. (See People v. Flood, supra, 18 Cal.4th at p. 505.) It also found that
defendant acted with the mental state required for robbery and used a firearm
during the commission of the offenses. No reasonable jury that made all of these
findings could have failed to find the remaining elements of robbery. (People v.
Chun (2009) 45 Cal.4th 1172, 1204-1205.)
       Finally, the evidence that both robberies occurred was overwhelming and
uncontroverted. Both victims provided unchallenged testimony that they were
robbed, and the jury could view the incidents on videotape. ―[A] court, in typical
appellate-court fashion, asks whether the record contains evidence that could
rationally lead to a contrary finding with respect to the omitted element.‖ (Neder,
supra, 527 U.S. at p. 19.) Here, the record contains no such evidence with respect
to the omitted elements of robbery.
       For all of these reasons, we find the error harmless beyond a reasonable
doubt. Because all of these circumstances exist in this case, and combined they



                                         16
show the error to be harmless, we express no opinion on what other circumstances
in other cases might or might not permit a finding of harmless error.
       We stress that this kind of error should never occur. One of the trial court‘s
most basic duties is to instruct the jury on the elements of the crime. We assume
the error here was solely due to inadvertence. No doubt the court intended to give
the necessary instruction but somehow neglected to do so, and no one noticed.
But a reviewing court should not have to go through this exercise. Certainly, a
jury trial is a difficult undertaking. There is much to think about and much to do,
often under considerable pressure. But the instructions are an important part of the
process and care should be taken to ensure that they are correct and actually given.
We also believe the prosecution bears responsibility for ensuring the jury is
properly instructed. It is in its best interest to make sure the record does not
contain obvious and serious error.
                                 III. CONCLUSION
       We reverse the judgment of the Court of Appeal and remand the matter for
further proceedings consistent with this opinion, including resolving any
remaining issues.
                                                     CHIN, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CORRIGAN, J.
KRUGER, J.




                                          17
                      CONCURRING OPINION BY LIU, J.

       The court characterizes the main question before us as whether the trial
court‘s failure to instruct the jury on the elements of robbery ―is amenable to
harmless error analysis.‖ (Maj. opn., ante, at p. 13.) Although I agree that some
form of harmless error review is appropriate, I believe such review is more
circumscribed in this context than today‘s opinion suggests.
       In Neder v. United States (1999) 527 U.S. 1 (Neder), the high court held
that a failure to instruct the jury on a single element of a criminal offense is subject
to harmless error analysis. A reviewing court, in asking whether a ―rational jury
would have found the defendant guilty absent the error,‖ may look to whether
―uncontroverted evidence‖ supports a finding on the omitted element. (Id. at
pp. 18–19.) In People v. Mil (2012) 53 Cal.4th 400 (Mil), we extended Neder‘s
holding to the omission of two elements of a criminal offense, reasoning that ―an
instruction that omitted some — but not all — of the elements of an offense or
special circumstance allegation would prevent a jury finding on the affected
elements but would not necessarily vitiate all the jury‘s findings.‖ (Mil, at p. 411;
see Neder, at p. 11 [restating the holding in Sullivan v. Louisiana (1993) 508 U.S.
275, 281, that an instructional error that ― ‗vitiat[es] all the jury‘s findings‘ ‖ is not
subject to harmless error analysis].)
       Today‘s opinion concludes that the logic of Neder and Mil ―applies equally
to the omission of more than two elements‖ of an offense and thus undermines
People v. Cummings (1993) 4 Cal.4th 1233, which held that an instructional error


                                            1
that withdraws from the jury ―substantially all of the elements of an offense‖ is not
subject to harmless error analysis. (Id. at p. 1315.) But this case does not require
us to reconsider Cummings. Although that case also involved the omission of an
instruction on robbery, the case before us differs in one important respect: Here,
unlike in Cummings, defense counsel expressly conceded that a robbery had taken
place. In closing argument, defense counsel correctly stated for the jury each of
the elements of robbery, repeating what the prosecutor had said. Defense counsel
then said there was ― ‗no question these people were robbed, okay. Our only
contention is with element number one that it was not the defendant. Not the
defendant.‘ ‖ (Maj. opn., ante, at p. 4.) The defendant in Cummings ―did not
dispute that the offenses shown by the evidence were robbery‖ (Cummings, at
p. 1312), but a decision not to contest one or more elements of an offense is not
tantamount to a concession and does not relieve the prosecution of its burden of
proof (Estelle v. McGuire (1991) 502 U.S. 62, 69).
       In light of defense counsel‘s correct articulation of the elements of robbery,
followed by an express concession that a robbery had occurred, this is a case
where ―a defendant himself has taken the [conceded] issue . . . away from the
jury,‖ leaving the jury with only the question of identity. (Connecticut v. Johnson
(1983) 460 U.S. 73, 87 (plur. opn.); see People v. Flood (1998) 18 Cal.4th 470,
504 [―One situation in which instructional error removing an element of the crime
from the jury‘s consideration has been deemed harmless is where the defendant
concedes or admits that element.‖].) It is on the basis of defense counsel‘s
concession (and there is no allegation here of ineffective assistance of counsel)
that I find the instructional error harmless beyond a reasonable doubt.
       The court today notes, among its reasons for finding the error harmless, that
―the evidence that both robberies occurred was overwhelming and
uncontroverted.‖ (Maj. opn., ante, at p. 16.) This is unnecessary to the holding

                                          2
and, in my view, unwarranted. It is true that Neder and Mil authorize reviewing
courts, in applying harmless error analysis, to consider whether the evidence on
the omitted element or elements was ―overwhelming‖ and ―uncontested.‖ (Neder,
supra, 527 U.S. at p. 17; see Mil, supra, 53 Cal.4th at p. 414.) However, there is
no escaping the fact that when a reviewing court considers the strength of the
evidence in order to fill a gap in the jury‘s findings, the court is wading into the
factfinding role reserved for the jury. (See Neder, supra, 527 U.S. at p. 18; id. at
p. 27 (conc. opn. of Stevens, J.); id. at pp. 34–39 (dis. opn of Scalia, J.); see also
People v. Jackson (2014) 58 Cal.4th 724, 790 (conc. & dis. opn. of Liu, J.) [―The
risk of an appellate court usurping the jury‘s role becomes especially great when
harmless error analysis focuses not on whether error might have affected the jury‘s
decisionmaking, but on whether there was overwhelming evidence to support the
result.‖].) The high court in Neder acknowledged that the failure to instruct the
jury on an element of the offense ―infringe[s] upon the jury‘s factfinding role‖ but
concluded that ―an appropriate balance‖ must be struck ―between ‗society‘s
interest in punishing the guilty [and] the method by which decisions of guilt are to
be made.‘ ‖ (Id. at p. 18.) Although appellate factfinding is permitted to cure a
failure to instruct on one or two elements, at some point the severity of the error
must tip the balance the other way. A reviewing court goes too far in exercising
the jury‘s function when it undertakes its own evaluation of the evidence in
determining whether a wholesale failure to instruct the jury on the elements of an
offense is harmless.
       In any event, today‘s opinion is a narrow one. It does not hold that a
reviewing court may find that a trial court‘s failure to instruct on all elements of a
crime is harmless solely or primarily on the strength of the evidence. Rather, in
finding the error harmless in this case, the opinion considers the evidence together
with several other factors: defense counsel expressly conceded a robbery had

                                           3
occurred, both parties correctly explained the elements of robbery to the jury, the
jury had been instructed on the mental state of robbery, and the jury found that
defendant used a firearm during the commission of the offense. (Maj. opn., ante,
at pp. 13–15.) It is ―[f]or all of these reasons‖ that the court ―find[s] the error
harmless beyond a reasonable doubt. Because all of these circumstances exist in
this case, and combined they show the error to be harmless, we express no opinion
on what other circumstances in other cases might or might not permit a finding of
harmless error.‖ (Id. at pp. 16–17, italics added.)
       For the reasons above, I concur in the judgment.
                                                   LIU, J.




                                           4
                     DISSENTING OPINION BY CUÉLLAR, J.

          Ask almost any lawyer or well-informed citizen and she will tell you that
criminal adjudication in the United States is supposed to work something like this:
Legislators define crimes, judges explain to juries the definitions of crimes a
defendant is accused of committing, and jurors decide whether, beyond a
reasonable doubt, the defendant engaged in the criminal acts charged. (See Pen.
Code, § 6; United States v. Hudson & Goodwin (1812) 11 U.S. (7 Cranch) 32, 34;
see also In re Winship (1970) 397 U.S. 358, 361 [―The requirement that guilt of a
criminal charge be established by proof beyond a reasonable doubt dates at least
from our early years as a Nation.‖].) In this familiar and longstanding framework
Americans find far more than just a guide to courtroom dramas and police
procedural shows. Instead this framework preserves a link between criminal
justice and democracy –– specifically, between criminal statutes enacted by the
public‘s democratic representatives and the integrity of an adjudicatory process
assigning a specific role to judges and another to community members serving as
jurors.
          That process broke down completely in this case. Legislators had indeed
defined the crime of robbery, but the jurors who convicted Andre Merritt of that
crime were at no point given this definition by the judge. Merritt was charged
with two robberies, and defense counsel argued at trial that someone other than
Merritt had committed the crimes. The judge then told jurors that they had to find
whether Merritt committed ―the crime of robbery.‖ Though at certain points the


                                           1
lawyers offered arguments about what constitutes robbery, the judge never told the
jurors what the law required. And so without the benefit of instruction on the
concept of ―robbery‖ — or indeed, even a literal recitation of the statutory
elements — jurors were left to decide whether the defendant committed whatever
they each felt robbery was. The jury then found Merritt guilty, and the judge
sentenced him to over 19 years in prison for these crimes.
       The jury that made Merritt a criminal found guilt based on little more than
the title of a crime — ―robbery,‖ a word the judge used several times but never
once defined. So Merritt‘s trial lacked the connection to democratic accountability
of a jury applying a crime definition specified by their elected representatives.
The jurors were sent to deliberate about whether Merritt committed robbery
without any judicial instruction on how California defines that particular crime.
When a jury‘s deliberation is in no way structured by the facts that the Legislature
singled out as necessary for a conviction, jurors might as well have been asked
nothing more than, ―do you think the defendant is guilty of anything?‖ This
problem of unstructured, unmoored jury deliberation is prejudicial in a way that
cannot be measured.
       The rule that jurors must decide if the defendant committed the charged
crime is enshrined in both the United States Constitution and California‘s
Constitution. (See U.S. Const., 6th Amend; Cal. Const., art. I, § 16.) These twin
―guarantees of jury trial in the Federal and State Constitutions reflect a profound
judgment about the way in which law should be enforced and justice
administered.‖ (Duncan v. Louisiana (1968) 391 U.S. 145, 155.) I agree with the
majority that those guarantees were broken in this case. Where I must part ways
with the majority is the conclusion that this error was harmless. The majority uses
video evidence to decide a question that the jury was never asked — whether
Merritt‘s conduct met California‘s definition of robbery. In my view, finding guilt

                                          2
in this way ―invade[s] the truth-finding task assigned solely to juries in criminal
cases.‖ (Carella v. California (1989) 491 U.S. 263, 265.)
       By concluding that even a total failure to define a crime can be harmless,
the majority overrules a quarter century of our precedent. This court held in
People v. Cummings (1993) 4 Cal.4th 1233 that ―instructional error which
withdraws from jury consideration substantially all of the elements of an offense‖
is never harmless. (Id. at p. 1315.) The facts in Cummings were identical in all
material respects to those here. Both juries convicted a defendant of robbery
without any instruction on this crime‘s definition, though both juries were given
an intent instruction. At Merritt‘s trial, this instruction told jurors that the ―mental
state required for the crime of robbery is the specific intent to permanently deprive
the owner of the property.‖ But what was ―the crime of robbery‖? The judge
never explained. Jurors were thus left to believe that they could define that term
— which the judge repeated over and over again but gave no definition of — on
their own. Cummings held that ―never‖ was the right answer to the question of
when this kind of error could be harmless — even in cases where the defendant
―did not dispute the existence of the predicate facts‖ or where ―the evidence
overwhelmingly established all of the elements.‖ (Ibid.)
       About a month after our Cummings decision, the high court ruled that a
judge misstating the standard of proof for finding a crime can never be harmless
either, because this error ―vitiates all the jury‘s findings.‖ (Sullivan v. Louisiana
(1993) 508 U.S. 275, 281 (Sullivan).) Today‘s majority draws more on the later
Neder v. United States (1999) 527 U.S. 1 (Neder) decision than on Sullivan. The
Neder jury was given a definition of the crime (intentionally filing a false tax
return) but with one missing element (the materiality of the falsehood). The high
court explained that this failure to complete the definition of a crime could



                                           3
sometimes be harmless, since the missing piece ―did not ‗vitiat[e] all the jury‘s
findings.‘ ‖ (Id. at p. 11.)
       Our court later extended Neder to hold that failure to charge not one but
two elements of the offense could be harmless as well. (See People v. Mil (2012)
53 Cal.4th 400, 417.) Contrary to the majority‘s suggestion, Mil never questioned
Cummings. Instead, we repeatedly quoted the ―substantially all of the elements‖
rule from Cummings and applied that rule to the case. (Id. at pp. 413, 415.) Our
opinion also hinted that ―an instruction that omitted . . . all . . . of the elements of
an offense‖ (rather than one missing element as in Neder or two as at Mil‘s trial)
would ― ‗necessarily vitiate all the jury‘s finding‘ ‖ as to the crime‘s definition.
(Id. at p. 411.) This of course is the issue that the majority decides in the opposite
way today. Mil even reasoned that ―the most persuasive response to defendant‘s
contention that the harmless-error inquiry must be limited to the omission of a
single element is the utter artificiality of the line he purports to draw.‖ (Id. at p.
412.) We then explained that the Cummings rule ―derive[s] not from an arbitrary
counting game, but from the effect of the omission on the function and importance
of the jury trial guarantee.‖ (Id. at p. 413.) In cases like Merritt‘s where jurors are
given no definition whatsoever of the crime, there is no ―arbitrary counting game,‖
since there is not even a single element to count. In cases like this, ―the most
persuasive‖ rationale for Mil‘s holding is absent. (Id. at p. 412.)
       The majority‘s contention is that ―[w]hat Neder said about the omission of
a single element, and Mil about the omission of two elements, applies equally to
the omission of more than two elements.‖ (Maj. opn., ante, at p. 11.) This
formulation understates the error in this case, which was a failure to give not just a
few but all the elements. Failure to give two elements is not meaningfully distinct
from failure to give one. But failure to give any definition of a crime is a different
matter altogether. In cases where a court gives a partial definition, the jury‘s

                                            4
deliberation is still structured by what the law requires for a conviction. In those
cases, courts can ask whether the partial definition provided enough guidance that
the jury‘s verdict can be salvaged. But the error in Merritt‘s case — total failure
to tell the jury any of how the Penal Code defines the crime they must find —
―vitiates all the jury‘s findings.‖ (Sullivan, supra, 508 U.S. at p. 281.) In a case
like this, we should give no weight to the jury‘s finding that the defendant
committed the crime, since this finding had no basis in any instruction provided by
the court explaining the crime‘s definition in the Penal Code.
       In ruling on such deprivations of constitutional rights courts routinely
distinguish between partial deprivations, which are sometimes treated as harmless,
and total deprivations of the same right, which are treated as never harmless. For
example, the complete deprivation of the Sixth Amendment right to counsel is
never harmless, but the absence of a lawyer for part of trial can be harmless. (See
People v. Lightsey (2012) 54 Cal.4th 668, 699-702.) Along the same lines, even if
the ―complete denial of summation amounts to structural error,‖ this does not
mean ―the restriction of summation also amounts to structural error.‖ (Glebe v.
Frost (2014) 574 U.S. __, __ [135 S.Ct. 429, 431].) Likewise, we recently held
that while ―partial denial of the right to a previous trial transcript is subject to
harmless error review, . . . the total denial of the same right would be structural
error.‖ (People v. Reese (March 9, 2017, S230259) ___ Cal.5th. ___ [p. 12].) As
Reese explained, this is because ―errors can shift between being structural or
subject to harmless error review depending on the extent of the violation.‖ (Id. at
p. 10.) At Merritt‘s trial, the violation was as total as possible: the jury was given
no definition whatsoever of the charged crime. While Neder‘s harmless error
analysis can be extended to other cases with a partial definition (one or two
missing elements), extending it to total deprivations strays into a whole different



                                            5
category. In cases with no definition, the jury made no findings that can be
leveraged into a lawful verdict.
       We are not the first court to consider whether Neder makes failure to define
a crime harmless. Every state high court to consider this question has rejected the
view the majority announces today. The Michigan Supreme Court ruled after
Neder that a ―trial court‘s failure to instruct regarding any of the elements‖ of a
crime sends ―the jury to its deliberative duties deprived of its essential tool‖ and
leaves ―the jury to guess what the prosecuting attorney might be required to
prove.‖ (People v. Duncan (Mich. 2000) 610 N.W.2d 551, 554.) The majority
suggests that trial counsel‘s arguments might explain the Duncan holding. Yet no
opinion in Duncan mentioned counsel‘s arguments –– perhaps because no judge
considered those arguments relevant to the question at issue. What the Michigan
Supreme Court actually said in its holding is contrary to the rule the majority
announces today. (See Duncan, 610 N.W.2d at p. 552 [―We issue this opinion to
reiterate a bright line rule: It is structural error requiring automatic reversal to
allow a jury to deliberate a criminal charge where there is a complete failure to
instruct the jury regarding any of the elements necessary to determine if the
prosecution has proven the charge beyond a reasonable doubt.‖]; id. at p. 556 [―a
jury‘s conviction must be set aside where the court omitted instructions on all the
elements of an offense‖].) And though two justices dissented in that case, they
went out of their way to agree with the majority on the question we decide today.
(See id. at p. 561, fn. 5 (dis. opn. of Corrigan, J.).) The Mississippi Supreme
Court has also held on state law grounds that failure to give any definition of a
crime is never harmless. (See Harrell v. State (Miss. 2014) 134 So.3d 266, 273.)
And though the North Carolina Supreme Court has held that failure to give two
elements of an offense may be harmless (just as we did in Mil), that court has not
ruled that the same is true for failure to give any definition whatsoever. (See State

                                            6
v. Bunch (N.C. 2010) 689 S.E.2d 866.) In the 18 years since Neder, we are the
first state high court to hold that a trial judge‘s total failure to define a crime can
be harmless. No federal court of appeals has so held either.
       The majority points to another aspect of the record that it says confirms
Merritt‘s guilt, aside from the video footage and other evidence: defense
counsel‘s references to the elements of robbery, followed by his argument that
―these people were robbed, okay.‖ (Maj. opn., ante, at p. 4, 13.) There are at least
three problems with using a lawyer‘s arguments to find guilt in this way. First,
―the arguments of counsel are no substitute for instructions from the court.‖
(People v. Harris (2008) 43 Cal.4th 1269, 1320.) We have so held for a reason —
only a judge can tell jurors an authoritative account of the law, and the integrity of
the process is at risk if core obligations of a neutral adjudicator are turned over to
advocates bound to the interests of their client. Second, counsel‘s arguments here
were not a ―concession.‖ (Maj. opn., ante, at pp. 2, 14.) Though the plurality in
Connecticut v. Johnson (1983) 460 U.S. 73 (Johnson) stated that an instructional
error ―may be harmless if the defendant conceded‖ the element, the two cases that
the opinion cited for this point involved pleas of insanity or self-defense. (Id. at p.
87.) When defendants plead either of those defenses, they are confessing illegal
acts, based on their own knowledge of their own acts. The only way to accept an
insanity or self-defense plea is to accept that the defendant committed the charged
acts. Merritt did not admit to any acts. Rather, his lawyer simply shared his
secondhand assessment of the evidence. And all the lawyer said was that this
evidence seemed to show someone else committing a robbery.
       The majority quotes People v. Flood (1998) 18 Cal.4th 470 (Flood), which
also stated that ―removing an element of the crime from the jury‘s consideration‖
can be harmless ―where the defendant concedes or admits the element.‖ (Id. at p.
504.) A close reading of Flood undermines the majority‘s view. For one, the

                                            7
opinion warned that ―failing to submit the entire case to the jury‖ is ―an error that
clearly would be a ‗structural‘ rather than a ‗trial‘ error.‖ (Id. at p. 503.) The
majority seems to hold the opposite. Moreover, the defense lawyer in the Flood
case asked the judge to direct a finding on the element at issue. (Id. at p. 492.)
The defendant then claimed on appeal that this directed finding violated his right
to jury trial. Asking the judge to direct a finding on an element is no doubt a
concession of that element. In a case like that, we can safely say that the
―defendant himself has taken the issue . . . away from the jury.‖ (Johnson, supra,
460 U.S. at p. 87.) But Merritt did not ask for any directed finding. Nor did he
confess to the charged acts, as with a self-defense or insanity defense.
       The third problem with putting so much stock in defense counsel‘s so-
called ―concession‖ is even more fundamental. Merritt, the majority observes,
―knew what the elements of robbery were, and he had an opportunity to present
any evidence he wished on the subject.‖ (Maj. opn., ante, at p. 14.) But the
burden of proof in a criminal trial lies solely with the People. (See Sullivan,
supra, 508 U.S. at p. 277; Flood, supra, 18 Cal.4th at p. 481.) Merritt elected to
join the small fraction of criminal defendants who invoke their right to a jury trial,
rather than waiving that right for a plea deal. Defendants who invoke their right to
a jury trial can be acquitted (including by a directed verdict) even if they present
no evidence whatsoever. (See Johnson, supra, 460 U.S. at p. 87, fn.16 [―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‖].) When
Merritt chose to go to trial, what he invoked was his right to a jury finding every
element of the charged crime, not just the elements his lawyer chose to contest.
(See Estelle v. McGuire (1991) 502 U.S. 62, 69 [―the prosecution‘s burden to
prove every element of the crime is not relieved by a defendant‘s tactical decision
not to contest an essential element of the offense‖].) Defense counsel‘s argument

                                           8
that someone committed a robbery was not a ―concession‖ about the definition of
robbery.
       The majority writes that ―[t]he error here vitiated some of the jury‘s
findings, but not all of them,‖ since jurors concluded that Merritt (rather than
someone else) was a perpetrator of some act or another. (Maj. opn., ante, at p.
12.) But the question remains: a perpetrator of what, precisely? In every single
trial that results in a guilty verdict, the jury will have found that the defendant
committed some act or another. (See People v. Hogue (1991) 228 Cal.App.3d
1500, 1505.) What the majority calls a ―crucial[]‖ distinction — that the jury
determined ―defendant‘s identity as the perpetrator‖ (maj. opn., ante, at p. 12) —
will be true for every single case in which this issue will need to be analyzed. But
what the Sixth Amendment requires jurors to decide beyond a reasonable doubt is
whether the accused committed the charged crime, not whether he or she
happened to commit some act. The majority suggests that a finding that the
defendant committed an undefined act — a finding that every single jury will
make if they convict — is enough to open the door to judges analyzing the
evidence in order to decide whether the defendant committed a crime. As a result,
no matter how badly the jury was misled, an appellate court will now be able to
use the majority‘s justification for reweighing the evidence. Even if the beginning
and end of the judge‘s instruction to the jury is ―decide beyond a reasonable doubt
if the defendant is guilty of something, anything,‖ our ruling today requires judges
to uphold the conviction if they agree that a video conclusively established guilt.
       It is true enough that reversing a conviction can be costly. But the
Constitution makes jury trials a fundamental requirement precisely so that the
government may not administer trials based on intuition about ―whether or to what
degree trial by jury impairs the efficiency or fairness of criminal justice.‖ (Blakely
v. Washington (2004) 542 U.S. 296, 313, 124.) We should be wary of

                                           9
undermining a fundamental right based on discomfort with the cost of the remedy.
There is a more balanced way to account for this discomfort: harmless error
analysis that is proportionate to the error. Our court has in the past limited
harmless error analysis to whether a jury‘s actual findings ―necessarily established
the factual predicate‖ for the uncharged findings. (People v. Marshall (1996) 13
Cal.4th 799, 852.) Justice Stevens‘s Neder concurrence applied this narrow
version of harmless error analysis. (See Neder, supra, 527 U.S. at p. 27 (conc.
opn. of Stevens, J.).) So did Justice Scalia‘s dissent, which two other justices
joined. (See id. at pp. 35–36 (dis. opn of Scalia, J.).) So it is hardly surprising that
justices of this court have also recognized this same ―narrow basis for finding [an]
error harmless.‖ (Flood, supra, 18 Cal.4th at p. 521 (conc. opn. of Chin, J.); see
ibid. [―This jury could not possibly find what it actually did find without also
finding the unchallenged missing element.‖].)
       Along those lines, harmless error analysis in cases like this could be limited
to an examination of the jury findings that were not tainted by the error. The
question would be whether the jury‘s findings logically establish the missing
elements, not whether videos and live testimony allow an appellate court to guess
that the jury could have found those elements. This limited and proportional form
of harmless error analysis would ensure that truly harmless errors do not require
retrial, while maintaining respect for a fundamental right. If whether or not an
error is structural pivots on the fact that the jury made certain valid findings (and
this is how the majority treats the jury‘s findings on identity and intent), it seems
disproportionate for this very narrow fact to trigger a roving journey through the
prosecution‘s evidence that ends in judges watching video footage and voting to
decide guilt. If this narrow fact is the reason to analyze whether the error was
harmless, the remedial analysis should be limited to that one fact alone.



                                          10
       Nothing in the majority opinion limits the nature of the harmless error
analysis in light of the severity or character of the error. To the contrary, the
majority rules that judges can weigh the evidence on their own even where jurors
convict the defendant of a completely undefined crime. The majority takes care to
―express no opinion on what other circumstances in other cases might or might not
permit a finding of harmless error‖ as well as to ―stress that this kind of error
should never occur.‖ (Maj. opn., ante, at p. 15.) While I expect those warnings
will serve to chasten both trial and appellate judges applying today‘s opinion, the
majority opens a dangerous door by holding — in defiance of both our precedent
and the precedent of any other state high court or federal appeals court — that
errors of this kind are negligible once enough appellate judges are convinced that
the evidence shows a crime.
       The expansive scope of the majority‘s harmless error inquiry may make the
result in today‘s case easier to accept, but the takeaway for future cases is
troubling. Going forward, so long as a jury finds beyond a reasonable doubt that
the defendant did something (even if that something is not a crime), appellate
judges can take it from there and decide guilt on their own, no matter what
delusions about the law served as the foundation for the jury‘s verdict. This
prospect is especially troubling for cases like this one featuring video evidence,
which can have the effect of making a defendant‘s guilt seem especially open and
shut. After today‘s ruling, so long as video from an officer‘s body camera or an
interrogation looks clear enough, it will not matter if a judge directed the jury to
find guilt beyond a reasonable doubt. Even in such extreme cases, today‘s opinion
requires appellate judges to step into the jury‘s shoes and vote on whether the
video proved a crime.
       No matter how fair California‘s judges are, we remain ―officers of the
Government.‖ (Neder, supra, 527 U.S. at p. 32 (dis. opn. of Scalia, J.).) Which

                                          11
means we are ―proper objects of that healthy suspicion of the power of
government which possessed the Framers and is embodied in the Constitution.‖
(Ibid.) When we let judges examine evidence in order to answer questions that no
juror was asked, we are ―operating upon the spinal column of American
democracy.‖ (Id. at p. 30.) At least Neder‘s surgery was restricted to
circumstances where a jury was told a definition of the crime. In those cases, the
trial‘s democratic backbone remains intact, since jurors still heard part of the
legislature‘s definition, and ―the error affected only a tiny part of the verdict.‖
(Flood, supra, 18 Cal.4th at p. 521 (conc. opn. of Chin, J.).) This democratic
backbone is what makes those verdicts salvageable, despite the small
imperfection. But the majority holds that the very principles that purport to assure
accountability in any criminal proceeding — the clear recitation of a crime‘s
statutory definition and the requirement that this definition be proved to a
factfinder beyond a reasonable doubt — can be cast aside like a ballpoint pen
bereft of ink.
       No judge ever told the jurors in this case the definition of the charged crime
— a definition specified by their democratic representatives. The majority‘s
holding goes well beyond what Neder requires, and it overrules Cummings’s
crucial safeguards protecting the integrity of a process that decides whether
someone is innocent or a criminal. I respectfully dissent.
                                                   CUÉLLAR, J.




                                          12
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Merritt
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 11/20/15, 4th Dist., Div. 2
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S231644
Date Filed: March 20, 2017
__________________________________________________________________________________

Court: Superior
County: San Bernardino
Judge: Debra Harris

__________________________________________________________________________________

Counsel:

John L. Dodd, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Steven
T. Oetting, Meredith White and Christen Somerville, Deputy Attorneys General, for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

John L. Dodd
John L. Dodd & Associates
17621 Irvine Boulevard, Suite 200
Tustin, CA 92780
(714) 731-5572

Christen Somerville
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9063
