# People v. Flood

> California Supreme Court · July 2, 1998 · 76 Cal. Rptr. 2d 180

URL: https://www.frixlaw.com/law-library/cases/9849211

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. HAL LEE FLOOD, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** July 2, 1998
- **Citations:** 76 Cal. Rptr. 2d 180; 18 Cal. 4th 470; 98 Daily Journal DAR 7349; 957 P.2d 869; 98 Cal. Daily Op. Serv. 5266; 1998 Cal. LEXIS 4033
- **Precedential status:** Published
- **Opinion:** Concurrence by Werdegar
- **Judges:** George, Werdegar, Chin, Mosk, Kennard
- **Cited by:** 478 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Criticized on other grounds by a later decision.
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9849211

## How later opinions describe it (automated extraction)

- explaining the standard of care “concern[s] the scope of an established 19 duty”

## Opinion text

WERDEGAR, J.
I concur in the judgment of the majority affirming the decision of the Court of Appeal. The trial court clearly erred by instructing defendant’s jury to find Officers Bridgeman and Gurney were peace officers within the meaning of Vehicle Code section 2800.3.1 agree the error in this case was not “structural,” as that term is used in Sullivan v. Louisiana (1993) 508 U.S. 275 [ 113 S.Ct. 2078 , 124 L.Ed.2d 182 ] (Sullivan), and Arizona v. Fulminante (1991) 499 U.S. 279 [ 111 S.Ct. 1246 , 113 L.Ed.2d 302 ] (Fulminante), and thus is not automatically reversible for that reason under the *508 federal Constitution. (Maj. opn., ante, at p. 503.) I further agree with the majority that the error was harmless under the federal Constitution to the extent the majority arrives at this conclusion by applying the Cantrell-Thornton 1 exception to the rule of automatic reversal this court recognized in People v. Garcia (1984) 36 Cal.3d 539 [ 205 Cal.Rptr. 265 , 684 P.2d 826 ] (Garcia). (Maj. opn., ante, at pp. 505-506.)
I respectfully disagree, however, with the holding or suggestion, contained in the majority opinion, 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. As I explain, neither of these theories is legally supportable.
I.
The due process clauses of the Fifth and Fourteenth Amendments to the federal Constitution require the prosecution in a criminal case to prove “all elements of the offense charged [citations], and [to] persuade the factfinder ‘beyond a reasonable doubt’ of the facts necessary to establish each of those elements [citations].” ( Sullivan, supra, 508 U.S. at pp. 277-278 [ 113 S.Ct. at p. 2080 ]; Estelle v. McGuire (1991) 502 U.S. 62, 69 [ 112 S.Ct. 475, 480-481 , 116 L.Ed.2d 385 ]; In re Winship (1970) 397 U.S. 358, 364 [ 90 S.Ct. 1068, 1072 , 25 L.Ed.2d 368 ].) “[Although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he may not direct a verdict for the State, no matter how overwhelming the evidence. [Citations.]” (Sullivan, supra, at p. 277 [ 113 S.Ct. at p. 2080 ].)
Defendant Hal Lee Flood was charged with violating Vehicle Code 2 section 2800.3. That section incorporates section 2800.1, which defines the misdemeanor of willful flight or attempt to elude a pursuing peace officer while operating a motor vehicle. Section 2800.3 elevates the crime to a potential felony if the offender’s actions proximately cause death or serious bodily injury. A statutory requirement for establishing a violation of section 2800.1, and hence section 2800.3, is that “[t]he peace officer’s motor vehicle is operated by a peace officer, as defined in Chapter 4.5 .. . of Title 3 of Part 2 of the Penal Code . . . .” (§ 2800.1, former subd. (d); now see § 2800.1, subd. (a)(4).)
As the majority notes, the trial court instructed the jury that “Officer Bridgeman and Officer Gumey are peace officers.” Although there was *509 evidence to this effect, and defendant did not present evidence or argument to contradict it, the instruction was erroneous because defendant was entitled to a jury determination of the existence of this element of the charged offense. Accordingly, the trial court’s instruction violated defendant’s due process rights under the federal Constitution. On this point, the court is unanimous.
Does the error require we reverse defendant’s conviction? In Fulminante, supra, 499 U.S. 279 , Chief Justice Rehnquist for the first time explained that certain serious trial errors require automatic reversal because such errors constitute a “structural defect” in the trial itself. 3 (See 499 U.S. at pp. 309-310 [111 S.Ct. at pp. 1264-1265] (opn. by Rehnquist, C. J.); see also id. at pp. 294-295 [111 S.Ct. at pp. 1256-1257] (dis. opn. of White, J.), quoting Vasquez v. Hillery (1986) 474 U.S. 254, 263 [ 106 S.Ct. 617, 623 , 88 L.Ed.2d 598 ] [such errors undermine the “ ‘structural integrity’ ” of the trial].) Such errors are not amenable to a harmless error determination. (See Yates v. Evatt (1991) 500 U.S. 391, 402-403, fn. 8 [ 111 S.Ct. 1884, 1892 , 114 L.Ed.2d 432 ] {Yates), overruled on another point by Estelle v. McGuire, supra, 502 U.S. at p. 72, fn. 4 [ 112 S.Ct. at p. 482 ] [Yates holding to the extent Rose v. Clark (1986) 478 U.S. 570 [ 106 S.Ct. 3101 , 92 L.Ed.2d 460 ] suggested an improper rebuttable presumption could be cured by evidence in the record establishing guilt beyond a reasonable doubt, it “would not be correct”].) Errors reversible irrespective of the strength of the evidence of guilt include trial with a biased judge, complete denial of counsel, denial of Faretta 4 rights,' denial of a public trial, and indictment by a grand jury from which the defendant’s race was excluded. { Fulminante, supra, 499 U.S. at pp. 309-310 [111 S.Ct. at pp. 1264-1265].) Instructing the jury with an instruction that inadequately defines the concept of reasonable doubt is also a structural error requiring reversal irrespective of the strength of the evidence. { Sullivan, supra, 508 U.S. 275 .)
Although I agree with the majority the error in this case was not structural, I do not join the entirety of the majority’s reasoning. Specifically, I disagree with the majority that we may draw as much as the majority indicates from *510 California v. Roy (1996) 519 U.S. 2 [ 117 S.Ct. 337 , 136 L.Ed.2d 266 ] (per curiam), and Johnson v. United States (1997) 520 U.S. 461 [ 117 S.Ct. 1544 , 137 L.Ed.2d 718 ], As Justice Mosk explains in his dissenting opinion, post, at pages 536-537, neither case squarely poses the situation here, both are patently distinguishable, and, accordingly, neither case establishes a holding we are bound to follow. Although the majority concludes these cases “strongly indicate” (maj. opn., ante, at p. 497) or “suggest[]” (id. at p. 501) how the high court would hold if it were required to do so, that court has never so held. We are not bound by such “suggestion's” in United States Supreme Court opinions, for in the absence of precedent, we have “an independent constitutional obligation to adjudicate the constitutional rights of litigants before [us].” (People v. Monge (1997) 16 Cal.4th 826, 856 [ 66 Cal.Rptr.2d 853 , 941 P.2d 1121 ] (dis. opn. of Werdegar, J.).) “We must decide the case before us based on constitutional principles, not predictions of what another court—even a higher court—may do if faced with a justiciable controversy.” (Id. at p. 858.)
Although I thus disagree that an examination of California v. Roy, supra, 519 U.S. 2 , and Johnson v. United States, supra, 520 U.S. 461 , advances the analysis, I nevertheless agree the error here is not the type of structural error described by the high court in Sullivan, supra, 508 U.S. 275 , and Fulminante, supra, 499 U.S. 279 . Fulminante explains that certain trial errors require reversal without inquiry into the effect they have on a trial, because such errors constitute a “structural defect affecting the framework within .which the trial proceeds, rather than simply an error in the trial process itself. ‘Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.’ ” (Fulminante, supra, at p. 310 [111 S.Ct. at p. 1265], quoting Rose v. Clark, supra, 478 U.S. at pp. 577-578 [106 S.Ct. at pp. 3105-3106].) In other words, structural errors require reversal because their effect may not be “quantitatively assessed” (Fulminante, supra, at pp. 307-308 .[111 S.Ct. at pp. 1263-1264]) by a comparison to other evidence admitted at trial. (See generally, Sullivan, supra, at pp. 281-282 [ 113 S.Ct. 2082 -2083]; People v. Harris (1994) 9 Cal.4th 407, 429 [ 37 Cal.Rptr.2d 200 , 886 P.2d 1193 ] [Misinstruction “on one of two possible factual theories by which [the immediate presence] element [of robbery] could be satisfied” does not constitute structural error. (Italics omitted.)].)
The instructional error here seems different in kind and degree from the types of errors the high court has found require automatic reversal, for instructing the jury that Officers Bridgeman and Gurney were peace officers within the meaning of the statute was done by an impartial judge; defendant *511 was represented by competent counsel; defendant was afforded an impartial jury; and the impact of the error on the jury’s decisionmaking may be assessed. In other words, directing a verdict on one element of several required to establish a criminal offense “neither wholly withdrew from jury consideration substantially all of the elements of a charged substantive offense [citations], nor so vitiated all of the jury’s findings as to effectively deny defendant[] a jury trial altogether.” (Peoples. Wims (1995) 10 Cal.4th 293, 312 [ 41 Cal.Rptr.2d 241 , 895 P.2d 77 ], fn. omitted; but see People v. Cummings (1993) 4 Cal.4th 1233 , 1311 et seq. [ 18 Cal.Rptr.2d 796 , 850 P.2d 1 ] [failing to instruct on four of five elements of robbery reversible per se].) In short, the error in this case did not undermine the basic integrity of the structure of the trial process.
The only argument in defendant’s favor is that he was entitled to a jury decision on whether every element of a charged crime is true. Such an argument, though perhaps attractive in the abstract, is, however, at odds with the numerous cases in which the high court has found various trial errors subject to a harmless error test. (See collected cases in Chief Justice Rehnquist’s separate opinion in Fulminante, supra, 499 U.S. at pp. 306-307 [111 S.Ct. at pp. 1262-1263].) In particular, the error in this case seems no more “structural” than erroneously instructing the jury it may employ an unconstitutional, conclusive presumption to establish an element of an offense, an error that is subject to a harmless error test. (See Carella v. California (1989) 491 U.S. 263 [ 109 S.Ct. 2419 , 105 L.Ed.2d 218 ].) Accordingly, I conclude the error in this case was not a structural error requiring reversal. 5
Although the error here was not structural, the trial court nevertheless violated defendant’s rights under the federal due process clauses by failing to instruct the jury on all elements of the charged offense. The applicable test for prejudice for nonstructural federal constitutional error is set forth in Chapman, supra, 386 U.S. 18 . That case provides that federal constitutional error requires reversal unless the People can prove the error was harmless beyond a reasonable doubt. (Id. at p. 24 [ 87 S.Ct. at p. 828 ].)
Recent opinions of the high court have discussed the meaning of the Chapman test, refining the terms of its application. Thus, in Yates, supra, 500 U.S. 391 , the defendant’s jury was instructed it could presume the *512 existence of malice if the defendant either willfully and intentionally engaged in an unlawful act without just cause or excuse, or if the defendant used a deadly weapon. Both presumptions were rebuttable under state law. (Id. at p. 397 [111 S.Ct. at pp. 1889-1890].) The South Carolina Supreme Court found the use of the rebuttable presumptions violated the defendant’s federal constitutional rights, but concluded the error was harmless. The state court reached this conclusion by reweighing the evidence and finding the brutal nature of the slaying would have made it unnecessary for the jury to rely on the presumptions to find malice. (Id. at pp. 399-400 [111 S.Ct. at pp. 1890-1891].)
The United States Supreme Court reversed. The high court explained that, although the state supreme court was correct in concluding this type of error was subject to a harmless error test, it nevertheless applied the wrong standard of review. “To say that an error did not contribute to the verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” (Yates, supra, 500 U.S. at p. 403 [ 111 S.Ct. at p. 1893 ].) To make that determination, the court stated a reviewing court “must take two quite distinct steps. First, it must ask what evidence the jury actually considered in reaching its verdict.” (Id. at p. 404 [111 S.Ct. at p. 1893].) Second, the court “must then weigh the probative force of that evidence as against the probative force of the presumption standing alone. To satisfy Chapman’s reasonable-doubt standard, it will not be enough that the jury considered evidence from which it could have come to the verdict without reliance on the presumption. Rather, the issue under Chapman is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption. Since that enquiry cannot be a subjective one into the jurors’ minds, a court must approach it by asking whether the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption. It is only when the effect of the presumption is comparatively minimal to this degree that it can be said, in Chapman’s words, that the presumption did not contribute to the verdict rendered.” (Id. at. pp. 404-405 [111 S.Ct. at pp. 1893-1894], italics added.)
The South Carolina Supreme Court had concluded the error was harmless because the evidence of malice was so strong the jury would have found it unnecessary to rely on the improper presumption. (Yates, supra, 500 U.S. at p. 407 [ 111 S.Ct. at p. 1895 ].) This was erroneous, explained the high court, because “[e]nquiry about the necessity for reliance . . . does not satisfy all of Chapman’s concerns. It can tell us that the verdict could have been the *513 same without the presumptions, where there was evidence sufficient to support the verdict independently of the presumptions’ effect. But the enquiry will not tell us whether the jury’s verdict did rest on that evidence as well as on the presumptions, or whether that evidence was of such compelling force as to show beyond a reasonable doubt that the presumptions must have made no difference in reaching the verdict obtained.” (Ibid., italics added.)
In short, in applying the Chapman test to determine whether a nonstructural federal constitutional error is harmless, an appellate court cannot simply reweigh the evidence to conclude a hypothetical reasonable jury would have found the existence of the missing element. Instead, the pertinent question is whether an examination of the record in this case indicates this jury would have found the missing element.
That this is the proper approach to Chapman review was underscored by the high court’s opinion in Sullivan, supra, 508 U.S. 275 . In that case, the trial court failed adequately to define for the jury the meaning of the phrase “reasonable doubt.” (Id. at p. 277 [ 113 S.Ct. at p. 2080 ].) The Supreme Court of Louisiana found the error harmless beyond a reasonable doubt. The high court reversed, explaining that the proper “inquiry ... is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered—no matter how inescapable the findings to support that verdict might be—would violate the jury-trial guarantee.” (Id. at p. 279 [113 S.Ct. at pp. 2801-2802], italics added, original italics omitted.)
The court continued: “Once the proper role of an appellate court engaged in the Chapman inquiry is understood, the illogic of harmless-error review in the present case becomes evident. Since . . . there has been no jury verdict within the meaning of the Sixth Amendment, the entire premise of Chapman review is simply absent. There being no jury verdict of guilty-beyond-a reasonable-doubt, the question whether the same verdict of guilty-beyond-a reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which harmless-error scrutiny can operate. The most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt— not that the jury’s actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough.” (Sullivan, supra, 508 U.S. at p. 280 [ 113 S.Ct. at p. 2082 ], italics in original.)
*514 Applying Yates and Sullivan to the present case is problematic. Yates involved an unconstitutional evidentiary presumption and Sullivan involved a faulty reasonable doubt instruction. Accordingly, neither authoritatively explains how we should apply the Chapman test to a case, as here, where the trial court delivered what in essence was a directed verdict on one element of a criminal offense. What is clear from Yates and Sullivan is that for' an appellate court simply to reweigh the evidence presented at trial and determine whether a hypothetical reasonable jury would have found the existence of the missing element is impermissible. Beyond that, the effect of Yates and Sullivan on this case is unclear. It is true there was evidence Officers Bridgeman and Gurney were peace officers within the meaning of section 2800.1, and defendant did not present any contrary evidence or argument. But because the jury was not asked to determine whether the peace officer requirement was satisfied, rigidly applying the Yates/Sullivan interpretation of Chapman would, as Justice Mosk argues in dissent, require we reverse defendant’s conviction.
We have never, however, applied the federal harmless error test'in such a rigid fashion. Thirteen years ago, we addressed the precise question posed here: How should an appellate court evaluate the prejudice flowing from a trial court’s failure to instruct the jury on all elements of an offense? In Garcia, supra, 36 Cal.3d 539 , we confronted a case in which the jury instructions did not require a finding of intent to kill to sustain a felony-murder special circumstance. 6 (Intent to kill was then a requirement for a felony-murder special circumstance; the requirement has since been removed. See People v. Anderson (1987) 43 Cal.3d 1104, 1147 [ 240 Cal.Rptr. 585 , 742 P.2d 1306 ].) After examining several high court opinions, we concluded the general rule required reversal, explaining that “[t]he United States Supreme Court decisions make it clear that when intent is an element of a crime, an instruction directing the jury to find or conclusively presume intent denies due process, regardless of the weight of the evidence.” (Garcia, supra, at p. 551 .)
Reading the plurality opinion in Connecticut v. Johnson (1983) 460 U.S. 73 [ 103 S.Ct. 969 , 74 L.Ed.2d 823 ], we found the high court would recognize two exceptions to the general rule of reversal per se. First, a jury instruction removing from the jury’s consideration an element of the offense could be deemed harmless “ ‘if the erroneous instruction was given in connection with an offense for which the defendant was acquitted and if the *515 instruction had no bearing on the offense for which he was convicted,’ and [second,] ‘if the defendant conceded the issue of intent.’ ” ( Garcia, supra, 36 Cal.3d at pp. 554-555, quoting Connecticut v. Johnson, supra, at p. 87 [105 S.Ct. at pp. 977-978].)
Nothing in the post-Garcia decisions of the United States Supreme Court suggests that court would now decline to recognize these two exceptions. Indeed, both are consistent with the test for harmless error as explained in Yates, supra, 500 U.S: 391, and Sullivan, supra, 508 U.S. 275 , i.e., both exceptions address “whether the guilty verdict actually rendered in this trial was surely unattributable to the [instructional] error.” {Sullivan, supra, 508 U.S. at p. 279 [ 113 S.Ct. at p. 2081 ], italics omitted.) Where a defendant is acquitted of the crime, or concedes at trial the existence of the missing element, we can be sure the guilty verdict actually rendered was unaffected by the instructional error. In other words, in such a situation, an appellate court can conclude not only that a reasonable jury would surely have convicted, but that this jury would have done so.
The first Garcia exception is inapplicable here, for defendant was convicted, not acquitted, of violating section 2800.3. So too, in my view, is the second exception inapplicable. Contrary to the majority opinion, I disagree defendant conceded Bridgeman and Gurney were peace officers within the meaning of section 2800.1. (See maj. opn., ante, at pp. 504 [“defendant effectively conceded this issue” (italics added)], 505 [“defendant’s actions ... are tantamount to a concession that Bridgeman and Gurney were peace officers” (italics added)], 507 [issue “effectively was conceded by defendant”].) Neither defendant nor his attorney ever stated they were admitting or conceding the issue. More importantly, defendant pleaded not guilty, thereby placing in dispute every issue necessary to obtain a criminal conviction. {People v. Rowland (1992) 4 Cal.4th 238, 260 [ 14 Cal.Rptr.2d 377 , 841 P.2d 897 ]; Pen. Code, § 1019 [“The plea of not guilty puts in issue every material allegation of the accusatory pleading . . . .”].) A defendant is entitled to sit back and force the People to prove beyond a reasonable doubt every element of a charged crime, and the People’s burden is not diminished should a defendant decline to mount a vigorous defense. 7
Although defendant was neither acquitted of nor conceded the issue, Garcia, supra, 36 Cal.3d 539 , noted two additional exceptions to the rule of *516 automatic reversal. Relying on People v. Sedeno (1974) 10 Cal.3d 703, 721 [ 112 Cal.Rptr. 1 , 518 P.2d 913 ], overruled on other grounds in People v. Flannel, supra, 25 Cal.3d at page 684, footnote 12, “we explained that ‘in some circumstances it is possible to determine that although an instruction . . . was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury’s consideration since it has been resolved in another context, and there can be no prejudice to the defendant . . . (Garcia, supra, at p. 555 , fn. omitted.) 8 Because the jury was instructed that Bridgeman and Gurney were qualifying peace officers, the jury did not determine this fact at all. Accordingly, the Sedeño exception does not apply here.
The fourth Garcia exception drew on our decisions in People v. Cantrell, supra, 8 Cal.3d 672 , and People v. Thornton, supra, 11 Cal.3d 738 . After describing those opinions, we explained in Garcia, supra, 36 Cal.3d at page 556 , that even when the jury instructions omit a required element of a charged crime, “there may ... be cases where the parties recognized 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. In such a case the reasoning of Cantrell and Thornton may avoid a meaningless retrial.” (Fn. omitted.)
Since Garcia , we have recognized the continuing viability of the Cantrell-Thornton exception, even while finding the exception inapplicable on the *517 facts of a particular case. (See, e.g., People v. Hamilton (1985) 41 Cal.3d 408, 432 [ 221 Cal.Rptr. 902 , 710 P.2d 981 ]; People v. Silbertson (1985) 41 Cal.3d 296, 307 [ 221 Cal.Rptr. 152 , 709 P.2d 1321 ].) The lower appellate courts, however, have on several occasions invoked the exception in affirming convictions despite a failure to instruct the jury on an element of an offense. (People v. Richie (1994) 28 Cal.App.4th 1347, 1354-1360 [ 34 Cal.Rptr.2d 200 ]; People v. Riederer (1990) 217 Cal.App.3d 829, 836 [ 266 Cal.Rptr. 355 ]; People v. Joiner (1988) 204 Cal.App.3d 221, 227 [ 251 Cal.Rptr. 63 ]; People v. Jarrell (1987) 196 Cal.App.3d 604, 611 [ 242 Cal.Rptr. 219 ]; see People v. Beltran (1989) 210 Cal.App.3d 1295, 1308 [ 258 Cal.Rptr. 884 ] [failure to instruct on element of enhancement found harmless].)
At the time we decided Garcia , we confessed to uncertainty “whether the United States Supreme Court [would] endorse the Cantrell-Thomton exception to its apparent rule favoring automatic reversal [for failure to instruct on an element of a criminal offense].” (Garcia, supra, 36 Cal.3d at p. 556 .) We noted that certain language in Connecticut v. Johnson, supra, 460 U.S. 73 , “suggests that four justices of the court would be sympathetic to a limited exception that would avoid retrial in some cases in which the evidence unequivocally and conclusively established intent, but leaves it uncertain whether a majority would take that position. Accordingly, pending further guidance from the United States Supreme Court, we will apply the reasoning of Cantrell and Thornton only to those cases clearly falling within the ambit of that reasoning so as not to detract substantially from the per se character of the high court’s rule.” (Garcia, supra, at p. 556 , italics added.)
Of course, since Garcia , the high court has touched on this general subject many times, most notably in Carella v. California, supra, 491 U.S. 263 , Yates, supra, 500 U.S. 391 , and Sullivan, supra, 508 U.S. 275 . These cases make no mention of the Cantrell-Thomton exception, although they proceed from the premise that the omission from the jury instructions of one element of an offense can be harmless on the facts of a particular case. Thus, as previously indicated, the high court has explained the error is harmless when the defendant concedes the issue or is acquitted of the offense for which the omitted fact was relevant, or when an improper evidentiary presumption requires the jury to find predicate facts “ ‘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.’ ” (Sullivan, supra, 508 U.S. at p. 281 [ 113 S.Ct. at p. 2082 ], italics added, quoting Carella v. California, supra, 491 U.S. at p. 271 [109 S.Ct. at pp. 2423-2424] (cone. opn. of Scalia, J.).) In such circumstances, in other words, there is no realistic *518 chance the defendant was actually harmed by the error. As the majority notes (maj. opn., ante, at p. 507), to reverse a judgment under such circumstances “would erode the purpose and rationale of the harmless error doctrine and promote disrespect for the judicial system.”
Where the requirements of the Cantrell-Thomton exception exist, there similarly is no realistic chance the defendant was actually harmed by the error. Where (1) a criminal defendant knows (or should know) proof of a particular fact is important, (2) both parties present all the evidence at their disposal on the subject, and (3) an appellate court can conclude both that the fact is proved as a matter of law and the contrary evidence is unworthy of belief, the Cantrell-Thomton exception permits the conclusion the error was harmless because it had no realistic effect on the verdict. This conclusion is consistent with the other exceptions recognized both by this court and the high court, and nothing in Carella, Yates, or Sullivan is fatally at odds with recognition of this exception. (See also maj. opn., ante, at p. 506 [“the United States Supreme Court never has overturned a decision affirming a judgment on the basis of the Cantrell-Thomton exception”].) We opined in Garcia, supra, 36 Cal.3d at page 557 , that we would apply the CantrellThomton exception “pending further guidance from the United States Supreme Court,” and we are still awaiting such guidance.
Accordingly, I conclude the Cantrell-Thomton exception is still a viable legal doctrine and thus agree with that part of the majority’s opinion applying the exception in this case.
Section 2800.1 provides an element of the crime is that “[t]he peace officer’s motor vehicle is operated by a peace officer, as defined in Chapter 4.5. . . of Title 3 of Part 2 of the Penal Code . . . .”(§ 2800.1, former subd. (d); now see § 2800.1, subd. (a)(4), italics added.) Defendant was thus on notice that whether Bridgeman and Gurney were peace officers “as defined in Chapter 4.5 .. . of Title 3 of Part 2 of the Penal Code” was a material issue in the case. Because the “peace officer” requirement was a statutory one, neither defendant nor the People can claim they lacked the incentive to place in the record all the evidence they possessed on this issue. As the majority notes (maj. opn., ante, at p. 476), Officers Bridgeman and Gurney both testified they were employed by the Richmond Police Department. 9 Defendant did not cross-examine the witnesses on this point, nor present any other evidence relevant to the status of the officers. Accordingly, I agree with the majority that the record establishes as a matter of law that Bridge-man and Gurney were peace officers as required by section 2800.1, former *519 subdivision (d) (now subdivision (a)(4)), and that not only was the contrary evidence not worthy of belief, there was no contrary evidence at all. Under the Cantrell-Thomton exception, I agree with the majority that the instructional error in this case was harmless.
This conclusion is consistent with People v. Richie, supra, 28 Cal.App.4th 1347 {Richie), a case posing very similar facts. In Richie , the defendant was charged with violating section 2800.2, fleeing or evading a peace officer while driving in a motor vehicle “in a willful or wanton disregard for the safety of persons or property.” Although one statutory requirement for this crime is the peace officer be “wearing a distinctive uniform,” the defendant’s jury was not instructed to find this element of the offense. The Court of Appeal found the instructional error harmless, reasoning: “The facts of the instant case place it squarely within the Cantrell-Thomton exception. Appellant can hardly claim not to have been on notice as to an expressly enumerated element of the offense charged. With respect to the evidence presented, the record is clear and uncontradicted on the question whether Officer Hardy was in uniform. The issue was raised only once: in his testimony on direct examination, Officer Hardy responded affirmatively to the prosecutor’s question whether he was uniformed at the time he pursued appellant. There was no contradicting testimony or dispute by appellant on this element.” {Richie, supra, at pp. 1355-1356 .) “Under these circumstances, and considering that the element of the offense that is at issue was indisputably established by the evidence, reversal of appellant’s conviction is not required by the principle of fundamental fairness.” {Id. at p. 1360.)
Nor is this conclusion inconsistent with People v. Kobrin (1995) 11 Cal.4th 416 [ 45 Cal.Rptr.2d 895 , 903 P.2d 1027 ] {Kobrin). In that case, the question of the materiality of a statement in a perjury prosecution was removed from the jury’s consideration. The Attorney General argued the error was harmless because the jury “ ‘would have considered evidence pertinent to the issue of materiality, if not all the evidence establishing that fact.’ ” {Id. at p. 428.) We disagreed, explaining “the misinstruction here [was not] susceptible to this type of analysis.” {Ibid.) Instead, we found the defendant’s perjury conviction must be reversed after considering two circumstances.
“First, a reviewing court generally only evaluates the strength of the evidence considered by the jury in assessing the prejudicial effect of an impermissible burden-shifting presumption, which may have had a comparatively minimal impact on the verdict. By contrast, in most cases the complete omission of an element inevitably affects the verdict both directly and adversely. [Citing, inter alia, Sullivan, supra, 508 U.S. at p. 280 [124
*520 L.Ed.2d at pp. 189-190], and Yates, supra, 500 U.S. at pp. 403-406 [114 L.Ed.2d at pp. 4448-4450].]” { Kobrin, supra, 11 Cal.4th at pp. 428-429.)
We continued: “Second, even if we could infer with any degree of certainty the jury’s likely ‘findings’ under the instructions given, we have no basis for determining the extent to which they reflect a consideration of whether defendant’s false statements were material since the only reference to the issue specifically removed it from the deliberative process.” {Kobrin, supra, 11 Cal.4th at p. 429 , italics added.) In other words, if an element is completely removed from jury consideration, we cannot infer from the jury’s other findings whether it considered evidence from which it actually did (or clearly would have) made the required finding. In short, any such conclusion would be impermissible factfinding by the appellate court.
Although Kobrin reversed the defendant’s conviction for failure to instruct the jury to determine whether the challenged statements were material, we expressly declined to decide whether, and in what circumstances, “a reviewing court may determine the omission of instruction on an element [of a criminal offense] was harmless beyond a reasonable doubt.” {Kobrin, supra, 11 Cal.4th at p. 428, fn. 8 .) Kobrin thus explicitly reserved the question posed in the instant case. Significantly, Kobrin also explained that any application of a harmless error test when the jury instructions omit an element of the offense assumes the parties placed all relevant evidence at their disposal into the record, a doubtful proposition under the circumstances of that case. { Kobrin, supra, 11 Cal.4th at pp. 429-430 [defendant attempted to present evidence his statements were not material but the trial court ruled the evidence was inadmissible].) Thus, unlike in the instant case, it did not appear in Kobrin that “all possible evidence on the question of [the omitted fact] was actually presented to the trier of fact.” {Id. at p. 429.)
Of course, the Cantrell-Thornton exception addresses this problem, as it requires the parties to have been aware the issue was a disputed one and have placed all their evidence into the record. Because we could not be sure the parties in Kobrin presented all relevant evidence on the issue, we could not rely on the Cantrell-Thornton exception. The same is not true in this case.
II.
In sum, I concur in the majority opinion to the extent it relies on the Cantrell-Thornton exception to find the error in this case was harmless beyond a reasonable doubt.
People v. Cantrell (1973) 8 Cal.3d 672 [ 105 Cal.Rptr. 792 , 504 P.2d 1256 ], overruled on other grounds by People v. Wetmore (1978) 22 Cal.3d 318, 324 , footnote 5 [ 149 Cal.Rptr. 265 , 583 P.2d 1308 ], and People v. Flannel (1979) 25 Cal.3d 668, 684 , footnote 12 [ 160 Cal.Rptr. 84 , 603 P.2d 1 ]; People v. Thornton (1974) 11 Cal.3d 738 [ 114 Cal.Rptr. 467 , 523 P.2d 267 ], overruled on other grounds by People v. Flannel, supra, at page 684, footnote 12.
All code references are to the Vehicle Code unless otherwise stated.
Fulminante was itself a confusing case. Justice White wrote parts I, H, and IV for the court, finding the defendant’s confession was coerced and that its admission could not be found harmless. In part III, White held that such error was automatically reversible. Chief Justice Rehnquist wrote a separate opinion in which a majority of five justices found the admission of a coerced confession was subject to the Chapman harmless error test. (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 ] (Chapman).) Fewer than a majority of justices, however, agreed with Chief Justice Rehnquist that the error was harmless under that test. Thus, a majority found the confession was coerced, that it was error to admit it, that the error was subject to Chapman, and that the error did not pass the Chapman test (i.e., the error was prejudicial).
Faretta v. California (1975) 422 U.S. 806 [ 95 S.Ct. 2525 , 45 L.Ed.2d 562 ],
Curiously, the most recent case to directly address the structural error issue ( Sullivan, supra, 508 U.S. 275 ) seems to relegate the discussion of structural error to an alternative analysis. (Id. at p. 281 [ 113 S.Ct. at p. 2082 ] [Structural error analysis provides “[a]nother mode of analysis lead[ing] to the same conclusion that harmless-error analysis does not apply . . . .” (Italics added.)].) This treatment of the Fulminante “structural error" analysis as a subordinate analysis may signal the high court’s dissatisfaction with the structural error approach.
We rejected the People’s contention that a defendant’s due process right to have his or her jury instructed on the elements of a special circumstance allegation was less important for constitutional purposes than the right to have instructions on elements of a crime. (Garcia, supra, 36 Cal.3d at p. 552 .)
Nor can I join the majority’s alternate rationale that the “peace officer” requirement was merely a “peripheral” element (maj. opn., ante, at pp. 505, 506, 507) that is deserving of somewhat less due process protection under In re Winship, supra, 397 U.S. 358 , and its progeny. The majority not only fails to provide any legal justification for this approach, it fails to explain how courts can determine whether statutory elements of criminal offenses are “peripheral” or “core” requirements. Peripheral or not, had the People failed to present any evidence at all on the “peace officer” element, it would violate defendant’s due process rights under both the federal and state Constitutions for an appellate court to conclude the error was *516 harmless. To the extent the majority holds the importance of the “peace officer” requirement is relevant to the determination of prejudice (see also maj. opn., ante, at pp. 492 [characterizing the “peace officer” requirement as merely a “component” of a statutory element of the offense], 503 [error “affected only one aspect of one of the eight elements of the offense”]), I disagree and do not join that discussion.
We continued in Garcia , stating, “[w]e believe that, in an appropriate case, the United States Supreme Court would accept this exception to the automatic reversal standard.” (Garcia, supra, 36 Cal.3d at p. 555 .) Since Garcia , the high court appears to have recognized a similar, though not identical, exception. Speaking of a situation in which the jury is erroneously instructed that it may apply a conclusive presumption to establish an element of a crime, the court opined that, in that situation, the jury must still determine predicate facts before applying the presumption. “And when [these facts] ‘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.’ [Citations.] A reviewing court may thus be able to conclude that the presumption played no significant role in the finding of guilt beyond a reasonable doubt.” (Sullivan, supra, 508 U.S. at p. 281 [109 S.Ct. at pp. 2423-2424], italics added, quoting Carella v. California, supra, 491 U.S. at p. 271 [ 113 S.Ct. at p. 2082 ] (cone. opn. of Scalia, J.).)
Penal Code section 830.1, subdivision (a), which is located in “Chapter 4.5 .. . of Title 3 of Part 2 of the Penal Code,” provides “Any . . . police officer, employed in that capacity and appointed by the chief of police or the chief executive . . . of a city . . . is a peace officer.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9849211. Public record. Not legal advice.