People v. Flood

MOSK, J. I

IIn the superior court, defendant was charged with crimes including willful flight from a pursuing peace officer, specifically, City of Richmond Police Officers Rudy Bridgeman and Michael Gurney, resulting in death or serious bodily injury, which is a felony defined by Vehicle Code sections 2800.1 and 2800.3. One of the crime’s elements is that the pursuer is, in fact, a peace officer—which means, for present purposes, a “police officer ... of a city” who is both “employed in that capacity” and “appointed by the chief of police or the chief executive of the agency” (Pen. Code, § 830.1, subd. (a)). Defendant pleaded not guilty. Trial was by jury. Evidence was introduced that Bridgeman and Gurney were “employed in [the] capacity” of “police officer[s]” of the City of Richmond. (Ibid.) But none was introduced that they were “appointed by the chief of police or the chief executive of the agency.” (Ibid.) In accordance with a pattern instruction, the superior court instructed the jury on the crime of willful flight from a peace officer. In doing so, however, it omitted the peace officer element. More precisely, it failed to submit the issue whether Bridgeman and Gurney were peace officers. Instead, and apparently sua sponte, it simply directed that “Officer Bridgeman and Officer Gurney are peace officers.” (Italics added.) 1 The jury returned a verdict of guilty. The superior court rendered judgment accordingly. The Court of Appeal affirmed.

*523 Unlike the majority, I would reverse. As I shall explain, by omitting from its instructions the peace officer element of the crime of willful flight from a peace officer, the superior court committed reversible error under the United States Constitution.

I

The first question that we must address is whether the superior court’s instructional omission of the peace officer element of the crime of willful flight from a peace officer is erroneous under the United States Constitution.

The answer that we must give is affirmative. 2

Under decisions of the United States Supreme Court including Sullivan v. Louisiana (1993) 508 U.S. 275 [ 113 S.Ct. 2078 , 124 L.Ed.2d 182 ] (hereafter sometimes Sullivan), the due process clause of the Fourteenth Amendment to the United States Constitution, which incorporates the Fifth and Sixth Amendments thereto, including the Fifth Amendment’s due process clause and the Sixth Amendment’s jury trial clause, requires that, before it may obtain a valid conviction from a jury, a state must prove every element of a crime, and must do so beyond a reasonable doubt. {Sullivan v. Louisiana, supra, 508 U.S. at pp. 277-278 [113 S.Ct. at pp. 2080-2081.)

It follows that instructions to the jury in a state criminal trial that omit the requirement of proof of every element of a crime beyond a reasonable doubt are erroneous under the Fourteenth Amendment’s due process clause incorporating the Fifth and Sixth Amendments. (See Jackson v. Virginia (1979) 443 U.S. 307, 320, fn. 14 [ 99 S.Ct. 2781, 2790 , 61 L.Ed.2d 560 ].)

Furthermore, instructions to the jury in a state criminal trial that merely omit a proper description of the requirement of proof of every element of a crime beyond a reasonable doubt are themselves erroneous under the Fourteenth Amendment’s due process clause incorporating the Fifth and Sixth *524 Amendments. {Sullivan v. Louisiana, supra, 508 U.S. at pp. 277-278 [113 S.Ct. at pp. 2080-2081].)

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

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

“It is self-evident, we think, that the Fifth Amendment requirement of proof beyond a reasonable doubt and the Sixth Amendment requirement of a jury verdict are interrelated. It would not satisfy the Sixth Amendment to have a jury determine that the defendant is probably guilty, and then leave it up to the judge to determine . . . whether he is guilty beyond a reasonable doubt. In other words, the jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt.” {Sullivan v. Louisiana, supra, 508 U.S. at pp. 277-278 [113 S.Ct. at pp. 2080-2081], italics in original.)

Likewise—and of chief concern here—instructions to the jury in a state criminal trial that omit the requirement of proof of every element of a crime beyond a reasonable doubt are erroneous under the Fourteenth Amendment’s due process clause incorporating the Fifth and Sixth Amendments. In United States v. Gaudin (1995) 515 U.S. 506 [ 115 S.Ct. 2310 , 132 L.Ed.2d 444 ] (hereafter sometimes Gaudin), the United States Supreme Court held that instructions to the jury in a federal criminal trial that omit the requirement of proof of every element of a crime beyond a reasonable doubt are erroneous under the Fifth and Sixth Amendments. {Id. at pp. 509-511, 522-523 [115 S.Ct. at pp. 2313-2314, 2319].) A similar holding is compelled here. In Sullivan's words, a “judge . . . may not direct a verdict for the State,” as to a crime as a whole, “no matter how overwhelming the evidence.” {Sullivan *525 v. Louisiana, supra, 508 U.S. at p. 277 [ 113 S.Ct. at p. 2080 ].) So too, as Justice Scalia stated in his concurring opinion in Carella v. California (1989) 491 U.S. 263 [ 109 S.Ct. 2419 , 105 L.Ed.2d 218 ] (hereafter sometimes Carella), a judge may not direct such a verdict as to any of its elements. (Id. at pp. 268-269 [109 S.Ct. at pp. 2422-2423] (cone. opn. of Scalia, J.).) The instructional omission of an element is tantamount to a directed verdict thereon. (Ibid.)

II

The second question that we must address is whether the superior court’s instructional omission of the peace officer element of the crime of willful flight from a peace officer is reversible under the United States Constitution.

For error under the United States Constitution, as made plain in decisions of the United States Supreme Court including Sullivan and Yates v. Evatt (1991) 500 U.S. 391 [ 111 S.Ct. 1884 , 114 L.Ed.2d 432 ] (hereafter sometimes Yates), 3 the general rule on direct review of a state criminal judgment is harmless error analysis pursuant to Chapman v. California (1967) 386 U.S. 18 [ 87 S.Ct. 824 , 17 L.Ed.2d 705 , 24 A.L.R.3d 1065 ] (hereafter sometimes Chapman), with its “harmless beyond a reasonable doubt” standard; the exception is automatic reversal. (E.g., Sullivan v. Louisiana, supra, 508 U.S. at pp. 278-279 [113 S.Ct. at pp. 2080-2082]; see, e.g., Yates v. Evatt, supra, 500 U.S. at p. 402 [ 111 S.Ct. at p. 1892 ].)

On the question of reversibility, as on the question of error, the answer that we must give is affirmative.

A

The superior court’s instructional omission of the peace officer element of the crime of willful flight from a peace officer is automatically reversible. 4

Instructions to the jury in a state criminal trial that omit the requirement of proof of every element of a crime beyond a reasonable doubt are automatically reversible. (See Jackson v. Virginia, supra, 443 U.S. at p. 320, fn. 14 [ 99 S.Ct. at p. 2790 ].)

Furthermore, instructions to the jury in a state criminal trial that merely omit a proper description of the requirement of proof of every element of a crime beyond a reasonable doubt are themselves automatically reversible. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 278-282 [113 S.Ct. at pp. 2080-2083].)

*526 Sullivan finds support for such conclusions in Chapman itself. “Consistent with the jury-trial guarantee,” Sullivan teaches, “the question” Chapman “instructs the reviewing court to consider is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand. [Citation.] Harmless-error review looks ... to the basis on which ‘the jury actually rested its verdict.’ [Citation.] The inquiry, in other words, 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. [Citations.]

“Once the proper role of an appellate court engaged in the Chapman inquiry is understood, the illogic of harmless-error review” in the face of an instructional omission bearing on the standard of proof beyond a reasonable doubt “becomes evident. [When] . . . 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” the defendant “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. [Citation.] The Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty.” (Sullivan v. Louisiana, supra, 508 U.S. at pp. 279-280 [113 S.Ct. at pp. 2081-2082], italics in original.)

Likewise—and of chief concern here—instructions to the jury in a state criminal trial that omit the requirement of proof of every element of a crime beyond a reasonable doubt are automatically reversible. Under the holding of Sullivan , there is no jury verdict within the meaning of the Sixth Amendment that can support harmless error analysis when there is an instructional omission bearing on the standard of proof beyond a reasonable doubt; for there is then no jury verdict that the defendant is guilty of the crime beyond a reasonable doubt. Under the reasoning of Sullivan , there is similarly no jury verdict within the meaning of the Sixth Amendment that can support harmless error analysis when there is an instructional omission of an element of the crime; for there is then no jury verdict that the defendant is guilty of the crime beyond a reasonable doubt.

*527 Assume that a crime with which Defendant A and Defendant B are separately charged has three elements.

At Defendant A’s trial, there is an instructional omission bearing on the standard of proof beyond a reasonable doubt; the jury purportedly finds him guilty -of the crime by finding all three of its elements, albeit not beyond a reasonable doubt; its verdict may be graphically depicted thus:

[[Image here]]

At Defendant B’s trial there is an instructional omission of one of the elements of the crime; the jury purportedly finds him guilty of the crime by finding two of its elements beyond a reasonable doubt, without finding the third element at all; its verdict may be graphically depicted thus:

[[Image here]]

Defendant A’s trial is covered by Sullivan’s holding. The instructional omission bearing on the standard of proof beyond a reasonable doubt is automatically reversible because a reviewing court cannot supply its own findings of the three elements beyond a reasonable doubt in place of the jury’s findings not beyond a reasonable doubt (Sullivan v. Louisiana, supra, *528 508 U.S. at pp. 280-281 [113 S.Ct. at pp. 2082-2083])—graphically, it cannot make up for what is partially lacking in each of the three bars representing the elements. In Sullivan’s words: “A reviewing court can only engage in pure speculation—its view of what a reasonable jury would have done. And when it does that, ‘the wrong entity judgefs] the defendant guilty.’ ” (Id. at p. 281 [ 113 S.Ct. at p. 2082 ].)

Defendant B’s trial is covered by Sullivan’s reasoning. The instructional omission of the third element is automatically reversible because a reviewing court cannot supply its own finding of the element in place of the jury’s nonfinding (see Sullivan v. Louisiana, supra, 508 U.S. at pp. 280-281 [113 S.Ct. at pp. 2082-2083])—graphically, it cannot make up for what is totally lacking in the third bar representing that element. Sullivan’s words, quoted above, bear requotation: “A reviewing court can only engage in pure speculation—its view of what a reasonable jury would have done. And when it does that, ‘the wrong entity judge[s] the defendant guilty.’ ” (Id. at p. 281 [ 113 S.Ct. at p. 2082 ].)

At this point, we should note Sullivan’s final sentences prior to disposition, with their reference to Arizona v. Fulminante (1991) 499 U.S. 279 [ 111 S.Ct. 1246 , 113 L.Ed.2d 302 ] (hereafter Fulminante), and to the distinction between “structural” and “trial” defects or errors that Chief Justice Relinquish fabricated in his opinion therein. “In Fulminante , we distinguished between, on the one hand, ‘structural defects in the constitution of the trial mechanism, which defy analysis by “harmless-error” standards,’ [citation], and, on the other hand, trial errors which occur ‘during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented,’ [citation]. Denial of the right to a jury verdict of guilt beyond a reasonable doubt is certainly an error of the former sort, the jury guarantee being a ‘basic protectio[n]’ whose precise effects are unmeasurable, but without which a criminal trial cannot reliably serve its function, [citation]. The right to trial by jury reflects ... ‘a profound judgment about the way in which law should be enforced and justice administered.’ [Citation.] The deprivation of that right, with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as ‘structural error.’ ” (Sullivan v. Louisiana, supra, 508 U.S. at pp. 281-282 [113 S.Ct. at pp. 2082-2083].)

To conclude.

As in Sullivan itself, a defendant’s “right to a jury verdict of guilt beyond a reasonable doubt” (Sullivan v. Louisiana, supra, 508 U.S. at p. 281 [ 113 S.Ct. at p. 2083 ]) as to a crime is denied when there is an instructional omission bearing on the standard of proof beyond a reasonable doubt: there *529 is then no jury verdict that the defendant is guilty of the crime beyond a reasonable doubt.

So too, as in this cause, a defendant’s “right to a jury verdict of guilt beyond a reasonable doubt” {Sullivan v. Louisiana, supra, 508 U.S. at p. 281 [ 113 S.Ct. at p. 2083 ]) as to a crime is denied when there is an instructional omission of an element of the crime: there is then no jury verdict that the defendant is guilty of the crime beyond a reasonable doubt.

B

Even if it were not automatically reversible, the superior court’s instructional omission of the peace officer element of the crime of willful flight from a peace officer could not be held harmless beyond a reasonable doubt under Chapman. 5

“The Chapman test,” as explained in Yates , “is whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” {Yates v. Evatt, supra, 500 U.S. at pp. 402-403 [111 S.Ct. at p. 1892], quoting Chapman v. California, supra, 386 U.S. at p. 24 [ 87 S.Ct. at p. 828 ]; accord, Sullivan v. Louisiana, supra, 508 U.S. at pp. 278-279 [113 S.Ct. at pp. 2080-2082].) “To say that an error did not ‘contribute’ to the ensuing verdict” is “to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” (Yates v. Evatt, supra, 500 U.S. at p. 403 [111 S.Ct. at pp. 1893]; accord, Sullivan v. Louisiana, supra, 508 U.S. at pp. 278-280 [ 113 S.Ct. at p. 2080-2082 ].)

Thus, the focus under Chapman is what the jury actually decided and whether the error may have tainted its decision. “[T]he issue ... is whether the jury actually rested its verdict on” an adequate basis, “independently of the” error.' {Yates v. Evatt, supra, 500 U.S. at p. 404 [ 111 S.Ct. at p. 1893 ].) Stated differently, whether the error had any “effect” “upon the . . . verdict in the case at hand.” {Sullivan v. Louisiana, supra, 508 U.S. at p. 279 [ 113 S.Ct. at p. 2081 ].) Or in still other words, “whether the . . . verdict actually rendered in this trial was surely unattributable to the error.” {Ibid., italics in original.)

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

*530 First, a reviewing court is not the proper decision maker. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 278-281 [113 S.Ct. at pp. 2080-2082].) To be sure, Rose v. Clark (1986) 478 U.S. 570, 579 [ 106 S.Ct. 3101, 3106 , 92 L.Ed.2d 460 ] (hereafter Clark)—on which the majority rely—states that an error is harmless “[w]here a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt. . . .” Moreover, Pope v. Illinois (1987) 481 U.S. 497, 502-503 [ 107 S.Ct. 1918, 1921-1922 , 95 L.Ed.2d 439 ] (hereafter sometimes Pope)—on which the majority also rely—quotes that language (albeit inaccurately) with approval. Questions about the soundness of Clark and Pope in this regard were raised by the analysis in Justice Scalia’s concurring opinion in Carella . They were soon resolved. Yates expressly declares that the Clark statement is simply “not. . . correct.” (Yates v. Evatt, supra, 500 U.S. at p. 403, fn. 8 [111 S.Ct. at p. 1892].) And Sullivan impliedly disapproves Pope's approval of that language, relying as it does on Justice Stevens’s dissenting opinion in Pope : “The harmless-error doctrine may enable a court to remove a taint from proceedings in order to preserve a jury’s findings, but it cannot constitutionally supplement those findings.” {Pope v. Illinois, supra, 481 U.S. at p. 509 [107 S.Ct. at pp. 1925-1926] (dis. opn. of Stevens, J.), italics in original, cited in Sullivan v. Louisiana, supra, 508 U.S. at p. 280 [ 113 S.Ct. at p. 2082 ].) By its very terms, of course, Chapman precludes a reviewing court from finding harmlessness based simply “upon” its own “view of ‘overwhelming evidence.’ ” {Chapman v. California, supra, 386 U.S. at p. 23 [ 87 S.Ct. at p. 827 ].)

Second, a reviewing court is not automatically entitled to consider the entire record. The broad “assumption” in decisions like Clark that the “harmlessness of an error is to be judged after a review of the entire record” is unsound—unless, that is, “the jurors, as reasonable persons, would have considered the entire . . . record” in spite of the error. {Yates v. Evatt, supra, 500 U.S. at pp. 405-406 [111 S.Ct. at p. 1894].)

Neither is the focus under Chapman what a reviewing court might conjecture the jury would have decided in the absence of the error. The “hypothetical inquiry” whether, if the jury had not been exposed to the error, it would have made the decision that it did, “is inconsistent with the harmless-error standard announced in Chapman .... While such a hypothetical inquiry ensures that the State has, in fact, proved” what it had to prove “beyond a reasonable doubt, it does not ensure that it has” done so “to the satisfaction of a jury." {Yates v. Evatt, supra, 500 U.S. at p. 414 [ 111 S.Ct. at p. 1898 ] (cone. opn. of Scalia, J.), italics in original; accord, Sullivan v. Louisiana, supra, 508 U.S. at pp. 278-281 [113 S.Ct. at pp. 2080-2083].) “The inquiry, in other words, is not whether, in a trial that occurred without *531 the error, a guilty verdict would surely have been rendered . . . {Sullivan v. Louisiana, supra, 508 U.S. at p. 279 .) Here, Sullivan relies on Justice Stevens’s dissenting opinion in Pope : “It is fundamental that an appellate court... is not free to decide in a criminal case that, if asked, a jury would have found something that it did not find.” {Pope v. Illinois, supra, 481 U.S. at pp. 509-510 [ 107 S.Ct. at p. 1926 ] (dis. opn. of Stevens, J.), italics in original, cited in Sullivan v. Louisiana, supra, 508 U.S. at p. 280 [ 113 S.Ct at p. 2082 ].)

Lastly, the focus under Chapman is not what a reviewing court might speculate concerning “what effect the . . . error might generally be expected to have upon a reasonable jury . . . .” {Sullivan v. Louisiana, supra, 508 U.S. at p. 279 [ 113 S.Ct. at p. 2081 ].) Thus, Pope’s concern with what a “rational jury” might or might not find is beside the point. {Pope v. Illinois, supra, 481 U.S. at p. 503 [ 107 S.Ct. at p. 1922 ].) “[M]ore than appellate speculation about a hypothetical jury’s action” is required. {Sullivan v. Louisiana, supra, 508 U.S. at p. 280 [ 113 S.Ct. at p. 2082 .)

In determining whether the superior court’s instructional omission of the peace officer element of the crime of willful flight from a peace officer could be held harmless beyond a reasonable doubt under Chapman, we must commence our analysis with the declaration of Yates in mind: “To say that an error did not contribute to the verdict is . . .to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” {Yates v. Evatt, supra, 500 U.S. at p. 403 [ 111 S.Ct. at p. 1893 ], italics added; accord, Sullivan v. Louisiana, supra, 508 U.S. at pp. 278-281 [113 S.Ct. at pp. 2080-2083].)

But how are we to go about assessing the “importance” or “unimportance” of the superior court’s instructional omission of the peace officer element of the crime of willful flight from a peace officer?

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

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

“Before reaching such a judgment, a court must take two quite distinct steps. First, it must ask what evidence the jury actually considered in reaching its verdict. ... In answering this question, a court does not *532 conduct a subjective enquiry into the jurors’ minds. The answer must come, instead, from analysis of the instructions given to the jurors and from application of that customary presumption that jurors follow instructions and, specifically, that they consider relevant evidence on a point in issue when they are told that they may do so.

“Once a court has made the first enquiry into the evidence considered by the jury, it must then weigh the probative force of that evidence as against the probative force of the presumption standing alone. To satisfy Chapman’s reasonable doubt standard, it will not be enough that the jury .considered evidence from which it could have come to the verdict without reliance on the presumption. Rather, the issue under Chapman is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption. Since that enquiry cannot be a subjective one into the jurors’ minds, a court must approach it by asking whether the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption.” (Yates v. Evatt, supra, 500 U.S. at pp. 403-405 [111 S.Ct. at p. 1893].)

Put differently, the first question is “whether the jury’s verdict . . . rest[ed] on that evidence as well as on the presumption[] . . . .” (Yates v. Evatt, supra, 500 U.S. at p. 407 [ 111 S.Ct. at p. 1895 ].)

The second question is “whether that evidence was of such compelling force as to show beyond a reasonable doubt that the presumption[] must have made no difference in reaching the verdict obtained”—in other words, whether the evidence of the presumed fact made the presumption superfluous. (Yates v. Evatt, supra, 500 U.S. at p. 407 [ 111 S.Ct. at p. 1895 ].)

“It is only when the effect of the presumption is comparatively minimal to this degree that it can be said, in Chapman’s words, that the presumption did not contribute to the verdict rendered.” (Yates v. Evatt, supra, 500 U.S. at p. 405 [111 S.Ct. at pp. 1893-1894].)

Yates goes on to suggest an even more “restrictive” analysis for an instruction incorporating a mandatory irrebuttable or “conclusive” presumption of an element of a crime. (Yates v. Evatt, supra, 500 U.S. at p. 406, fn. 10 [111 S.Ct. at p. 1894].) Review of this sort, which is expressly derived from Justice Scalia’s concurring opinion in Carella , “would focus only on the predicate facts to be relied on under the presumption and would require a court to determine whether they ‘are so closely related to the ultimate fact *533 to be presumed that no rational jury could find those facts without also finding that ultimate fact.’ ” (Ibid., quoting Carella v. California, supra, 491 U.S. at p. 271 [109 S.Ct. at pp. 2423-2424] (cone. opn. of Scalia, J.).) This “narrow focus” is appropriate “because the terms of a conclusive presumption tend to deter a jury from considering any evidence for the presumed fact beyond the predicate evidence; indeed, to do so would be a waste of the jury’s time and contrary to its instructions.” (Yates v. Evatt, supra, 500 U.S. at p. 406, fn. 10 [111 S.Ct. at p. 1894].)

It follows that an analysis more restrictive still would be required for an instruction omitting an element of a crime altogether. Such an instruction removes any “ultimate fact” from the jury’s consideration without leaving behind any “predicate facts” to be found. If a mandatory irrebuttable or conclusive presumption “tend[s] to deter a jury from considering any evidence for the presumed fact beyond the predicate evidence” (Yates v. Evatt, supra, 500 U.S. at p. 406, fn. 10 [111 S.Ct. at p. 1894]), an omission, by definition, withdraws the omitted fact entirely. “[S]uch an error cannot be harmless. See Sullivan [v. Louisiana, 508 U.S. 275, 278-281 (1993)] . . . ; see also Yates v. Evatt, 500 U.S. 391 , 406 . . . (1991) .... Harmless error analysis focuses on ‘the basis on which “the jury actually rested its verdict.” ’ Sullivan, [ 508 U.S. at 279 ] . . . ; Yates, 500 U.S. at 403 -05 . . . . Under the guidance of Yates , we may no longer consider the strength of evidence and determine whether it was so clear that the jury would have found the element of a crime to exist, had it been properly instructed, but, instead, we must determine whether the jury was actually able to consider that evidence under the instructions given by the court. When proof of an element has been completely removed from the jury’s determination, there can be no inquiry into what evidence the jury considered to establish that element because the jury was precluded from considering whether the element existed at all.” (U.S. v. Gaudin (9th Cir. 1994) 28 F.3d 943, 951 (in bank), affd. (1995) 515 U.S. 506 [ 115 S.Ct. 2310 , 132 L.Ed.2d 444 ], italics in original.)

Under an analysis of this sort, the superior court’s instructional omission of the peace officer element of the crime of willful flight from a peace officer could not be held harmless beyond a reasonable doubt under Chapman.

I accept that Yates permits “overwhelming” evidence to play a role with regard to an instruction incorporating a mandatory rebuttable presumption of an element of a crime: “[T]he 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 *534 cannot be a subjective one into the jurors’ minds, a court must approach it by asking whether the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption.” (Yates v. Evatt, supra, 500 U.S. at p. 405 [ 111 S.Ct. at 1893 ], italics added.) In this regard, however, Yates is without applicability here. In view of the absence of evidence that Officer Bridgeman and Officer Gurney were “appointed by the chief of police or the chief executive of the agency” (Pen. Code, § 830.1, subd. (a)), the evidence that they were peace officers was not “overwhelming.” Even if it had been such, it was presumably not considered by the jury in accordance with the instructions, for the superior court simply directed that Bridgeman and Gurney were, in fact, peace officers.

Ill

The majority do not, and cannot, disagree with the conclusion that the superior court’s instructional omission of the peace officer element of the crime of willful flight from a peace officer is erroneous under the United States Constitution. We may therefore pass on.

The majority, however, do indeed disagree with the conclusion that the superior court’s instructional omission of the peace officer element is reversible under the United States Constitution.

Before proceeding further, we must address, and reject, the majority’s attempt to cast doubt on the existence of the instructional omission of the peace officer element by casting doubt on the existence of the element itself—which, as noted, requires “appoint[ment]” as a “police officer ... of a city” “by the chief of police or the chief executive of the agency” as well as “employ[ment] in that capacity” (Pen. Code, § 830.1, subd. (a)). Such an effort may be discerned in their repeated reference to this element as merely a “component” of what they say is merely a single element of the crime of willful flight from a peace officer. As I read Vehicle Code sections 2800.1 and 2800.3, peace officer status may be deemed a “component” of every element. Or at least of virtually every element. The drafters of the pattern instruction followed by the superior court broke the crime down into eight elements—and peace officer status was a “component” of seven. (See pp. 522-523, fn. 1, ante.) We need not detain ourselves on this point. The majority fail to follow through. In the end, they admit what they must, owning that the “peace officer requirement is an expressly enumerated element of the crime . . . .” (Maj. opn., ante, at p. 505.)

We must similarly address, and reject, the majority’s attempt to minimize the significance of the instructional omission of the peace officer element by *535 minimizing the significance of the element itself. By definition, each and every element of a crime is necessary. Only in an Orwellian world would all elements be necessary, but some less necessary than others. In their effort to trivialize this element by labeling it “peripheral” (e.g., maj. opn., ante, at p. 505), they succeed only in marginalizing their own analysis.

We must next address, and reject, the majority’s attempt to deny the absence of evidence that Officer Bridgeman and Officer Gumey were peace officers, that is, that they were both “employed in [the] capacity” of “police officer[s]” of the City of Richmond and “appointed by the chief of police or the chief executive of the agency” (Pen. Code, § 830.1, subd. (a)). As to “employment,” the evidence may have been “uncontradicted.” (E.g., maj. opn., ante, at p. 475.) But, as to “appointment,” it was nonexistent. Relying on People v. Lara (1994) 30 Cal.App.4th 658 [ 35 Cal.Rptr.2d 886 ], the majority seek to avoid this inconvenience. They assert that it would be “ ‘unreasonable’ ” to require evidence of “appointment” “in light of the purpose of the statute and the presumption that official duty regularly has been performed . . . .” (Maj. opn., ante, at p. 491, fn. 13, quoting People v. Lara, supra, 30 Cal.App.4th at p. 666, fn. 2 .) It would not. The “purpose of the statute” (maj. opn., ante, at p. 491, fn. 13) is to define “peace officer” (see Pen. Code, § 830): Its definition expressly demands “appointment” (id., § 830.1, subd. (a)). Any “presumption that official duty regularly has been performed” (maj. opn., ante, p. 491, fn. 13) is without effect: There is no evidence whatsoever of the predicate fact underlying the presumption— namely, that the “chief of police or the chief executive of the agency” (Pen. Code, § 830.1, subd. (a)) was subject to any “official duty” (maj. opn., ante, p. 491, fn. 13) to make the “appointment” in question. 6

We must then address, and reject, the májority’s attempt to examine the instructional omission of the peace officer element, practically exclusively, in light of the distinction between “structural” and “trial” defects or errors, rather than under the Sixth Amendment jury-verdict preclusion analysis. We must do the opposite. Sullivan itself so implies. Other considerations are in support. When it was fabricated by Chief Justice Rehnquist in his opinion in Fulminante , the distinction between “structural” and “trial” defects or errors did not carry logical force. 7 In the years that have followed, it has not gained any. Hence, it should be allowed to operate only where it must, when it must.

*536 In concluding that the superior court’s instructional omission of the peace officer element is not automatically reversible, the majority rely largely on California v. Roy (1997) 519 U.S. 2 [ 117 S.Ct. 337 , 136 L.Ed.2d 266 ] (hereafter sometimes Roy), and Johnson v. United States (1997) 520 U.S. 461 [ 117 S.Ct. 1544 , 137 L.Ed.2d 718 ]] (hereafter sometimes Johnson). In vain.

The short answer is this. Roy and Johnson do nothing more than indicate, in contexts substantially different from the present one of direct review of a state criminal judgment, what is already apparent from the analysis set out above—namely, that the United States Supreme Court has not squarely held whether, on such review, an instructional omission of an element of a crime *537 is automatically reversible. In the absence of such a holding, all that we can do is to apply the court’s reasoning, which in the preceding pages has yielded a conclusion in the affirmative. And, of course, we have no choice but to apply the court’s reasoning. The question has been presented in this cause. We cannot wait for the court to give an answer sometime in the future. Neither ought we simply to attempt to guess what the court’s answer might be. “We are under a solemn obligation to interpret and implement the United States Constitution. We are no less capable of discharging that duty than any other court.” {People v. Harris, supra, 9 Cal.4th at p. 449, fn. 1 (cone. & dis. opn. of Mosk, J.).)

The long answer is as follows.

Roy did not arise in a context like the present, that is', direct review of a state criminal judgment, but rather in a context substantially different, that is, a federal habeas corpus proceeding by a state prisoner collaterally challenging such a judgment.

In Brecht v. Abrahamson (1993) 507 U.S. 619, 627-638 [ 113 S.Ct. 1710, 1716-1722 , 123 L.Ed.2d 353 ] (hereafter Brecht), the United States Supreme Court had held that, in a state-prisoner federal habeas corpus proceeding, the harmless error standard for a “trial” error violative of the United States Constitution was not whether the error was “harmless beyond a reasonable doubt” under Chapman, but whether it “had substantial and injurious effect or influence in determining the jury’s verdict” within the meaning of Kotteakos v. United States (1946) 328 U.S. 750, 776 [ 66 S.Ct. 1239, 1253 , 90 L.Ed. 1557 ] (hereafter Kotteakos), which applies to nonconstitutional error in federal criminal trials. It adopted the more tolerant test of Kotteakos instead of the less forgiving one of Chapman in recognition of such factors as the following: the historical distinction between direct review as the ordinary way to challenge a conviction, and state-prisoner federal habeas corpus as an extraordinary one, reserved for persons who have suffered grievous wrong; the state’s interest in finality; concerns of comity and federalism; and the avoidance of undue social costs. It implied that automatic reversal was required, even in a state-prisoner habeas corpus proceeding, for a “structural” error.

After trial in the Superior Court of the State of California for the County of Butte, Kenneth Duane Roy was convicted on a jury’s verdict of first degree murder and robbery. On appeal, he contended that the superior court had committed error under People v. Beeman (1984) 35 Cal.3d 547 [ 199 Cal.Rptr. 60 , 674 P.2d 1318 ] (hereafter Beeman), by inadequately defining the theory of vicarious liability based on aiding and abetting. In Beeman , we *538 had held that an aider and abettor must act both with “knowledge” of the perpetrator’s criminal purpose and with “intent” to attain its object. (Id. at p. 560.) The superior court, however, instructed only on knowledge and not also on intent. The Court of Appeal of the State of California for the Third Appellate District affirmed. It apparently deemed the error violative of the United States Constitution. But it held it harmless beyond a reasonable doubt under Chapman.

Filing a petition for writ of habeas corpus in the United States District Court for the Eastern District of California as a state prisoner, Roy raised the same contention of Beeman error. Finding the error harmless, the federal district court denied relief. A divided panel of the United States Court of Appeals for the Ninth Circuit affirmed. Later hearing the case in bank, the Ninth Circuit reversed. It stated that the “instructional error in this case may be described either as the omission ... or as the misdescription of an element” of a crime. (Roy v. Gomez (9th Cir. 1996) 81 F.3d 863, 867, fn. 4 (in bank).) It then applied a special kind of harmless error analysis: It based its standard on Justice Scalia’s concurring opinion in Carella , and looked to whether the jury necessarily found that Roy possessed the intent required for the theory of vicarious liability based on aiding and abetting; it qualified its test with the “tie-breaking” rule of O’Neal v. McAninch (1995) 513 U.S. 432, 436-437 [ 115 S.Ct. 992, 994-995 , 130 L.Ed.2d 947 ] (hereafter O’Neal), which states that, when, in a state-prisoner federal habeas corpus proceeding, the federal district court is “in grave doubt as to the harmlessness of an error,” the “petitioner must win.”

On certiorari, the United States Supreme Court vacated the judgment of the Ninth Circuit Court of Appeals and remanded the cause for further proceedings. In a per curiam opinion, it concluded as follows. In a state-prisoner federal habeas corpus proceeding, the federal district court, in accordance with Brecht , “ordinarily should apply the ‘harmless error’ standard . . . previously enunciated in Kotteakos . . . , namely ‘whether the error “had substantial and injurious effect or influence in determining the jury’s verdict.” ’ ” (California v. Roy, supra, 519 U.S. at pp. 4, 5 [117 S.Ct. at p. 338].) Furthermore, the federal district court, in accordance with O’Neal , must decide in the petitioner’s favor when it “ ‘is in grave doubt as to the harmlessness of an error . . . [.]’ ” (Id. at p. 5 [117 S.Ct. at p. 338].) “The state court[] in this case applied harmless-error analysis of the strict variety, and . . . found the error ‘harmless beyond a reasonable doubt.’ [Citation.] The specific error at issue here—an error in the instruction that defined the crime—is, as the Ninth Circuit itself recognized, as easily characterized as a ‘misdescription of an element’ of the crime, as it is characterized as an error of ‘omission.’ [Citation.] No one claims that the *539 error at issue here is of the ‘structural’ sort that ‘”def[ies] analysis by ‘harmless error’ standards.” ’ [Citation.] The analysis advanced by the Ninth Circuit, while certainly consistent with [Justice Scalia’s] concurring opinion in Carella , does not, in our view, overcome the holding of Brecht , followed in O’Neal , that for reasons related to the special function of habeas courts, those courts must review such error (error that may require strict review of the Chapman-type on direct appeal) under the Kotteakos standard.” (California v. Roy, supra, 519 U.S. at p. 5 [ 117 S.Ct. at p. 339 ].)

In a concurring opinion, Justice Scalia, who was joined by Justice Ginsburg on this point, stated that he “agree[d] with [the] . . . per curiam opinion . . . that the Brecht-0'Neal standard for reversal of the conviction (‘grave doubt as to the harmlessness of the error’) rather than the more stringent Chapman standard (inability to find the error ‘harmless beyond a reasonable doubt’) applies to the error in this case when it is presented, not on direct appeal, but as grounds for habeas corpus relief. . . . [ft] I do not understand the opinion, however, to address the question of what constitutes the harmlessness to which [Kotteakos’s] more deferential standard is applied . ... As we held in Sullivan v. Louisiana, 508 U.S. 275 [ 113 S.Ct. 2078 , 124 L.Ed.2d 182 ] (1993), a criminal defendant is constitutionally entitled to a jury verdict that he is guilty of the crime, and absent such a verdict the conviction must be reversed, ‘no matter how inescapable the findings to support that verdict might be.’ [Citation.] A jury verdict that he is guilty of the crime means, of course, a verdict that he is guilty of each necessary element of the crime. United States v. Gaudin, 515 U.S. [506, 522-523 [ 115 S.Ct. 2310, 2319-2320 , 132 L.Ed.2d 444 ]] (1995). Formally, at least, such a verdict did not exist here: the jury was never asked to determine that Roy had the [intent required for the theory of vicarious liability based on aiding and abetting]. People v. Beeman, 35 Cal.3d 547, 561 [ 199 Cal.Rptr. 60 , 674 P.2d 1318 ] (1984). [ft] The absence of a formal verdict on this point can not be rendered harmless by the fact that, given the evidence, no reasonable jury would have found otherwise. To allow the error to be cured in that fashion would be to dispense with trial by jury. ‘The Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty.’ Sullivan, supra, at 280 [113 S.Ct. at p. 2082]. The error in the present case can be harmless only if the jury verdict on other points effectively embraces this one or if it is impossible, upon the evidence, to have found what the verdict did find without finding this point as well. See Carella v. California, 491 U.S. 263, 271 [ 109 S.Ct. 2419, 2423-2424 , 105 L.Ed.2d 218 ] (1989) (Scalia, J., concurring). I concur in the remand so that the Ninth Circuit may determine whether there is ‘grave doubt’ that this is so . . . .” (California v. Roy, supra, 519 U.S. at pp. 6-7 [117 S.Ct. at pp. 339-340] (cone. opn. of Scalia, J.), italics in original.)

*540 What does Roy amount to?

At the outset, let us agree to overlook the United States Supreme Court’s error under California law, which followed that of the Ninth Circuit. The superior court committed Beeman error. That means that what it omitted in its instructions was not an element of a crime: From all that appears, it properly defined first degree murder and robbery, the offenses of which Roy was convicted. What it omitted was rather the intent required for the theory of vicarious liability based on aiding and abetting.

With that said, Roy indicates, in the context of a federal habeas corpus proceeding by a state prisoner collaterally challenging a state criminal judgment, that the United States Supreme Court has not squarely held whether, on direct review of such a judgment, an instructional omission of an element of a crime is automatically reversible. 8 For himself and Justice Ginsburg, Justice Scalia implied an affirmative answer to the underlying question. He allowed an exception only when the “jury verdict on other points effectively embraces” the omitted element {California v. Roy, supra, 519 U.S. at p. 7 [ 117 S.Ct. at p. 339 ] (cone. opn. of Scalia, J.))—that is, when the jury necessarily found the omitted element under other, proper instructions—or when “it is impossible, upon the evidence, to have found what the verdict did find without finding” the omitted element “as well” (id. at p. 7 [117 S.Ct. at p. 340] (cone. opn. of Scalia, J.), italics in original)— that is, when the jury found “predicate facts” that might be said to underlie the “ultimate fact” of the omitted element. The signatories of the per curiam opinion, by contrast, avoided the question altogether: they stated, erroneously, that Beeman error is an “error in the instruction that define[s] the crime,” and that it is “as easily characterized as a ‘misdescription of an element’ of the crime, as it is characterized as an error of ‘omission . . .’ they immediately added that “[n]o one” there “claims that the error at issue here is of the ‘structural’ sort that ‘ “def[ies] analysis by ‘harmless error’ standards . . .” ’ ” (California v. Roy, supra, 519 U.S. at p. 5 [ 117 S.Ct. at p. 339 ]). 9

Johnson , which we take up next, also did not arise in a context like the present, that is, direct review of a state criminal judgment, but rather in a *541 context substantially different, that is, direct review of a federal criminal judgment subject to the Federal Rules of Criminal Procedure.

Joyce B. Johnson was subpoenaed before a United States grand jury that was investigating matters including alleged drug trafficking by Earl James Fields, who was her lover. She testified that she had obtained tens of thousands of dollars to improve her home from a box of cash given to her late mother in 1985 or 1986 by one Gerald Talcott.

On the basis of this testimony, Johnson was indicted for perjury. One of the elements of this crime is the materiality of the statement or statements in question. At trial before a jury in the United States District Court for the Middle District of Florida, she faced evidence that Fields had negotiated the purchase of her home, that she had paid for the property with eight different cashier’s checks, including two from a corporation in which Fields had an interest, and that Talcott had died in 1982, long before he had assertedly given her late mother the mysterious “box of cash.” Without any objection on her part, the federal district court omitted the element of materiality from its instructions to the jury: It stated that materiality was a question entrusted to its determination; it then directed that the statements at issue were, in fact, material. The jury returned a verdict of guilty. The federal district court rendered judgment accordingly.

Subsequently, in Gaudin, the United States Supreme Court held that an instructional omission of the element of materiality of the crime of making false statements, which is related to the crime of perjury, was erroneous under the Fifth and Sixth Amendments. (United States v. Gaudin, supra, 515 U.S. at pp. 509-511, 522-523 [115 S.Ct. at pp. 2313-2314, 2319-2320].)

On Johnson’s appeal, the United States Court of Appeals for the Eleventh Circuit affirmed. Johnson apparently contended that, pursuant to Gaudin, the federal district court’s instructional omission of the element of materiality of the .crime of perjury was erroneous under the Fifth and Sixth Amendments and, as such, automatically reversible. Applying rule 30 of the Federal Rules of Criminal Procedure (18 U.S.C.) (hereafter rule 30), the Eleventh Circuit determined that, by failing to object to the instructional omission, she had failed to preserve her claim for review. Rule 30 states that “[n]o party may assign as error any portion of the [jury] charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection.” Looking to rule 52(b) of the same rules (hereafter rule 52(b)), the Eleventh Circuit proceeded to determine whether it could consider the claim nonetheless. Rule 52(b) states that “[p]lain errors . . . affecting *542 substantial rights may be noticed although they were not brought to the attention of the court.” In this regard, the Eleventh Circuit followed United States v. Olano (1993) 507 U.S. 725, 731-737 [ 113 S.Ct. 1770, 1776-1780 , 123 L.Ed.2d 508 ] (hereafter Olano), which holds to the following effect: Under rule 52(b), a federal appellate court has discretionary authority to reach an error that has not been preserved for review, and to reverse therefor, only if there was “error,” the error was “plain,” and the plain error “affected] substantial rights,” which normally means that it had a prejudicial effect on the outcome; it may not exercise such authority, however, unless the error in question “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” The Eleventh Circuit determined that it could not consider the claim. It apparently assumed that the instructional omission of the element of materiality was “error” and that such error was “plain,” but concluded that any such plain error did not “affect[] substantial rights” because the evidence that the statements in question were material was “overwhelming,” and no reasonable juror could find otherwise.

On certiorari, the United States Supreme Court affirmed.

The court held that, pursuant to Gaudin, an instructional omission of the element of materiality of the crime of making false statements was indeed erroneous under the Fifth and Sixth Amendments.

But the court also held that, under rule 30, Johnson had failed to preserve her claim for review by failing to object to the instructional omission below, and that, under rule 52(b), the Eleventh Circuit could not consider the point.

At the outset, the court rejected an argument made by Johnson that the Federal Rules of Criminal Procedure did not apply because an instructional omission of an element of a crime is a “structural” error: The “seriousness of the error claimed does not remove consideration of it from [their] ambit . . . .” (Johnson v. United States, supra, 520 U.S. at p. 466 [ 117 S.Ct. at p. 1548 ].)

The court then turned to apply rule 52(b) as construed in Olano . It concluded as follows. First, the instructional omission below was “error.” (Johnson v. United States, supra, 520 U.S. at p. 467 [ 117 S.Ct. at p. 1549 ].) Second—in a part in which Justice Scalia did not join—it was “plain error.” (Id. at p. 467 [117 S.Ct. at p. 1549].) Third—in another part in which Justice Scalia did not join—it may, or may not, have “affect[ed] substantial rights”—a question that was left undecided: “It is at this point that [Johnson’s] argument that the failure to submit an element of the offense to the jury is ‘structural error’ becomes relevant. She contends in effect that if *543 an error is so serious as to defy harmless-error analysis, it must also ‘affec[t] substantial rights.’ . . . ffl] It is by no means clear that the error here fits within [the ‘structural’] class .... Sullivan v. Louisiana , the case most closely on point, held that the erroneous definition of ‘reasonable doubt’ vitiated all of the jury’s findings because one could only speculate what a properly charged jury might have done. [Citation.] The failure to submit materiality to the jury, as in this case, can just as easily be analogized to improperly instructing the jury on an element of the offense, [citations], an error which is subject to harmless-error analysis, as it can be to failing to give a proper reasonable-doubt instruction altogether.” {Johnson v. United States, supra, 520 U.S. atpp. 468-469 [117 S.Ct. atpp. 1549-1550].) Fourth, even on the assumption that it did indeed “ ‘affect[] substantial rights,’ ” the instructional omission did not “ ‘seriously affect[] the fairness, integrity or public reputation of judicial proceedings’ ” {id. at p. 469 [117 S.Ct. at p. 1550]: “[T]he evidence supporting materiality was ‘overwhelming.’ [Citation.] Materiality was essentially uncontroverted at trial and has remained so on appeal. . . . [Johnson] has presented no plausible argument [to the contrary]. [^] On this record there is no basis for concluding that the error ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.’ Indeed, it would be the reversal of a conviction such as this which would have that effect. ‘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). No ‘miscarriage of justice’ will result here if we do not notice the error, [citation], and we decline to do so.” {Johnson v. United States, supra, 520 U.S. at p. 470 [ 117 S.Ct. at p. 1550 ], fn. omitted.)

What does Johnson amount to? It indicates, in the context of direct review of a federal criminal judgment subject to the Federal Rules of Criminal Procedure, that the United States Supreme Court has not squarely held whether, on direct review of a state criminal judgment not subject to those rules, an instructional omission of an element of a crime is automatically reversible. Again, the court avoided the question: “It is by no means clear that the error here fits within” the “structural” class. {Johnson v. United States, supra, 520 U.S. at p. 469 [ 117 S.Ct. at p. 1550 ].) Justice Scalia avoided the avoidance by not joining therein. Contrary to the majority’s assertion, the court did not “suggest[]” (maj. opn., ante, at p. 501) that, on direct review of a state criminal judgment, an instructional omission of an element of a crime is not automatically reversible. Also contrary to their assertion, the fact that the court, at the end, relied in part on its own view that the “evidence supporting materiality was ‘overwhelming . . .’” {Johnson v. United States, supra, 520 U.S. at p. 470 [ 117 S.Ct. at p. 1550 ]) does not conflict with the reasoning of Sullivan and its implication that an *544 instructional omission of an element of a crime is automatically reversible. That is because any claim as to such an omission was not preserved for review. In circumstances of this sort, all that remained to determine under rule 52(b) as construed in Olano was, in effect, whether justice had miscarried. In view of the fact that the government “ha[d], in fact, proved” the element in question “beyond a reasonable doubt,” albeit not “to the satisfaction of a jury” (Yates v. Evatt, supra, 500 U.S. at p. 414 [ 111 S.Ct. at p. 1898 ] (cone. opn. of Scalia, J.), italics omitted), the conclusion must be no.

Having disposed of Roy and Johnson , we come to this. Recall the hypothetical about Defendant A and Defendant B with its graphical depiction of the jury verdict returned against each. (See pp. 527-528, ante.) The instructional omission at Defendant A’s trial bearing on the standard of proof beyond a reasonable doubt is automatically reversible under Sullivan’s holding because a reviewing court cannot supply its own findings of the elements of the crime beyond a reasonable doubt in place of the jury’s findings not beyond a reasonable doubt—graphically, it cannot make up for what is partially lacking in each of the bars representing the elements. The majority effectively admit this proposition, as they must. The instructional omission at Defendant B’s trial of one of the elements is automatically reversible under Sullivan’s reasoning because a reviewing court cannot supply its own finding of the element in place of the jury’s nonfinding—graphically, it cannot make up for what is totally lacking in the bar representing that element. The majority effectively deny this proposition, as they may not. For, if a reviewing court cannot make up for what is partially lacking in all the elements, it cannot make up for what is totally lacking in one: if it cannot supply part of all, it cannot supply all of a part.

Next, in concluding that the superior court’s instructional omission of the peace officer element of the crime of willful flight from a peace officer can be held harmless beyond a reasonable doubt under Chapman, the majority rely largely on certain apparent exceptions to the rule of automatic reversal for an omission of this sort.

In Justice Blackmun’s plurality opinion in Connecticut v. Johnson (1983) 460 U.S. 73 [ 103 S.Ct. 969 , 74 L.Ed.2d 823 ], our later opinion in People v. Garcia (1984) 36 Cal.3d 539 [ 205 Cal.Rptr. 265 , 684 P.2d 826 ] (hereafter sometimes Garcia), and Justice Scalia’s still later concurring opinion in Carella , four such exceptions suggest themselves: (1) the element belonged only to a crime as to which the jury acquitted the defendant; (2) the element was admitted by the defendant; (3) the element was necessarily found by the jury under other, proper instructions; and (4) the element was effectively found by the jury inasmuch as it was an ultimate presumed fact that was so *545 closely related to its predicate facts that the jury’s finding of the latter was functionally equivalent to a finding of the former.

In this cause, however, the first of these exceptions is not applicable. The majority do not claim otherwise. The peace officer element of the crime of willful flight from a peace officer did not belong only to a crime as to which the jury acquitted defendant. Rather, it pertained to one of which it found him guilty.

Neither is the second of these exceptions applicable. The peace officer element was not admitted by defendant. True, it was not contested in the course of his defense. But it was put into dispute by his plea of not guilty (Pen. Code, § 1019), and was not removed from dispute by any of his acts or omissions thereafter. The majority argue to the contrary. Wrongly. In part, they assert that defendant requested the pattern instruction followed by the superior court, in which the latter directed, apparently sua sponte, that “Officer Bridgeman and Officer Gurney are peace officers.” (Italics added.) The record on appeal discloses that defendant asked for the pattern instruction. But it does not disclose that he asked for the direction that Bridgeman and Gurney were, in fact, peace officers. In other part, the majority assert, in effect, that a defendant admits any element that he fails to contest. If that were so, most defendants, who do not defend scattershot, would be deemed to admit most elements, and some, who defend by mistaken identity, would be deemed to admit all. And if that were so, the requirement of the Fourteenth Amendment’s due process clause that the state must prove every element of a crime beyond a reasonable doubt would be rendered nugatory. 10

The third of these exceptions is also not applicable. The majority do not claim otherwise. The peace officer element was not necessarily found by the jury under other, proper instructions. Instead of being found, it was given: the superior court simply directed that “Officer Bridgeman and Officer Gurney are peace officers.” (Italics added.)

Neither is the fourth of these exceptions applicable. The peace officer element was not effectively found by the jury. To repeat: Instead of being found, it was given. In any event, there were simply no “predicate facts” that might be said to underlie the “ultimate fact” of the status of Officer *546 Bridgeman and Officer Gurney as peace officers. Here too, the majority argue to the contrary. Again, wrongly. At bottom, they assert that the evidence that Bridgeman and Gurney were peace officers was “overwhelming.” They must know that, even in a proper case, such an invocation has no talismanic force. They must also know that this is not a proper case. For, although there was indeed evidence as to Bridgeman’s and Gurney’s “employ[ment] in [the] capacity” of “police officer[s]” of the City of Richmond (Pen. Code, § 830.1, subd. (a)), there was none whatsoever as to their “appointment] by the chief of police or the chief executive of the agency” (ibid.). The majority attempt to deny the absence of evidence of “appointment” and, more radically, the absence of any requirement of such evidence. I have already shown that they fail. I need not do so once more.

In Garcia , we derived from People v. Cantrell (1973) 8 Cal.3d 672 [ 105 Cal.Rptr. 792 , 504 P.2d 1256 ], and People v. Thornton (1974) 11 Cal.3d 738 [ 114 Cal.Rptr. 467 , 523 P.2d 267 ], a possible additional exception—one that would cover a case in which the “parties recognized that” the omitted element was “in issue,” during which they “presented all evidence at their command” thereon, and in which the “record not only establishes” the element “as a matter of law but shows the contrary evidence not worthy of consideration.” (People v. Garcia, supra, 36 Cal.3d at p. 556 .) In so doing, we stated that we were then “uncertain whether the United States Supreme Court” would “endorse” such an exception. (Ibid.)

After Sullivan , we find our “uncertainty” dispelled: we now know that the United States Supreme Court will not “endorse” the Cantrell-Thomton exception. For this exception—which is unique to California, and has never even been referred to by the court of any other jurisdiction, state or federal, in a reported decision^would require a reviewing court to infer what the parties knew, assess what they did, and then determine in whose direction, and how sharply, the balance of evidence verged. If it were to do that, a reviewing court would “engage in pure speculation—its view of what a reasonable jury would have done.” (Sullivan v. Louisiana, supra, 508 U.S. at p. 281 [ 113 S.Ct. at p. 2082 ].) And if it were to do that, “ ‘the wrong entity [would] judge[] the defendant guilty.’ ” (Ibid., italics added.)

But even if the Cantrell-Thomton exception could be accepted, it would not be applicable here. For we could hardly conclude, as we would have to, that the People and defendant “recognized” that the peace officer element was “in issue.” (People v. Garcia, supra, 36 Cal.3d at p. 556 .) The People requested an instruction, to which defendant did not object, that—at least as given (see p. 522, ante)—all but expressly stated that the peace officer element was not “in issue”: “Officer Bridgeman and Officer Gurney are *547 peace officers.” (Italics added.) Furthermore, we could hardly conclude, as we would have to, that the People and defendant “presented all evidence at their command” on the peace officer element. (People v. Garcia, supra, 36 Cal.3d at p. 556 .) As stated, neither the People nor defendant presented any evidence whatsoever on the underlying question whether Bridgeman and Gurney had been “appointed by the chief of police or the chief executive of the agency.” (Pen. Code, § 830.1, subd. (a).) Again, the majority attempt to deny the absence of evidence of “appointment” and, more radically, the absence of any requirement of such evidence. Again, I have already shown that they fail, and need not do so once more.

In substance and effect, the majority hold the superior court’s instructional omission of the peace officer element of the crime of willful flight from a peace officer to be harmless beyond a reasonable doubt under Chapman “upon” their own “view” that the “ ‘evidence’ ” that Officer Bridgeman and Officer Gurney were peace officers was “ ‘overwhelming.’ ” (Chapman v. California, supra, 386 U.S. at p. 23 [ 87 S.Ct. at p. 827 ].) By its very terms, Chapman precludes them from doing so. (Ibid.) “The most” that they could “conclude is that” the “jury”—provided that it had been presented with evidence that Bridgeman and Gurney were “appointed by the chief of police or the chief executive of the agency” (Pen. Code, § 830.1, subd. (a))— “would surely have found” defendant “guilty beyond a reasonable doubt . . . .” (Sullivan v. Louisiana, supra, 508 U.S. at p. 280 [ 113 S.Ct. at p. 2082 ], italics in original.) But “[t]hat is” simply “not enough.” (Ibid.) 11

*548 IV

Because the superior court committed reversible error under the United States Constitution by omitting from its instructions the peace officer element of the crime of willful flight from a peace officer, I would reverse the judgment of the Court of Appeal to the extent that it affirmed the judgment of the superior court convicting defendant of this crime.

In pertinent part, the superior court’s instruction on the crime of willful flight from a peace officer was as follows:

“[E]very person who flees or attempts to elude a pursuing peace officer in violation of Vehicle Code Section 2800.1, and the flight or attempt to elude causes death or serious bodily injury to any person is guilty of a violation of Vehicle Code Section 2800.3, a felony.

“Officer Bridgeman and Officer Gurney are peace officers.

a

“In order to prove a violation of Vehicle Code section 2800.3, each of the following elements must be proved:

“1. A person, while operating a motor vehicle, willfully fled or otherwise attempted to elude a pursuing peace officer;

“2. Such person did so with the specific intent to evade the pursuing peace officer; *523 “3. The peace officer’s vehicle exhibited at least one lighted red lamp visible from the front;

“4. The person saw or reasonably should have seen the red lamp;

“5. The peace officer’s vehicle sounded a siren as reasonably necessary;

“6. The peace officer’s motor vehicle was distinctively marked, as defined;

“7. The peace officer’s motor vehicle was operated by a peace officer wearing a distinctive uniform; and ■

“8. The flight from or the attempt to elude a pursuing police officer was the cause of serious bodily injury to another person.” (Italics added.)

For the analysis in this section, see People v. Kobrin (1995) 11 Cal.4th 416, 430 [ 45 Cal.Rptr.2d 895 , 903 P.2d 1027 ] (cone. opn. of Mosk, J.); People v. Hansen (1994) 9 Cal.4th 300, 327 , footnote 6 [ 36 Cal.Rptr.2d 609 , 885 P.2d 1022 ] (cone. & dis. opn. of Mosk, J.).

Yates contains language, bearing on a point not pertinent here, that is disapproved in Estelle v. McGuire (1991) 502 U.S. 62, 73 , footnote 4 [ 112 S.Ct. 475, 482 , 116 L.Ed.2d 385 ],

For the analysis in this section, see People v. Kobrin, supra, 11 Cal.4th at page 430 (cone, opn. of Mosk, J.); People v. Hansen, supra, 9 Cal.4th at page 328, footnote 8 (cone. & dis. opn. of Mosk, J.).

For the analysis in this section, see People v. Harris (1994) 9 Cal.4th 407, 440-444 [ 37 Cal.Rptr.2d 200 , 886 P.2d 1193 ] (cone. & dis. opn. of Mosk, J.); cf. People v. Johnson (1993) 6 Cal.4th 1, 55-59 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ] (cone. & dis. opn. of Mosk, J.) (dealing with an instructional omission of an element of a death-qualifying special circumstance).

The majority also assert that “defendant does not contend that the prosecution was required to present evidence of’ “appointment.” (Maj. opn., ante, at p. 490, fn. 13.) Not expressly perhaps. But certainly by implication.

As I explained in my dissenting opinion in People v. Cahill (1993) 5 Cal.4th 478 [ 20 Cal.Rptr.2d 582 , 853 P.2d 1037 ] (hereafter sometimes Cahill):

*536 “[In Fulminante,] Chief Justice Rehnquist . . . declare[s] that the question whether a federal constitutional error is automatically reversible or, instead, is subject to harmless-error analysis under Chapman depends on the following crucial distinction.

“On one side, there is what he labels ‘ “trial error,” ’ which ‘occurfs] during the presentation of the case to the jury, and which may therefore be quantitatively assessed ... in order to determine whether [it] was harmless beyond a reasonable doubt.’ [Citation.] . . .

“On the other, there are what he calls ‘structural defects in the constitution of the trial mechanism, which defy analysis by “harmless-error” standards.’ [Citation.] Here, assertedly, belong, inter alia, the ‘total deprivation of the right to counsel at trial,’ the participation of a ‘judge who was not impartial,’ the ‘unlawful exclusion of members of the defendant’s race from a grand jury,’ the denial of the ‘right to self-representation at trial,’ and the deprivation of the ‘right to public trial.’ [Citation.] Each of these flaws ‘affect[s]’ the ‘entire conduct of the trial from beginning to end’ or the ‘framework within which the trial proceeds.’ [Citation.] ‘ “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.” ’ [Citation.]

“Chief Justice Rehnquist’s crucial distinction ‘fails.’ [Citation.] His dichotomy, it may be noted, ‘has no support in precedent.’ [Citation.] And that is the least of its weaknesses.

“To begin with, the distinction simply does not work. The omission of an instruction on the prosecution’s burden of proof beyond a reasonable doubt is, in Chief Justice Rehnquist’s words, a ‘classic “trial error[.]” ’ [Citation.] Nevertheless, it requires automatic reversal. [Citation.]9 By contrast, the denial of a criminal defendant’s right to be personally present at his own trial is surely as much a ‘structural defect’ as the denial of his right to represent himself. Indeed, it would ‘strain[] credulity’ to assert otherwise. [Citation.] All the same, denial of the right of personal presence is deemed subject to harmless-error analysis. [Citation.]

“Perhaps more important, the distinction is ‘meaningless.’ [Citation.] Chief Justice Rehnquist ‘never clearly articulates the structure that the structural errors undermine.’ [Citation.] In fact, he never articulates that ‘structure’ at all.” (People v. Cahill, supra, 5 Cal.4th at pp. 547-548 (dis. opn. of Mosk, J.).)

Footnote 9 states: “The giving of a reasonable-doubt instruction that is merely ‘deficient’ under the United States Constitution is arguably an even more ‘classic “trial error.” ’ Yet in Sullivan v. Louisiana (1993) [508] U.S. [275, 278-282 [ 124 L.Ed.2d 182, 188-191 , 113 S.Ct. 2078 ]], the United States Supreme Court unanimously held that it requires automatic reversal. Chief Justice Rehnquist concurred in the opinion of the court. Writing separately, he made a transparently unsuccessful attempt to square his vote with the ‘trial error/structural defect’ distinction he had earlier created in Fulminante . [Citation.] His failure demonstrates that the distinction is specious.” (People v. Cahill, supra, 5 Cal.4th at p. 548, fn. 9 (dis. opn. of Mosk, J.).)

Citing U.S. v. North (D.C. Cir. 1990) 910 F.2d 843, 893 , opinion withdrawn and superseded in other part on rehearing, 920 F.2d 940 , the majority assert that the United States Supreme Court “never has held that an erroneous instruction affecting a single element of a crime will amount to structural error . . . .” (Maj. opn., ante, at p. 503, italics added.) North is curious support, inasmuch as it predates Chief Justice Rehnquist’s fabrication of the distinction between “structural” and “trial” defects or errors in his opinion in Fulminante .

On remand, over a dissent, the Ninth Circuit affirmed: “We hold that the erroneous jury instruction in this case neither substantially nor injuriously influenced the jury’s verdict, and was thus harmless under Brecht and O’Neal.” {Roy v. Gomez (9th Cir. 1997) 108 F.3d 242, 243 (in bank).)

See Rogers v. United States (1998) 522 U.S. 252 [ 118 S.Ct. 673 , 139 L.Ed.2d 686 ], There, having granted a petition for writ of certiorari in order to decide whether, on direct review of a federal criminal judgment, an instructional omission of an element of a crime is automatically reversible when the defendant admitted the element at trial, the United States Supreme Court dismissed the writ as improvidently granted on the ground that the question was not “fairly” (id. at p__[ 118 S.Ct. at p. 675 ] (plur. opn.)) or “cleanly” (id. at p__[ 118 S.Ct. at p. 677 ] (cone. opn. of O’Connor, J.)) presented.

As to the views expressed by my colleagues in their separate opinions, I note as follows. I disagree with Justice Chin that the “jury could not possibly find what it actually did find without also finding” the omitted peace officer element of the crime of willful flight from a peace officer. (Cone. opn. of Chin, J., ante, at p. 521, italics in original.) As I explain in the text, the jury did not find “predicate facts” that might be said to underlie the “ultimate fact” of the omitted element. Nor could it have done so. As I also explain in the text, there was no evidence whatsoever on the underlying question whether Officer Bridgeman and Officer Gurney had been “appointed by the chief of police or the chief executive of the agency.” (Pen. Code, § 830.1, subd. (a).) By contrast, I agree with much of what Justice Werdegar has written, even though she concurs in the judgment and I do not. But, as I set out in the text, the Cantrell-Thomton exception is neither viable nor available. Finally, I agree with even more of what Justice Kennard has written, joining her in dissent. Nevertheless, I part company with her when she states: “Omitting an element from the jury’s consideration is not the sort of error that “deifies] analysis by ‘harmless error’ standards.” ’ (Sullivan v. Louisiana [(1993)] 508 U.S. 275, 281 [ 113 S.Ct. 2078, 2082-2083 , 124 L.Ed.2d 182 ], quoting Arizona v. Fulminante (1991) 499 U.S. 279, 309 [ 111 S.Ct. 1246, 1249-1250 , 113 L.Ed.2d 302 ].)” (Dis. opn. of Kennard, J., post, at p. 557, fn. 3.) Sullivan does indeed quote the indicated language from Fulminante . But, as I demonstrate in the text, it does not support in its holding the proposition for which it is apparently cited. Indeed, in its reasoning it supports the contradictory. I also part company with her as to any need for guidance from the United States Supreme Court. I repeat: “We are under a solemn obligation to interpret and implement the United States Constitution. We are no less capable of discharging that duty than any other *548 court.” (People v. Harris, supra, 9 Cal.4th at p. 449, fn. 1 (cone. & dis. opn. of Mosk, J.).) I add: “We ‘should disabuse [ourselves] of the notion that in matters of constitutional law and criminal procedure we must always play Ginger Rogers to the high court’s Fred Astaire— always following, never leading.’ ” (Ibid., quoting People v. Cahill, supra, 5 Gal.4th at pp. 557-558 (dis. opn. of Kennard, J.).)

Because of the result that I reach, I need not determine whether the superior court’s instructional omission of the peace officer element of the crime of willful flight from a peace officer is erroneous and automatically reversible under the California Constitution. The less said about Cahill the better. Unless what is said is “overruled.”