omitted instruction in California

2023(See, e.g., People v. Sedeño (1974) 10 Cal.3d 703, 721 [failure to give instruction is not prejudicial where “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions”].) 5 In light of this express finding, I think it unnecessary to speculate on differences between the current version of the special circumstance statute and earlier versions in terms of the temporal connection between the lying in wait and the actual killing.

2018Under Sedeno , the only way to demonstrate harmlessness of the failure to instruct on lesser included offenses was to show that the "factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions." ( Id. at p. 721, 112 Cal.Rptr. 1 , 518 P.2d 913 .) But we have since clarified that Watson applies to the failure to instruct on lesser included offenses. ( Breverman , supra , 19 Cal.4th at pp. 175-176, 77 Cal.Rptr.2d 870 , 960 P.2d 1094 .) Under Watson , the error is harmless unless there is a reasonable probability of

1998Relying 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, 160 Cal.Rptr. 84 , 603 P.2d 1 , "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.

1998Relying 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, 160 Cal.Rptr. 84 , 603 P.2d 1 , "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.

2026(People v. Breverman (1998) 19 Cal.4th 142 , 177–178; Watson, 46 Cal.2d at p. 836 .) “ ‘ “[I]n some circumstances it is possible to determine that although an instruction on a lesser included offense was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.

2026“Substantial evidence is ‘evidence sufficient for a reasonable jury to find in favor of the defendant.’ ” (James, supra, 238 Cal.App.4th at p. 804 .) Assuming without deciding that the evidence met this standard for both of Garcia’s theories for the defense, we agree with the People that any error was harmless.9 “The absence of an instruction on a defense is not prejudicial if ‘ “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.” ’ ” (People v. Gana (2015) 236 Cal.App.4th 598, 610 .) Put another w

2026“Substantial evidence is ‘evidence sufficient for a reasonable jury to find in favor of the defendant.’ ” (James, supra, 238 Cal.App.4th at p. 804 .) Assuming without deciding that the evidence met this standard for both of Garcia’s theories for the defense, we agree with the People that any error was harmless.9 “The absence of an instruction on a defense is not prejudicial if ‘ “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.” ’ ” (People v. Gana (2015) 236 Cal.App.4th 598, 610 .) Put another w

2025(Chapman v. California (1967) 386 U.S. 18, 24 [federal constitutional error is reversible unless it was harmless beyond a reasonable doubt]; accord, People v. Schuller (2023) 15 Cal.5th 237 , 244 [Chapman requires reversal unless the court concludes no rational juror could have had reasonable doubt regarding the findings necessary to convict absent the instructional error]; Watson, supra, 46 Cal.2d at p. 837 [state law error is reversible if it is reasonably probable that the 15 defendant would have obtained a more favorable result without the error].) The failure to give a jury instruction is

2025(See People v. Turner (1990) 50 Cal.3d 668, 690 [“erroneous 11 failure to instruct on a lesser included offense is not prejudicial if ‘it is possible to determine that . . . the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions’ ”].) Having credited Fae’s testimony about the underlying events, it is not reasonably probable that the jury would then conclude Fae was lying when she testified that she was afraid after hearing the voice message, and testified that she feared it might be her husband who was

2023(See People v. Turner (1990) 50 Cal.3d 668, 690 [“erroneous failure to instruct on a lesser included offense is not prejudicial if ‘it is possible to determine that . . . the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions’ ”].) Having credited Fae’s testimony about the underlying events, it is not reasonably probable that the jury would then conclude Fae was lying when she testified that she was afraid after hearing the voice message, and testified that she feared it might be her husband who was com

1986If you find the defendant guilty of unlawful sexual intercourse, you shall recommend by your verdict whether the punishment shall be by imprisonment in the county jail, which would make the crime a misdemeanor, or in the state prison, which would make the crime a felony.” 6 These exceptions were summarized in People v. Ramos (1984) 37 Cal.3d 136 [ 207 Cal.Rptr. 800 , 689 P.2d 430 ]: “(1) ‘“if the erroneous instruction was given in connection with an offense for which the defendant was acquitted and if the instruction had no bearing on the offense for which he was convicted,’” [citation], (2) ‘

1986If you find the defendant guilty of unlawful sexual intercourse, you shall recommend by your verdict whether the punishment shall be by imprisonment in the county jail, which would make the crime a misdemeanor, or in the state prison, which would make the crime a felony.” 6 These exceptions were summarized in People v. Ramos (1984) 37 Cal.3d 136 [ 207 Cal.Rptr. 800 , 689 P.2d 430 ]: “(1) ‘“if the erroneous instruction was given in connection with an offense for which the defendant was acquitted and if the instruction had no bearing on the offense for which he was convicted,’” [citation], (2) ‘

1994The plurality had then gone on to identify as exceptions to the general rule of reversal per se cases in which the defendant had “conceded the issue of intent,” and cases in which “. . . the erroneous instruction was given in connection with an offense for which the defendant was acquitted” and “had no bearing on the offense for which he was convicted.” (Id., at p. 87 [ 74 L.Ed.2d at p. 834 ].) *1357 The Garcia court evaluated in light of Johnson two additional exceptions to the rule found in California case law: where “ ‘the factual question posed by the omitted instruction was necessarily re

1986The first two exceptions were derived from Connecticut v. Johnson (1983) 460 U.S. 73, 87 [ 74 L.Ed.2d 823, 834 , 103 S.Ct. 969 ]: “[1] ‘if the erroneous instruction was given in connection with an offense for which the defendant was acquitted and if the instruction had no bearing on the offense for which he was convicted,’ and [2] ‘if the defendant conceded the issue of intent.’” (36 Cal.3d at pp. 554-555.) The remaining two exceptions were derived from prior California Supreme Court decisions: “[3] if ‘“the factual question posed by the omitted instruction was necessarily resolved adversely t

2025In 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 . . . .’ ” (People v. Wright (2006) 40 Cal.4th 81, 98 ; accord, People v. Lujano (2017) 15 Cal.App.5th 187 , 195–196 [“Omission of an instruction is harmless beyond a reasonable doubt if ‘ “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.” ’ ”].) Boyer is again instructive.

2025(See People v. Wright (2006) 40 Cal.4th 81, 98 [instructional error harmless beyond a reasonable doubt where “ ‘the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions’ ”].) Moreover, even if the jury had potentially relied on the implied-malice portion of former CALCRIM No. 520, the omission of the “high degree of probability of death” language was patently harmless in light of the evidence at trial.

2016Any failure to instruct on this allegation is harmless where the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. ( *983 People v. Flood (1998) 18 Cal.4th 470 , 484, 76 Cal.Rptr.2d 180 , 957 P.2d 869 ; People v. Stewart (1976) 16 Cal.3d 133 , 141, 127 Cal.Rptr. 117 , 544 P.2d 1317 .) Conclusion Appellant makes no showing that the purported errors, whether considered individually or collectively, deprived him of a fair trial.

2016Any failure to instruct on this allegation is harmless where the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. ( *983 People v. Flood (1998) 18 Cal.4th 470 , 484, 76 Cal.Rptr.2d 180 , 957 P.2d 869 ; People v. Stewart (1976) 16 Cal.3d 133 , 141, 127 Cal.Rptr. 117 , 544 P.2d 1317 .) Conclusion Appellant makes no showing that the purported errors, whether considered individually or collectively, deprived him of a fair trial.

2025(People v. Rogers (2006) 39 Cal.4th 826 , 867–868, citing People v. Watson (1956) 46 Cal.2d 818 .) If “it can be determined that the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions,” reversal is not required even if the trial court erred in failing to give the instruction.

2020“Reversal is required only if it is reasonably probable the jury would have returned a different verdict absent the error or errors complained of.” (People v. Rogers (2006) 6 39 Cal.4th 826, 868 .) Moreover, omission of an instruction is harmless beyond a reasonable doubt if the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.

1988We concluded that indications from the high court suggested such error would be reversible per se in the absence of facts supporting application of one or more of four limited exceptions: (i) If the erroneous instruction was given in connection with an offense of which the defendant was acquitted and had no bearing on the offense of which he was convicted; (ii) If the defendant conceded the issue; (iii) If the factual issue posed by the omitted instruction was necessarily resolved adversely to the defendant under other properly given instructions (the “Sedeño” exception (People v. Sedeno (1974

1988We concluded that indications from the high court suggested such error would be reversible per se in the absence of facts supporting application of one or more of four limited exceptions: (i) If the erroneous instruction was given in connection with an offense of which the defendant was acquitted and had no bearing on the offense of which he was convicted; (ii) If the defendant conceded the issue; (iii) If the factual issue posed by the omitted instruction was necessarily resolved adversely to the defendant under other properly given instructions (the “Sedeño” exception (People v. Sedeno (1974

1997Defendant cites dicta in People v. Wickersham (1982) 32 Cal.3d 307 [ 185 Cal.Rptr. 436 , 650 P.2d 311 ] (Wickersham) and Johnson, supra, 6 Cal.4th 1 , to support his claim that the omitted instruction concerns a defense to a crime and the court must give it whenever any evidence in the record supports such a theory.

1997Defendant cites dicta in People v. Wickersham (1982) 32 Cal.3d 307 [ 185 Cal.Rptr. 436 , 650 P.2d 311 ] (Wickersham) and Johnson, supra, 6 Cal.4th 1 , to support his claim that the omitted instruction concerns a defense to a crime and the court must give it whenever any evidence in the record supports such a theory.

2016Although mandatory, failure to give an instruction similar to Penal Code section 1127b is not prejudicial error “unless the reviewing court, upon an examination of the entire cause, determines that the jury might have rendered a different verdict had the omitted instruction been given.” (People v. Lynch (1971) 14 Cal.App.3d 602, 610 (Lynch).) This argument arrives in a unique form.

2016(People v. Lynch (1971) 14 Cal.App.3d 602, 609 ["Although Penal Code section 1127b is mandatory when the opinion of an expert witness is received in evidence, and the trial court in this case did not give the instruction, prejudicial error did not occur."].) Here, assuming, without deciding, that Officer Pajita gave expert opinion testimony and the court erred by failing to instruct sua sponte under CALCRIM No. 332, as Palmer contends, we conclude any such error was harmless under the applicable Watson harmless error standard because Palmer has failed to show there is a reasonable probability

1978Accordingly, the instructional omission in the instant case can only be declared nonprejudicial if the factual question posed by the omitted instruction (i.e., whether defendant knew he was involved in the accident) was resolved adversely to defendant under other, properly given instructions. {People v. Stewart (1976) 16 Cal.3d 133, 141 [ 127 Cal.Rptr. 117 , 544 P.2d 1317 ]; People v. Mayberry (1975) 15 Cal.3d 143, 158 [ 125 Cal.Rptr. 745 , 542 P.2d 1337 ]; People v. Sedeno, supra, 10 Cal.3d703, 721.) In the typical felony hit-and-run driving case, where there is an actual collision between th

1978Accordingly, the instructional omission in the instant case can only be declared nonprejudicial if the factual question posed by the omitted instruction (i.e., whether defendant knew he was involved in the accident) was resolved adversely to defendant under other, properly given instructions. {People v. Stewart (1976) 16 Cal.3d 133, 141 [ 127 Cal.Rptr. 117 , 544 P.2d 1317 ]; People v. Mayberry (1975) 15 Cal.3d 143, 158 [ 125 Cal.Rptr. 745 , 542 P.2d 1337 ]; People v. Sedeno, supra, 10 Cal.3d703, 721.) In the typical felony hit-and-run driving case, where there is an actual collision between th

2024(See People v. Mesa (2006) 144 Cal.App.4th 1000 , 1007–1010 [applying 10 15 Cal.App.5th at pp. 195–196 [“Omission of an instruction is harmless beyond a reasonable doubt if ‘ “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions” ’ ”]; Braslaw, supra, 233 Cal.App.4th at p. 1246 [“the fourth element of the crime of rape of an intoxicated person necessarily addressed the defense of a reasonable mistake of fact as to whether the victim was too intoxicated to consent”].) 3.

2024(See People v. Mesa (2006) 144 Cal.App.4th 1000 , 1007–1010 [applying 10 15 Cal.App.5th at pp. 195–196 [“Omission of an instruction is harmless beyond a reasonable doubt if ‘ “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions” ’ ”]; Braslaw, supra, 233 Cal.App.4th at p. 1246 [“the fourth element of the crime of rape of an intoxicated person necessarily addressed the defense of a reasonable mistake of fact as to whether the victim was too intoxicated to consent”].) 3.

2026(People v. Breverman (1998) 19 Cal.4th 142 , 177–178; Watson, 46 Cal.2d at p. 836 .) “ ‘ “[I]n some circumstances it is possible to determine that although an instruction on a lesser included offense was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.

2023VI, § 13; People 8. v. Breverman (1998) 19 Cal.4th 142, 165, 173 ; People v. Mayo (2006) 140 Cal.App.4th 535, 538-539, 541, 543-549 .) No such possibility is established in the record before us, as the arguments of all counsel (the prosecutor and both defense attorneys) reinforced that the guilt of each defendant had to be separately determined and the court provided the jury with separate verdict forms for Solorio, as well as instructions to consider “whether either defendant is guilty of first degree murder.” Under these circumstances, it is not reasonably probable that the jury would have f

1994The plurality had then gone on to identify as exceptions to the general rule of reversal per se cases in which the defendant had “conceded the issue of intent,” and cases in which “. . . the erroneous instruction was given in connection with an offense for which the defendant was acquitted” and “had no bearing on the offense for which he was convicted.” (Id., at p. 87 [ 74 L.Ed.2d at p. 834 ].) *1357 The Garcia court evaluated in light of Johnson two additional exceptions to the rule found in California case law: where “ ‘the factual question posed by the omitted instruction was necessarily re

1985(People v. Garcia, supra, 36 Cal.3d 539, 549-554 .) *460 Garcia recognizes four exceptions to this rule, two based on Connecticut v. Johnson, supra, 460 U.S. 73 , would allow affirmance “ ‘if the erroneous instruction was given in connection with an offense for which the defendant was acquitted and if the instruction had no bearing on the offense for which he was convicted’ and ‘if the defendant conceded the issue of intent.’” (People v. Garcia, supra, 36 Cal.3d 539, 554 .) “The third exception is based on People v. Sedeno (1974) 10 Cal.3d 703 , 721 . . ., and provides that the failure to give

2025(See People v. Elliot (2005) 37 Cal.4th 453, 475 [“ ‘ “In some circumstances it is possible to determine that although an instruction on a lesser included offense was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant . . . .

2006In these circumstances, the factual question posed by the omitted instruction on the lesser included offense has not been "resolved in another context" by the jury. ( People v. Elliot, supra, 37 Cal.4th at p. 475 , 35 Cal.Rptr.3d 759 , 122 P.3d 968 .) Otherwise, the rule *702 requiring instructions on lesser included offenses in this or similar circumstances would be effectively eviscerated.

1988We concluded that indications from the high court suggested such error would be reversible per se in the absence of facts supporting application of one or more of four limited exceptions: (i) If the erroneous instruction was given in connection with an offense of which the defendant was acquitted and had no bearing on the offense of which he was convicted; (ii) If the defendant conceded the issue; (iii) If the factual issue posed by the omitted instruction was necessarily resolved adversely to the defendant under other properly given instructions (the “Sedeño” exception (People v. Sedeno (1974

1988We concluded that indications from the high court suggested such error would be reversible per se in the absence of facts supporting application of one or more of four limited exceptions: (i) If the erroneous instruction was given in connection with an offense of which the defendant was acquitted and had no bearing on the offense of which he was convicted; (ii) If the defendant conceded the issue; (iii) If the factual issue posed by the omitted instruction was necessarily resolved adversely to the defendant under other properly given instructions (the “Sedeño” exception (People v. Sedeno (1974

2025In 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 . . . .’ ” (People v. Wright (2006) 40 Cal.4th 81, 98 ; accord, People v. Lujano (2017) 15 Cal.App.5th 187 , 195–196 [“Omission of an instruction is harmless beyond a reasonable doubt if ‘ “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.” ’ ”].) Boyer is again instructive.

2024In 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 . . . .’ ” (People v. Wright (2006) 40 Cal.4th 81, 98 ; accord, People v. Lujano (2017) 15 Cal.App.5th 187, 195-196 [“Omission of an instruction is harmless beyond a reasonable doubt if ‘ “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions” ’ ”].) IV.

2021Thus, the jury 12 “necessarily found any belief by defendant that the victim had capacity to consent was unreasonable.” (People v. Braslaw (2015) 233 Cal.App.4th 1239, 1246 [finding “that the defendant reasonably should have known the victim could not resist (i.e., give consent)” under standard CALCRIM No. 1002 instruction “meant the jury could not also have found, as a matter of logic, that the defendant had a reasonable belief the victim was capable of giving consent”]; People v. Ramirez (2006) 143 Cal.App.4th 1512, 1529 [“A belief that the victim was able to resist could not be reasonable i

2015(Ibid.; see People v. Giardino, supra, 82 Cal.App.4th at p. 472 [equating what are essentially the bracketed portion of CALCRIM No. 1002 and the fourth element referenced in that instruction]; see also People v. Carrillo (2008) 163 Cal.App.4th 1028, 1038 [78 Cal.Rtpr.3d 138] [no prejudicial error if the jury necessarily resolved, under other instructions actually given, the issue that would have been raised by an omitted instruction].) Although defendant here requested the optional “actual and reasonable belief” language in CALCRIM No. 1002, and not the general mistake-of-fact instruction, thi

2021(Flood, at p. 504.) In resolving this issue, we consider the entirety of the instructions as a whole and counsel’s closing arguments to determine whether “the factual question posed by the omitted instruction necessarily was resolved adversely to the defendant under other, properly given instructions.” (Id. at p. 485; People v. Cain (1995) 10 Cal.4th 1, 35-37 .) There is no prejudice under Chapman when “the omitted 11 element was uncontested and supported by overwhelming evidence.” (Neder v. United States (1999) 527 U.S. 1, 17 [ 144 L.Ed.2d 35, 52 ].) For the purposes of felony murder, “ ‘[t]h

2013(Flood, at p. 504.) “„Under that test, an error is harmless only when, beyond a reasonable doubt, it did not contribute to the verdict.‟” (People v. Jones, supra, 30 Cal.4th at p. 1119 .) Our Supreme Court has held that “„error in failing to instruct that a special circumstance contains a requirement of the intent to kill is harmless [beyond a reasonable doubt] when “the evidence of defendant‟s intent to kill . . . was overwhelming, and the jury could have had no reasonable doubt on that matter.”‟” (People v. Marshall (1997) 15 Cal.4th 1, 42 .) In determining whether instructional error was ha

1988Reversal is not required because of a reasonable probability that in the absence of the error the jury would have reached a different verdict [citation], but because the defendant has a constitutional right to have the jury determine every material issue presented by the evidence." ( People v. Modesto, supra, 59 Cal.2d at p. 730 .) (5) Thus, the error may not be cured by the appellate court "weighing the evidence and finding it is not reasonably probable that a correctly instructed jury would have found the defendant guilty. [Citation.]" ( People v. Rivera (1984) 157 Cal. App.3d 736, 743 [ 203

1988Reversal is not required because of a reasonable probability that in the absence of the error the jury would have reached a different verdict [citation], but because the defendant has a constitutional right to have the jury determine every material issue presented by the evidence.” (People v. Modesto, supra, 59 Cal.2d at p. 730 .) Thus, the error may not be cured by the appellate court “weighing the evidence and finding it is not reasonably probable that a correctly instructed jury would have found the defendant guilty. [Citation.]” (People v. Rivera (1984) 157 Cal.App.3d 736, 743 [ 203 Cal.Rp

2015The Supreme Court upheld these 2 We note that appellant relies on People v. Ramkeesoon (1985) 39 Cal.3d 346 (Ramkeesoon) to argue that an erroneous failure to instruct on a lesser included offense “requires reversal unless it can be determined that the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.” (Id. at pp. 351-352.) The court in Ramkeesoon is applying the reversibility standard set forth in People v. Sedeno (1974) 10 Cal.3d 703 (Sedeno).

1994Since there was evidence that defendant was guilty only of theft rather than robbery, the court had a sua sponte duty to instruct on theft as a lesser included offense. [Citing People v. Turner (1990) 50 Cal.3d 668, 690 [ 268 Cal. Rptr. 706 , 789 P.2d 887 ]; People v. Ramkeesoon, supra, 39 Cal.3d at p. 351 .] ... *530 "The error was prejudicial as to the robbery count and the robbery special circumstance. `An error in failing to instruct on lesser included offenses requires reversal unless it can be determined that the factual question posed by the omitted instruction was necessarily resolved

2016Any failure to instruct on this allegation is harmless where the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. ( *983 People v. Flood (1998) 18 Cal.4th 470 , 484, 76 Cal.Rptr.2d 180 , 957 P.2d 869 ; People v. Stewart (1976) 16 Cal.3d 133 , 141, 127 Cal.Rptr. 117 , 544 P.2d 1317 .) Conclusion Appellant makes no showing that the purported errors, whether considered individually or collectively, deprived him of a fair trial.

2016Any failure to instruct on this allegation is harmless where the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. ( *983 People v. Flood (1998) 18 Cal.4th 470 , 484, 76 Cal.Rptr.2d 180 , 957 P.2d 869 ; People v. Stewart (1976) 16 Cal.3d 133 , 141, 127 Cal.Rptr. 117 , 544 P.2d 1317 .) Conclusion Appellant makes no showing that the purported errors, whether considered individually or collectively, deprived him of a fair trial.

2015Regardless, the omission of a theft instruction was harmless, as “‘the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions’ [citation].” (People v. Prettyman (1996) 14 Cal.4th 248, 276 .) The jury was instructed with CALCRIM No. 1600 on the elements of robbery, including the following language: “[T]he defendant used [force] or fear to take the property or to prevent the person from resisting; and . . . when the defendant used force or fear to take the property, he intended to deprive the owner of it perm

2015Thus, “‘the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant 16 under other, properly given instructions’ [citation].” (People v. Prettyman (1996) 14 Cal.4th 248, 276 .)2 III.

2015(See People v. Maury (2003) 30 Cal.4th 342, 422 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ] [error harmless where although defendant was deprived of the complete defense he used the same evidence to mitigate crime]; People v. Lewis (2001) 25 Cal.4th 610, 646 [ 106 Cal.Rptr.2d 629 , 22 P.3d 392 ] [“failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant. . .”]; People v. Millwee (1998) 18 Cal.4th 96, 157 [ 74 Cal.Rptr.2d 418 , 954 P.2d 990 ] [“failure to instruct on a lesser in

2015(See People v. Maury (2003) 30 Cal.4th 342, 422 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ] [error harmless where although defendant was deprived of the complete defense he used the same evidence to mitigate crime]; People v. Lewis (2001) 25 Cal.4th 610, 646 [ 106 Cal.Rptr.2d 629 , 22 P.3d 392 ] [“failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant. . .”]; People v. Millwee (1998) 18 Cal.4th 96, 157 [ 74 Cal.Rptr.2d 418 , 954 P.2d 990 ] [“failure to instruct on a lesser in

2015(Wilkins, supra, 56 Cal.4th at p. 350 .) Applying the standard of prejudice applicable to federal constitutional error, we therefore examine " 'whether it appears " ' "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." ' " ' " (Ibid.) An instructional error is harmless beyond a reasonable doubt if " '[t]he factual question posed by the omitted instruction was necessarily resolved adversely to defendant under other, properly given instructions.' " (People v. Pulido (1997) 15 Cal.4th 713, 726 .) Here, as we will explain, the jury was instructed on

2015(Pulido, supra, 15 Cal.4th at p. 726 .) The factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under another instruction, the robbery-murder special-circumstance instruction.

2014A reviewing court considers ‘the specific language challenged, the instructions as a whole[,] the jury’s findings’ [citation], and counsel’s closing arguments to determine whether the instructional error ‘would have misled a reasonable jury . . .’ [citation].” (People v. Eid (2010) 187 Cal.App.4th 859, 883 .) c.

2013(Chapman v. California, supra, 386 U.S. at p. 24 .) "In determining whether instructional error was harmless, relevant inquiries are whether 'the factual question posed by the omitted instruction necessarily was resolved 45 adversely to the defendant under other, properly given instructions' [citation] and whether the 'defendant effectively conceded the issue.' [Citation.] A reviewing court considers 'the specific language challenged, the instructions as a whole[,] the jury's findings' [citation], and counsel's closing arguments to determine whether the instructional error 'would have misled a