Opinion
Certified for Partial Publication
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of Parts I.E., Part II and Part III.
Review Granted July 8, 1998.
Previously published at 62 Cal.App.4th 1196
Ann Hopkins, under appointment by the Court of Appeal, Oakland, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Mathew Chan and Brian G. Smiley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DIBIASO, Acting Presiding Justice.
We address in the published portion of this opinion an issue of considerable current interest among the appellate courts of this state -- whether the "harmless beyond a reasonable doubt" standard of Chapman v. California may be applied to uphold a criminal conviction where the trial court failed to expressly instruct the jury about an essential element of the crime in issue. We hold that Chapman does not apply under the circumstances of this case because the record does not permit a finding that the instructional error was in fact harmless beyond a reasonable doubt.
Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.
Appellant John David Buchholz appeals from the judgment following his conviction, by jury verdict, of violating Health and Safety Code section 11353 (an adult furnishing a minor with a controlled substance; count 1), Health and Safety Code section 11377 (possession of a controlled substance; count 2), Penal Code section 647.6 (annoying and molesting a child; count 3), and Penal Code section 311.3 (sexual exploitation of a child; count 4). Defendant pled no contest to an additional charge of violating section 12020 (possession of a short-barreled shotgun; count 5). It is undisputed for purposes of appeal that defendant gave his 16-year old stepdaughter methamphetamine and took over two dozen photographs of the minor in provocative, if not pornographic, poses.
All statutory references are to the Penal Code unless otherwise indicated.
We will reverse the judgment with respect to the Health and Safety Code section 11353 conviction, affirm the convictions with respect to the remaining counts and vacate the DISCUSSION
I.
A.
The parties agree the trial court committed instructional error because it did not tell the jury that one of the elements of a violation of Health and Safety Code 11353 is the accused's majority. The trial court instructed the jury with respect to this offense as follows:
Health and Safety Code section 11353 in relevant part to this case provides:
"Defendant is accused in Count I of the information of having violated section 11353 of the Health and Safety Code, a crime.
"Every person who furnishes, administers, or gives away a controlled substance, namely, methamphetamine, to a minor, is guilty of a violation of section 11353 of the Health and Safety Code, a crime.
"In order to prove such crime, each of the following elements must be proved:
"One, a person furnished, administered and gave methamphetamine to another person under the age of 18 years; and
"Two, the first person had knowledge of its presence and nature as a controlled substance."
The law also prohibits one minor from furnishing another minor with a controlled substance. (Health s&sSaf.Code, § 11354.) However, the punishment for violating this latter statute is significantly less than that for a violation of Health and Safety Code section 11353. (Compare Healths&sSaf.Code, § 11354 and Pen.Code, § 18 with Healths&sSaf.Code, § 11353.)
Although otherwise tracking the language of CALJIC 12.10, this instruction omitted the element of the crime, as it is articulated in the CALJIC text, that the first person be "eighteen years of age [or older]." The accused's majority is a necessary element of the offense. (See People v. Montalvo (1971) 4 Cal.3d 328, 330, 333, 93 Cal.Rptr. 581, 482 P.2d 205 [former Healths&sSaf.Code, § 11502]; People v. Yoshimura (1979) 91 Cal.App.3d 609, 627, fn. 16, 154 Cal.Rptr. 314 [former Healths&sSaf.Code, § 11502 is the predecessor to § 11353].)
The failure to instruct on an essential element of the crime in issue is error of federal constitutional magnitude because it relieves the prosecution of its burden to prove all of the elements of the charged crime beyond a reasonable doubt and violates the defendant's Sixth Amendment right to have a jury trial on every element of the offense. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278, 113 S.Ct. 2078, 2080-2081, 124 L.Ed.2d 182; Montalvo, supra, 4 Cal.3d at p. 333, 93 Cal.Rptr. 581, 482 P.2d 205.) The question is, therefore, whether we may apply the "harmless beyond a reasonable doubt" standard of prejudice, as the Attorney General contends, or instead must reverse without any consideration of prejudice, as appellant contends. For the reasons given, we find the trial court's instructional error to be reversible per se.
B.
In Chapman v. California, supra, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, the United States Supreme Court adopted the general rule that constitutional error which occurs during a criminal action does not always require automatic reversal. (See also Sullivan v. Louisiana, supra, 508 U.S. 275, 278-279, 113 S.Ct. 2078, 2081; Arizona v. Fulminante (1991) 499 U.S. 279, 306, 111 S.Ct. 1246, 1263, 113 L.Ed.2d 302; Rose v. Clark (1986) 478 U.S. 570, 576, 106 S.Ct. 3101, 3105, 92 L.Ed.2d 460.) Thus, in some cases an otherwise valid conviction need not be set aside if the State can show "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman v. California, supra, 386 U.S. at p. 24, 87 S.Ct. at p. 828.) "The harmless error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence, [citation], and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674.)
Harmless error analysis presupposes a trial, at which the defendant, represented by counsel, may present evidence and argument before an impartial judge and jury. (Rose v. Clark, supra, 478 U.S. at p. 578, 106 S.Ct. at p. 3106.) The United States Supreme Court has applied the Chapman standard to instances of " 'trial error'--error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." (Arizona v. Fulminante, supra, 499 U.S. at pp. 307-308, 111 S.Ct. at p. 1264 [listing cases that have approved the harmless error approach].)
However, errors which necessarily render a trial fundamentally unfair require reversal without regard to the evidence in the particular case. (Rose v. Clark, supra, 478 U.S. 570, 577, 106 S.Ct. 3101, 3105-3106.) Examples of such errors include the introduction of a coerced confession (Payne v. Arkansas (1958) 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975), the complete denial of the right to counsel (Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799), the adjudication by a biased judge (Tumey v. Ohio (1927) 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749), the unlawful exclusion of members of an accused's race from a grand jury (Vasquez v. Hillery (1986) 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598), the violation of the right to self-representation at trial (McKaskle v. Wiggins (1984) 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122), and the violation of the right to a public trial (Waller v. Georgia (1984) 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31). In Arizona v. Fulminante, supra, 499 U.S. at pages 309-310, 111 S.Ct. at page 1265, Chief Justice Rehnquist characterized this species of error as "structural defects in the constitution of the trial mechanism, which defy analysis by 'harmless error' standards."
Despite the wealth of its case law on the appropriate standard of review for federal constitutional error, the United States Supreme Court has yet to provide exact guidance when the error consists of, as here, the trial court's total failure to instruct on an essential element of the crime in issue. The Supreme Court has found the Chapman standard appropriate where an instruction contained an erroneous conclusive presumption (Carella v. California (1989) 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218), misstated an element of the offense (Pope v. Illinois (1987) 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439), misinformed the jury about an element containing a mandatory presumption (Yates v. Evatt (1991) 500 U.S. 391, 111 S.Ct. 1884, 114 L.Ed.2d 432), and included an erroneous burden-shifting presumption (Rose v. Clark, supra, 478 U.S. 570, 106 S.Ct. 3101). By contrast, the Supreme Court has found per se reversal compelled where the trial court gave an erroneous reasonable-doubt instruction. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 278-280, 113 S.Ct. at pp. 2080-2082.)
Recently, in U.S. v. Gaudin (1995) 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444, the Court confronted a trial court's failure to instruct on the materiality element of the crime of perjury. Although it found the omission erroneous, the Supreme Court did not discuss the applicable standard of review; this was apparently because the government did not raise the issue or did not contend the error was harmless beyond a reasonable doubt. (U.S. v. Gaudin, supra, 515 U.S. at p. 526, 115 S.Ct. at pp. 2321-2322, conc. opinion of C.J. Rehnquist.)
While we lack direct authority on the point, we believe the Supreme Court has by implication told us that an assessment of prejudice is improper in this case. In Sullivan v. Louisiana, supra, 508 U.S. 275, 113 S.Ct. 2078, the Court reflected that:
"[T]he question ... is not what effect the constitutional error might generally be expected " ... 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.)
Applied to the error in issue here, this passage, as we construe it, prohibits the use of a harmless error analysis on review of a trial court's failure to instruct on an element of the offense if nothing in the appellate record discloses with reasonable assurance the jury's actual consideration of the fact or facts which establish the element. We believe this extension of Sullivan is in harmony with those Supreme Court opinions that have sanctioned a Chapman inquiry with respect to various other forms of instructional error; in these cases the deficient instruction did not altogether remove the element in issue from the jury's deliberative process. For example, in Rose v. Clark, supra, 478 U.S. 570, 106 S.Ct. 3101, the trial court told the jury it must presume an element of the crime if the described predicate facts were found. The Supreme Court concluded nevertheless that a Chapman inquiry was authorized, because the jury was required to find the existence of the predicate facts beyond a reasonable doubt and because such facts were "'so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact, making those findings ... functionally equivalent to finding the element required to be presumed.' [Citations.]" (Sullivan v. Louisiana, supra, 508 U.S. at pp. 280-281, 113 S.Ct. at p. 2082, citing Rose v. Clark, supra, 478 U.S. at 580, 106 S.Ct. at 3107.) Under the circumstances, the Court was satisfied that a "reviewing court may thus be able to conclude that the presumption played no significant role in the finding of guilt beyond a reasonable doubt." (Sullivan, supra, at p. 281, 113 S.Ct. at p. 2082.) The court applied the same rationale in Yates v. Evatt, supra, 500 U.S. at page 402, 111 S.Ct. at page 1892, Carella v. California, supra, 491 U.S. at page 266, 109 S.Ct. at page 2421 and Pope v. Illinois, supra, 481 U.S. 497, 503, 107 S.Ct. 1918, 1922. (See also People v. Cummings (1993) 4 Cal.4th 1233, 1314, 18 Cal.Rptr.2d 796, 850 P.2d 1.)
By contrast, harmless error analysis is not possible where the instructions fail entirely to direct the jury to consider the fact or facts material to the existence of an element of the relevant crime. In this situation, there is no way for the reviewing court to determine whether the jurors found the missing element to have been proved beyond a reasonable doubt. The reviewing court can only speculate about what a reasonable jury would have done had it been told to measure the evidence presented by the prosecution against the legal standard set by the missing instruction. A finding by the reviewing court that the jury likely would have convicted had it been fully instructed would put the adjudication of the defendant's guilt in the hands of the "wrong entity." (Rose v. Clark, supra, 478 U.S. at p. 578, 106 S.Ct. at p. 3106.)
C.
To decide the instant case, however, we need not rely solely upon the inferences we have drawn from Sullivan v. Louisiana, supra, 508 U.S. at pp. 279-280, 113 S.Ct. at pp. 2081-2082, and other United States Supreme Court decisions. What is missing from the United States Reports may be found in the "Both this court and the United States Supreme Court have strongly implied that omitting to instruct on an element of an offense comes within the [reversible per se] category. (People v. Cummings [, supra,] 4 Cal.4th 1233, 1312-1315 [18 Cal.Rptr.2d 796, 850 P.2d 1]; see Rose v. Clark, supra, 478 U.S. at p. 580, fn. 8 [106 S.Ct. at p. 3107, fn. 8, 92 L.Ed.2d at p. 472, fn. 8]; see also Connecticut v. Johnson [ (1983) ] 460 U.S. 73, 95, fn. 3 [103 S.Ct. 969, 982, fn. 3, 74 L.Ed.2d 823, 840, fn. 3] (dis. opn. of Powell, J.).)" (People v. Kobrin, supra, 11 Cal.4th at p. 428, 45 Cal.Rptr.2d 895, 903 P.2d 1027; emphasis added.)
The court was unpersuaded that the instructional error was susceptible to a Chapman analysis because "the complete omission of an element inevitably affects the verdict both directly and adversely." (People v. Kobrin, supra, 11 Cal.4th at p. 428, 45 Cal.Rptr.2d 895, 903 P.2d 1027, citing Sullivan v. Louisiana, supra, 508 U.S. at p. 280, 113 S.Ct. at p. 2082 as well as Yates v. Evatt, supra, 500 U.S. at pp. 403-406, 111 S.Ct. at pp. 1893-1894 and Carella v. California, supra, 491 U.S. at pp. 266-267, 109 S.Ct. at p. 2421.)
"The circumstance here is more akin to the erroneous reasonable doubt instruction at issue in Sullivan v. Louisiana, supra, 508 U.S. 275 [113 S.Ct. 2078]. As a result of the misdirection, the jury necessarily premised its determination of guilt on a constitutionally deficient standard of proof. Accordingly, 'the entire premise of Chapman review is simply absent' 'because to hypothesize a guilty verdict that was never in fact rendered--no matter how inescapable the findings to support that verdict might be--would violate the jury-trial guarantee.' (Id. at pp. 279-280 [113 S.Ct. at pp. 2081-2082, 124 L.Ed.2d at p. 189].) Similarly in this case, the jury's findings on materiality were not merely imperfect, they were nonexistent due to the instructional omission. Thus, '[t]here is no object, so to speak, upon which harmless error scrutiny can operate.' (Id. at p. 280 [113 S.Ct. at p. 2082, 124 L.Ed.2d at p. 190].)" (People v. Kobrin, supra, 11 Cal.4th at p. 429, 45 Cal.Rptr.2d 895, 903 P.2d 1027, emphasis added.)
The court did not foreclose the possibility that under other conditions a harmless error examination might be sustainable with respect to the failure to instruct on an element of the crime. Thus, the court said in a footnote:
"Of course, harmless error analysis is still appropriate when, in the 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.' (People v. Sedeno (1974) 10 Cal.3d 703, 721 [112 Cal.Rptr. 1, 518 P.2d 913], disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12 [160 Cal.Rptr. 84, 603 P.2d 1].) In light of our findings on this record, we need not decide whether, and under what other circumstances, a reviewing court may determine the omission of instruction on an element was harmless beyond a reasonable doubt." (People v. Kobrin, supra, 11 Cal.4th at p. 428, fn. 8, 45 Cal.Rptr.2d 895, 903 P.2d 1027; emphasis added.)
The court then pointed out that there was no basis in the record by which to determine if and to what extent the jury's findings "Given the complete failure to instruct on materiality, i.e., to have the jury assess the evidence in relation to that element of the offense, a finding of harmless error would rest solely on conjecture, effectively substituting this court for the jury as the trier of fact." (People v. Kobrin, supra, 11 Cal.4th at p. 429, 45 Cal.Rptr.2d 895, 903 P.2d 1027, original emphasis.)
Because the defense in Kobrin did not concede the issue and because the instruction completely deprived the jury of the opportunity to consider materiality, the Supreme Court could not say beyond a reasonable doubt that the error had no effect on the jury's verdict. (People v. Kobrin, supra, 11 Cal.4th at p. 430, 45 Cal.Rptr.2d 895, 903 P.2d 1027.) We view Kobrin as holding that automatic reversal is required when there has been a failure to instruct on an element of the offense in issue and it is not possible to assess whether the factual question posed by the omitted instruction was in some manner decided, in substance or effect, adversely to the defendant under other, properly given instructions.
The Kobrin court also noted that the trial court's rejection of proffered defense evidence tending to undermine a finding of materiality operated to compound the problem posed by "an inquiry already impermissibly speculative under this standard." (People v. Kobrin, supra, 11 Cal.4th at p. 430, 45 Cal.Rptr.2d 895, 903 P.2d 1027.)
The Kobrin court's concluding statement that "[u]nder these circumstances, we cannot say beyond a reasonable doubt that the instruction had no effect on the jury's verdict ...." does not mean the court applied the Chapman standard. Read in the context of the entire opinion, the statement means that the court found the error reversible per se because it was not possible under the record to find it harmless beyond a reasonable doubt. The court did not point out in its opinion any instructions given by the trial court which required the jury to consider facts relevant to materiality. (People v. Kobrin, supra, 11 Cal.4th at p. 430, 45 Cal.Rptr.2d 895, 903 P.2d 1027.)
The circumstances before us do not permit such an assessment. The trial court did not tell the jurors they could convict appellant of a violation of Health and Safety Code section 11353 only if they found, in addition to the other elements listed in CALJIC No. 12.10, that he was more than 18 years of age at the relevant time. No other instructions were given under which the jury necessarily resolved the factual question of appellant's age against him. (See People v. Kobrin, supra, 11 Cal.4th at p. 428, fn. 8, 45 Cal.Rptr.2d 895, 903 P.2d 1027.) No other instructions required the jury to find, beyond a reasonable doubt, predicate facts so closely related to the ultimate fact of appellant's age as to constitute for all intents and purposes a finding he was older than 18. (See Rose v. Clark, supra, 478 U.S. 570, 580, 106 S.Ct. 3101.) Appellant's age at the time the charged crime was alleged to have been committed was simply not made relevant under the trial court's instructions to any issue presented for determination by the jury.
Moreover, no other basis exists outside the instructions for a finding that the error was harmless. (See Connecticut v. Johnson, supra, 460 U.S. 73, 87, 103 S.Ct. 969, 977-978) [the erroneous instruction did not bear on the offense for which the defendant was convicted]; see also People v. Garcia (1984) 36 Cal.3d 539, 554, 205 Cal.Rptr. 265, 684 P.2d 826 [the defendant conceded the element]; Connecticut v. Johnson, supra, 460 U.S. 73, 87, 103 S.Ct. 969, 977 [same]; see also People v. Harris (1994) 9 Cal.4th 407, 459, 37 Cal.Rptr.2d 200, 886 P.2d 1193 (conc.s&sdis. opn. of Kennard, J.; People v. Moore (1997) 59 Cal.App.4th 168, 185-186, fn. 18, 69 Cal.Rptr.2d 56.)
D.
We take no position about whether our conclusions are in conflict with the result in People v. Avila (1995) 35 Cal.App.4th 642, 43 Cal.Rptr.2d 853, in which the court held that instructional error consisting of the omission of an element (movement) of the crime (kidnapping) was harmless under the Chapman standard. In Avila, the entire case presented by the prosecution was based solely upon the testimony of the victim. Because the jury obviously believed this testimony with Also, we are not swayed by People v. Early (1997) 56 Cal.App.4th 753, 756-760, 65 Cal.Rptr.2d 527, which held that a harmless error analysis was proper where the trial court essentially directed a verdict on the element of " 'inhabited dwelling house' " in a first degree burglary prosecution. The Early court did not give any weight to People v. Kobrin, supra, 11 Cal.4th at page 428-429, 45 Cal.Rptr.2d 895, 903 P.2d 1027, and instead rested principally upon the United States Supreme Court's decision in Johnson v. U.S. (1997) 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718. Early concluded the error was harmless beyond a reasonable doubt because "no reasonable juror could find that the structure entered was anything other than an 'inhabited dwelling house.' " (Early, supra, 56 Cal.App.4th at p. 760, 65 Cal.Rptr.2d 527.)
The court in Early took the position that Kobrin "did not hold that [the error in issue] was reversible per se." (People v. Early, supra, 56 Cal.App.4th at p. 759, 65 Cal.Rptr.2d 527.) As support for this proposition, the Early court referred to the Supreme Court's statement in (Kobrin, at p. 428, fn. 8, 45 Cal.Rptr.2d 895, 903 P.2d 1027) that "[I]n light of our findings on this record, we need not decide whether, and under what other circumstances, a reviewing court may determine the omission of instruction on an element was harmless beyond a reasonable doubt." (Early at p. 759, 65 Cal.Rptr.2d 527.) We read Kobrin differently. As we construe it, the language from Kobrin and reiterated in Early is nothing more than an acknowledgement that there is no "bright line" standard of review applicable to the failure to instruct on an element of the crime. The reference in Kobrin to "our findings" appears to us to refer to the court's conclusion that the instructional error in issue was not subject to harmless error analysis.
Johnson was a case tried in the federal district court. It involved an instruction by the district judge which removed the element of materiality from the jury's consideration under a perjury charge. The defendant did not object to the omission from the instructions before the jury retired to deliberate. (Johnson v. U.S., supra, 520 U.S. at p. ----, 117 S.Ct. at p. 1547.) The United States Supreme Court affirmed the defendant's conviction of the crime, based upon Federal Rules of Criminal Procedure, rule 30 and rule 52(b), and the Supreme Court's interpretative opinion of Federal Rule 52(b) in United States v. Olano (1993) 507 U.S. 725, 732, 113 S.Ct. 1770, 1776-1777, 123 L.Ed.2d 508. Under rule 30, "[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." (Johnson v. U.S., supra, 520 U.S. at p. ----, 117 S.Ct. at p. 1548) Under rule 52(b), as explained in Olano, a federal appeals court need not "notice" an alleged but forfeited error unless there exists "(1) 'error,' (2) that is 'plain,' and (3) that 'affects[s] substantial rights' [and] (4) the error ' " 'seriously affect [s] the fairness, integrity, or public reputation of judicial proceedings.' " ' " (Johnson v. U.S., supra, 520 U.S. at pp. ----, 117 S.Ct. at pp. 1548-1549.) The United States Supreme Court decided that no " 'miscarriage of justice' " would result if it did not "notice" the error, because materiality was not controverted at trial or on appeal. (Id. at p. ----, 117 S.Ct. at p. 1550.) Nothing in Johnson suggests the jury, expressly or impliedly, found the element of materiality adversely to the defendant under other instructions given by the trial court.
Early analogized the situation before it to the situation in Johnson.
"In the present case, as in Johnson, the evidence was uncontroverted at trial, and is not challenged on this appeal, that the structure entered was an 'inhabited dwelling In our estimation, Johnson v. U.S., supra, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718, does not support the outcome in Early. If the Johnson court did in fact intend to hold what Early says it holds -- that Chapman applies to the failure to instruct on an element of the crime where there are no other instructions which required the jury to make an express or implied finding that established the existence of the missing element--then Johnson must be in absolute conflict with the Supreme Court's statement in Sullivan v. Louisiana that "[t]he 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, 508 U.S. at p. 280, 113 S.Ct. at p. 2082.) While this sort of disaccord is surely not without precedent in the decisions of the United States Supreme Court or other appellate courts (including this one), we refuse to believe the Supreme Court in Johnson intended to effectively overrule Sullivan--without mentioning it, by the way--and recast entirely the jurisprudence of the Sixth Amendment. (See Kobrin, supra, 11 Cal.4th at p. 428, 45 Cal.Rptr.2d 895, 903 P.2d 1027.)
Justice Scalia authored Sullivan; he concurred in Johnson to the extent the court found that Federal Rules of Criminal Procedure 52 was dispositive.
We read Johnson as implementing particular federal procedural principles, Federal Rules of Criminal Procedure, rule 30 and rule 52(b), which necessitate an analysis different than that relevant to a claimed violation of the Sixth Amendment arising out of a state court prosecution. (Johnson, 520 U.S. at p. ----, 117 S.Ct. at p. 1548.) The Supreme Court's response to the defendant's assertion that the error should be "noticed" because it was "structural" appears to confirm this view; the court said:
California's counterpart to Federal Rules of Criminal Procedure, rule 52 is Penal Code section 1259; it provides:
"Petitioner argues that she need not fall within the 'limited' and 'circumscribed' strictures of Olano, because the error she complains of here is 'structural,' and so is outside Rule 52(b) altogether. But the seriousness of the error claimed does not remove consideration of it from the ambit of the Federal Rules of Criminal Procedure. None of the cases discussing 'structural error,' upon which petitioner relies, were direct appeals from judgments of conviction in the federal system. Several came from state courts which had considered the claimed error under their own rules. See Gideon v. Wainwright [, supra,] (1963) 372 U.S. 335 [83 S.Ct. 792]; We therefore cannot go along with Early; we think the determination that "no reasonable juror could find that the structure entered was anything other than an 'inhabited dwelling house' " (People v. Early, supra, 56 Cal.App.4th at p. 760, 65 Cal.Rptr.2d 527) is nothing less than "appellate speculation about a hypothetical jury's action" and in effect sustained a directed verdict for the prosecution (Sullivan, supra, 508 U.S. at p. 280, 113 S.Ct. at p. 2082; see also Kobrin, supra, 11 Cal.4th at p. 429, 45 Cal.Rptr.2d 895, 903 P.2d 1027).
II.- III.**
DISPOSITION
The judgment of conviction and sentence with respect to count 1, a violation of Health and Safety Code section 11353, are reversed. The judgments of conviction as to all other counts are affirmed, but the sentences as to those other counts are vacated. The matter is remanded. If the People do not file and serve upon the trial court and defendant, within 20 days from the date remittitur issues from this court, a written notice of the People's intention to retry appellant on the charge alleged in count 1, the trial court shall forthwith resentence appellant. If the People do timely file and serve such written notice, the trial court shall sentence appellant at the appropriate time.
THAXTER and HARRIS, JJ., concur.
"Every person 18 years of age or over, ... who unlawfully sells, furnishes, administers, gives, or offers to sell, furnish, administer, or give, any such controlled substance to a minor, shall be punished by imprisonment in the state prison for a period of three, six, or nine years." (Emphasis added.)
"Upon an appeal taken by the defendant, the appellate court may, without exception having been taken in the trial court, review any question of law involved in any ruling, order, instruction, or thing whatsoever said or done at the trial or prior to or after judgment, which thing was said or done after objection made in and considered by the lower court, and which affected the substantial rights of the defendant. The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby."
A California version of Johnson is not likely to arise because of the sua sponte duty to instruct imposed upon this state's trial courts (see People v. Berryman (1993) 6 Cal.4th 1048, 1089, 25 Cal.Rptr.2d 867, 864 P.2d 40; People v. Sedeno, supra, 10 Cal.3d at p. 715, 112 Cal.Rptr. 1, 518 P.2d 913).
** See footnote *, ante.