What is the legal test for instructing a jury on the elements of theft by larceny?

"The trial court must instruct even without request on the general principles of law relevant to and governing the case. [Citation.] That obligation includes instructions on all of the elements of a charged offense. [Citation.]" (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) "Under state law, instructional error that withdraws an element of a crime from the jury's consideration is harmless if there is 'no reasonable probability that the outcome of defendant's trial would have been different had the trial court properly instructed the jury.' [Citations.] Under federal law, the 'Fifth Amendment right to due process and Sixth Amendment right to jury trial . . . require the prosecution to prove to a jury beyond a reasonable doubt every element of a crime.' [Citations.] Accordingly, a trial court's failure to instruct on an element of a crime is federal constitutional error that requires reversal of the conviction unless it can be shown beyond

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a reasonable doubt that the error did not contribute to the jury's verdict. [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1208-1209, citing Chapman v. California (1967) 386 U.S. 18, 24.)

The jury convicted defendant after being instructed, pursuant to CALCRIM No. 1800, on the elements of theft by larceny; that is, that defendant was guilty if jurors found that defendant took and moved the victim's property without her consent, and with the intent to permanently deprive her of the property.⁷ (Pen. Code, 484; People v. Catley (2007) 148 Cal.App.4th 500, 505.) Theft committed when property is "taken from the person of another" is grand theft (Pen. Code, 487, subd. (c)), the only possible form of grand theft at issue here.⁸ Defendant is correct that the trial court erred when it did not instruct the jury pursuant to CALCRIM No. 1801, which directs the jury to decide whether petty theft or grand theft was committed. It also provides that a defendant who has committed a theft is guilty of grand theft if the following additional element is proven: "Theft of property from the person is grand theft, no matter how much the property is worth. Theft is from the person if the property taken was in the clothing of, on the body of, or in a container held or carried by, that person." (Italics omitted.)

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