What is the test for determining whether a robbery occurred within the immediate presence of the victim?

In this state, robbery is defined as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Pen.Code, 211.) Thus, one of the elements of robbery is that the personal property of the victim be taken either from the victim's person or from the victim's immediate presence. In People v. Hayes (1990) 52 Cal.3d 577, 626-628, 276 Cal.Rptr. 874, 802 P.2d 376, this court held that the term "immediate presence," as used in the definition of robbery, means that the property is " ' "so within [the victim's] reach, inspection, observation or control" ' " that the victim could have retained possession had the victim not been prevented or deterred from doing so by the perpetrator's use of force or fear.

This case was tried before this court's decision in People v. Hayes, supra, 52 Cal.3d 577, 276 Cal.Rptr. 874, 802 P.2d 376. Instructing the jury on the meaning of "immediate presence" as used in the definition of robbery, the trial court told the jury: "The act of robbery is deemed to have occurred within the immediate presence of a victim so long as the victim perceived any overt act connected with the commission of the offense. Any and all of the sensory perceptions of the victim are to be considered in determining presence." As this court explained in People v. Hayes, this instruction is erroneous because it deprives the term "immediate presence" of any independent meaning, making it duplicative of the "force or fear" element of robbery. (Id., 52 Cal.3d at pp. 627-628, 276 Cal.Rptr. 874, 802 P.2d 376.)

When a trial court, in instructions to the jury, incorrectly defines one of the elements

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To determine whether a verdict was "surely unattributable" to a trial error, the reviewing court ordinarily should first determine what evidence the jury actually considered in reaching its verdict by analyzing the trial evidence in light of the instructions, presuming that the jury considered relevant evidence when told it might do so. Next, the reviewing court must weigh the evidence properly considered against any tainted evidence or other improper jury influence resulting from the error. The conviction may be upheld only if this weighing process shows that the improper influence was "unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record." (Yates v. Evatt (1991) 500 U.S. 391, 403, 111 S.Ct. 1884, 1893, 114 L.Ed.2d 432.)