What reversible error test must apply to a failure to instruct concerning a single element of an offense in this case?

California, United States of America


The following excerpt is from People v. Avila, 35 Cal.App.4th 642, 43 Cal.Rptr.2d 853 (Cal. App. 1995):

We now address the question of what reversible error test we must apply to the failure to instruct concerning a single element of an offense in this case. Citing the California Supreme decision in People v. Cummings, supra, 4 Cal.4th at pages 1311-1315, 18 Cal.Rptr.2d 796, 850 P.2d 1, defendant argues we must apply the reversible per se test to the present federal constitutional error. The Attorney General contends we must apply the harmless error test set forth in Chapman v. California, supra, 386 U.S. at pages 22-24, 87 S.Ct. at pages 827-28. Because the present case does not involve a structural error which withdrew "from jury consideration substantially all of the elements of an offense" (People v. Cummings, supra, 4 Cal.4th at p. 1315, 18 Cal.Rptr.2d 796, 850 P.2d 1), we apply the Chapman standard of review for the following reasons.

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