If a jury is instructed to convict a defendant of robbery based solely on the taking of items from the victim's person, is this instructional error inconsequential or prejudicial?

If the jury based its robbery verdict on the taking of the victim's wallet, for example, the instructional error would be inconsequential. The wallet was taken from the victim's person, and because robbery may be committed by a taking from either the person or the immediate presence of the victim, the jury would never have occasion to apply the definition of "immediate presence" if it based its verdict entirely upon a taking from the victim's person. On the other hand, if the jury based its robbery verdict on the thefts from the victim's residence, the instructional error would most likely be prejudicial. These thefts did not consist in the taking of items from the victim's person, and whether the items were taken from the victim's immediate presence presented a factual issue for the jury. (See People v. Hayes, supra, 52 Cal.3d 577, 628-629, 276 Cal.Rptr. 874, 802 P.2d 376.) Because the jury presumably would have used the erroneous "immediate presence" instruction to decide this issue, it would have proceeded by asking the wrong questions and would never have made the required factual determination.