California, United States of America
The following excerpt is from People v. French, B250765 (Cal. App. 2015):
The erroneous failure to instruct on one or more elements of a crime is deemed harmless when a reviewing court, after conducting a thorough review of the record, "concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence." (Neder v. United States (1999) 527 U.S. 1, 17
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[119 S.Ct. 1827] (Neder).) "Neder instructs us to 'conduct a thorough examination of the record. If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the errorfor example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary findingit should not find the error harmless.' [Citation.] On the other hand, instructional error is harmless 'where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence.' [Citations.] Our task, then, is to determine 'whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.' [Citations.]" (People v. Mil (2012) 53 Cal.4th 400, 417.)
c. The conflicting motive instructions were not harmless beyond a reasonable doubt
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