What is the test for determining whether an error in omitting an element of a charged offense is harmless?
California, United States of America
The following excerpt is from People v. Bolanos, B293719 (Cal. App. 2019):
In determining whether the error in omitting an element of a charged offense was harmless, a reviewing court is 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.'" (People v. Mil (2012) 53 Cal.4th 400, 417, quoting
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Neder v. United States (1999) 527 U.S. 1, 17, 19; accord, People v. Aranda (2012) 55 Cal.4th 342, 367.)
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