What is the test for reversal of a finding that a judge made an instructional error in instructing a jury to find an element of the crime?

The instructional error here amounted to prohibited factfinding by the court and thus requires reversal. As the United States court explained in Cabana v. Bullock (1986) 474 U.S. 376, ----, 106 S.Ct. 689, 696, 88 L.Ed.2d 704: "Findings made by a judge cannot cure deficiencies in the jury's finding as to the guilt or innocence of a defendant resulting from the court's failure to instruct it to find an element of the crime."

Recently, in People v. Rodriguez (1986) 42 Cal.3d 1005, 1010, 232 Cal.Rptr. 132, 728 P.2d 202, our high court reminded us the "[a]pplication of the per se standard requiring

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