Opinion
WERDEGAR, J. In this case we decide what standard a reviewing court must apply when deciding whether a trial judge’s failure to instruct the jury as to the factual elements necessary to support a sentence enhancement for use of a deadly and dangerous weapon, under Penal Code section 12022, subdivision (b),1 is prejudicial. Section 12022(b) imposes an additional term of one year upon “[a]ny person who personally uses a deadly or dangerous weapon in the commission or attempted commission of a felony.”2 We conclude that failure to instruct the jury as to all of the elements of section 12022(b) is prejudicial only where it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) Applying that standard, we further conclude the trial court’s error in this case was not prejudicial as to either defendant Clifton C. Wims or as to defendant Wilbert Ford. Accordingly, we reverse the judgment of the Court of Appeal insofar as it vacated the trial court’s imposition, under section 12022(b), of one-year sentence enhancements for Wims’s and Ford’s use of a deadly or dangerous weapon. In all other respects, we affirm.
Facts
On the evening of November 12, 1991, Paige D’Agostino and his fiancée Elizabeth Gebhardt were walking home from the Powell Street BART (Bay [299]Area Rapid Transit) station in San Francisco when they noticed defendant Wims and a woman involved in an altercation. Someone asked D’Agostino and Gebhardt for spare change, and they said they had none. Suddenly, Ford grabbed D’Agostino around the neck from behind and pulled him backward. Wims hit D’Agostino twice in the head with a crutch and then struck him in the face and chest with his fists. Ford then swung D’Agostino into the crosswalk, where he landed on his knees. Ford and Wims began pulling on D’Agostino’s black leather jacket. Codefendant Carolyn Gipson3 pushed Gebhardt and hit her in the head. Ford continued to pull on D’Agostino’s jacket and then held a knife eight inches from his face and threatened to “cut [him] up” if he didn’t let go of the jacket. D’Agostino and Gebhardt continued walking. D’Agostino was bleeding profusely from his nose, mouth and cheek. Tom McCoy, a passing motorist and off-duty security guard, spoke with D’Agostino and Gebhardt and contacted the police.
According to Gebhardt, as Wims hit D’Agostino with the crutch, Ford held him and said, “Give us your money.” After Wims beat D’Agostino with the crutch, he threw it down, and Gebhardt saw him holding a knife. Gipson displayed another knife and threatened Gebhardt with it. Gebhardt testified Ford also had a knife, but on cross-examination acknowledged she had told police she was not sure if either Ford or Wims had a knife, since she had been concerned about Gipson’s knife. After the incident, Gebhardt accompanied police to the scene and identified Wims, Ford and Gipson as the perpetrators. As police approached, Wims threw down a set of keys identified by Gebhardt as belonging to her and D’Agostino. Ford and Wims each possessed a knife when arrested.
McCoy, the passing motorist, testified he saw Wims hitting a White man and Ford pulling at the man’s jacket. McCoy also testified both Wims and Ford were holding knives. He acknowledged, however, he had told police about only one knife. He had not mentioned a second knife because he had not specifically been asked about a second knife.
Finally, Gipson, testifying in her own defense, stated she first saw Ford, and then Wims, with a knife.
Defendants Wims, Ford and Gipson were each charged by information with second degree robbery (against D’Agostino) (§ 212.5, subd. (b)) and assault with a deadly weapon and by means of force likely to produce great bodily injury (against Gebhardt) (§ 245, subd. (a)(1)). In connection with the robbery count, it was further alleged that “in the commission and attempted commission of the above offense, the defendants, Wilbert Ford, Carolyn [300]Jean Gipson, and Clifton C. Wims, personally used a deadly and dangerous weapon, to wit, Knife, said use not being an element of the above offense within the meaning of Penal Code section 12022(b).”
Wims was also charged, in the alternative to the robbery charge, with receiving stolen property, i.e., Gebhardt’s keys. Ford was alleged to have suffered two prior serious felony convictions (both robberies, one in Missouri and one in California).
The charges against defendants Ford, Wims and Gipson were tried to a jury. After the People rested, the court granted motions to dismiss the assault charge as to Ford and Wims.
After evidence had been presented, the court instructed the jury on general matters, elements of the charged offenses, and lesser included offenses. The court did not specifically instruct the jury on the elements of a section 12022(b) enhancement. The court did instruct the jury on aiding and abetting liability.
In closing argument, the prosecutor noted the robbery count in the information “also has a knife allegation, each of them used a knife while in the commission of this crime.” She also reviewed some of the evidence dealing with knife use:
“Underneath the robbery charge [on the verdict forms] as I mentioned there is a knife allegation. It’s alleged that each of these three defendant[]s used a knife in the commission of the robbery. ... I think you will agree that there was testimony that defendant Ford had a knife. In fact, there’s a knife that was taken from him that evening and booked and it’s the knife that was marked as People’s 5B, the knife identified as being similar to what they saw defendant Ford have in his possession that night.
“With respect to defendant Wims . . . [Gebhardt] stated that defendant Gipson had a long knife which is consistent with [People’s exhibit 5C], but she also stated that defendant Wims had a knife as did Mr. McCoy [the passing motorist]. This [People’s exhibit 5C], however, is the knife that was taken from the back of defendant Wims’ pocket when he was arrested for this charge. So far while we have two knives and not three, you may be asking yourself; well . . . where’s the third knife? Well, unfortunately I don’t know where the third knife is. Maybe she does. However, I don’t. But, in any event, Elizabeth Gebhardt clearly . . . saw a knife being waved in front of her face and [heard] defendant Gipson saying, “Let go of the jacket or I’ll cut you. ... So the knife allegation is as to all three and I think the evidence suggests it.”
[301]In closing argument, Ford’s defense counsel acknowledged D’Agostino was assaulted and did not dispute the evidence that D’Agostino’s attacker (Ford, according to the prosecution) used a knife. Ford’s counsel argued only that Ford was misidentified and was not one of the robbers. He conceded Ford had a knife when arrested, but contended that circumstance did not prove Ford was involved in the robbery. He said Gebhardt’s identification of Ford was unreliable, because previously Gebhardt told police she was not completely sure if she saw one knife or two and because she was focusing on the knife being held at D’Agostino’s throat, not on the person who was holding it. D’Agostino’s identification of Ford was also flawed, said Ford’s counsel, because D’Agostino would have been focusing on the knife rather than the knife holder.
Wims’s counsel argued that Wims was “probably guilty of some other things, but he is not guilty of robbery,” because he lacked the intent to take property. He said: “Clearly he jumped into the assault. You know, Mr. Wims is no boyscout. What you see in evidence is definitely not a boyscout knife.”
As the People concede, the trial court did not instruct the jury on the elements of section 12022(b) except in reviewing the verdict forms. The court said: “If and when you reach a verdict as to [the robbery] count, then your foreperson is to fill in the appropriate word, guilty or not guilty, date it and sign it. This instruction has a further requirement on you [sic]. ‘We further find that the use of the deadly weapon allegation, violation of Penal Code section 12022(b) to be,’ there’s another blank, ‘true or not true.’ And when you reach a verdict as to this particular allegation, then your foreperson is to write in the correct true or not true, date it and sign it. And this is the same as to each of the three defendant[]s.”
During deliberations, the jury inquired in writing of the court whether a crutch constitutes a deadly weapon. The court answered that “it could under some circumstances. However, there’s no allegation here against Mr. Wims regarding the use of a deadly weapon, to wit, a crutch . ... [¶] He is charged with using a deadly weapon in the commission of a robbery. However, by the terms of the pleadings it’s limited to the knife. [¶] So whether or not a crutch is a deadly weapon or not, is really irrelevant. . . .”
The jury also asked for “[a] copy of/or reading of Mr. D’Agostino’s and Mr. McCoy’s testimony regarding the presence/display or lack of presence/ display of a knife during the incident by Mr. Wims.” The court responded: “My court reporter has gone through the entire transcripts of the proceedings, finds no reference to any questions asked of Mr. D’Agostino one way or the other as to whether or not Mr. Wims had a knife, displayed a knife, [302]any—there is one reference in Mr. McCoy’s testimony which she’s prepared to read to you at this time.” The court then stated the court reporter would print a portion of the transcribed testimony and provide the printed portion to the jury.
The jury delivered written general verdicts finding defendants Ford and Wims each guilty of second degree robbery as charged. The jury further found the section 12022(b) allegation true as to defendants Ford and Wims.
The jury acquitted defendant Gipson of the robbery charge, found the weapon use allegation not to be true as to her, and found her guilty of misdemeanor battery as a lesser included offense of the assault charge.
Defendant Ford waived his jury trial right on the prior serious felony conviction allegation. The court found Ford had suffered one prior serious felony conviction. Ford was sentenced to a term of eleven years (comprised of the upper term of five years for robbery, plus one year for the section 12022(b) enhancement and five years for the prior serious felony conviction enhancement). Defendant Wims was sentenced to a term of six years (comprised of the upper term of five years for robbery, plus one year for the section 12022(b) enhancement).
Defendants Ford and Wims (hereafter defendants) complained on appeal the trial court erred in failing to instruct the jury as to the elements of the section 12022(b) enhancement allegation. The Court of Appeal held in favor of defendants and reversed the section 12022(b) enhancements. We granted the People’s petition for review.
Discussion
A. Did the Trial Court Commit Error?
In order to find “true” a section 12022(b) allegation, a fact finder must conclude that, during the crime or attempted crime, the defendant himself or herself intentionally displayed in a menacing manner or struck someone with an instrument capable of inflicting great bodily injury or death. (People v. James (1978) 88 Cal.App.3d 150, 160 and fn. 2 [151 Cal.Rptr. 354] [approving CALJIC No. 17.16]; see also CALJIC No. 17.16 and com. to No. 17.16 (5th ed. 1988) [approved jury instruction for section 12022(b) violations indicating definition of “used a deadly or dangerous weapon” is adapted from section 1203.6]; cf. People v. Graham (1969) 71 Cal.2d 303, 327-328 [78 Cal.Rptr. 217, 455 P.2d 153] [deadly weapons are those designed for deadly use or used in such a manner]; People v. Jacobs [303](1987) 193 Cal.App.3d 375, 381 [238 Cal.Rptr. 278] [firearm is “used” within meaning of section 12022.5 if victim senses its presence and there is threat of use sufficient to produce fear of harm].)
The trial court failed to instruct defendants’ jury as to the factual elements the prosecution was required to prove before the jury could properly find true the section 12022(b) allegations. The trial court only read to the jury the verdict forms, which simply referred to “the Use of Deadly Weapon Allegation.”4
In criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to and governing the case. (People v. Cummings (1993) 4 Cal.4th 1233, 1311 [18 Cal.Rptr.2d 796, 850 P.2d 1]; see also People v. Hood. (1969) 1 Cal.3d 444, 449 [82 Cal.Rptr. 618, 462 P.2d 370]; People v. Graham, supra, 71 Cal.2d 303, 318.) In this case, the court’s omission of CALJIC No. 17.16 or an equivalent instruction, mitigated only by the court’s reading of the “deadly weapon use” verdict form and the prosecutor’s discussion of the “knife allegation,” left the jury uninformed as to all of the factual elements necessary to a “true” finding under section 12022(b).
We have held a defendant is entitled to proper jury instructions regarding the meaning of a weapon use enhancement allegation which is tried to a jury. (People v. Najera (1972) 8 Cal.3d 504, 510 [105 Cal.Rptr. 345 , 503 P.2d 1353] (regarding § 12022.5; approved in part and disapproved in part People v. Wiley (1995) 9 Cal.4th 580, 588 (38 Cal.Rptr.2d 347, 889 P.2d 541)].) The People do not dispute defendants were entitled to proper jury instructions regarding the meaning of section 12022(b), nor that the instructions given in this case were flawed. Plainly, the trial court erred in not instructing defendants’ jury on the factual elements of a section 12022(b) enhancement.
Trial court error, of course, does not necessarily mandate reversal. The question remains whether the instructional error was prejudicial.
B. Did the Trial Court’s Error Violate the Federal Constitution?
1. Jury Trial
Defendants argue the trial court’s error impaired their right to trial by jury under the Sixth Amendment as incorporated in the Fourteenth Amendment. We disagree.
[304]Defendants, we emphasize, do not claim error in connection with the substantive offenses with which they were charged. Rather, their claim of error relates only to the trial court’s instructions on the section 12022(b) sentence enhancement allegations. State law, not the federal Constitution, is the source of defendants’ right to a jury trial on the section 12022(b) allegations, and the state right, moreover, is conditional on the underlying offense being tried to a jury. (See § 969c.)5 There simply is “no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact.” (McMillan v. Pennsylvania (1986) 477 U.S. 79, 93 [91 L.Ed.2d 67, 80-81, 106 S.Ct. 2411], citing Spaziano v. Florida (1984) 468 U.S. 447, 459 [82 L.Ed.2d 340, 352, 104 S.Ct. 3154].)
Defendants argue the court’s instructional omissions implicated their Sixth Amendment rights because section 12022(b) shares fundamental analytical and functional characteristics of a “crime,” although it is designated an “enhancement.” That an enhancement resembles a substantive offense, insofar as it imposes additional punishment based upon a factual finding that a defendant engaged in particular conduct, may be true. Such similarity, however, does not elevate to federal constitutional stature defendants’ section 12022(b) jury rights.
California courts have long recognized that “[a]n enhancement is not a separate crime or offense . . . .” (People v. Waite (1983) 146 Cal.App.3d 585, 593 [194 Cal.Rptr. 245], disapproved on other grounds People v. Jones (1988) 46 Cal.3d 585, 592-594 [250 Cal.Rptr. 635, 758 P.2d 1165]; see also People v. Bauzas (1991) 53 Cal.3d 467, 479 [279 Cal.Rptr. 847, 807 P.2d 1076]; In re Shull (1944) 23 Cal.2d 745, 749 [146 P.2d 417] [discussing predecessor to section 12022]; People v. Turner (1983) 145 Cal.App.3d 658, 684 [193 Cal.Rptr. 614].) “As defined in the Rules of Court, an enhancement ‘means an additional term of imprisonment added to the base term.’ ” (People v. Hernandez (1988) 46 Cal.3d 194, 207 [249 Cal.Rptr. 850, 757 P.2d 1013], quoting Cal. Rules of Court, rule 405(c), and citing Cassou & Taugher, Determinate Sentencing in California: The New Numbers Game (1978) 9 Pacific L.J. 5, 22-24.) “Enhancements typically focus on an element of the commission of the crime or the criminal history of the defendant which is not present for all such crimes and perpetrators and which justifies a higher penalty than that prescribed for the offenses themselves.” (People v. Hernandez, supra, 46 Cal.3d at pp. 207-208.)
[305]Section 12022(b) provides for “an additional term of one year[’s]” imprisonment to be added to the base term of a felony conviction. That section 12022(b) “includes[] elements] in addition to those necessary to prove” the underlying felony “certainly does not imply it has defined a new crime.” (People v. Hernandez, supra, 46 Cal.3d at p. 207 [discussing section 667.8].) Rather, section 12022(b) merely focuses on a circumstance involved in the commission of some felonies (i.e., use of a “deadly or dangerous weapon”) that the Legislature apparently believed justifies an additional penalty to that prescribed for the underlying felonies. Thus, as we have previously recognized in analogous circumstances, section 12022(b) articulates a penalty provision, not a substantive crime. (People v. Hernandez, supra, 46 Cal.3d at pp. 207-208; see also People v. Smith (1985) 163 Cal.App.3d 908, 913 [210 Cal.Rptr. 43] [discussing section 12022, subdivision (a)]; and People v. Wolcott (1983) 34 Cal.3d 92, 100 [192 Cal.Rptr. 748, 665 P.2d 520] [discussing section 12022.5].)
“The Sixth Amendment never has been thought to guarantee a right to a jury determination” of the appropriate punishment to be imposed on an individual. (Spaziano v. Florida, supra, 468 U.S. at p. 459 [82 L.Ed.2d at p. 352].) The Supreme Court, moreover, has specifically determined the Sixth Amendment does not require jury fact-finding when a statute—like section 12022(b)—makes weapon possession a sentencing factor rather than an element of a crime. (McMillan v. Pennsylvania, supra, 477 U.S. at pp. 89-90 [91 L.Ed.2d at pp. 78-79].)
In McMillan v. Pennsylvania, supra, 477 U.S. 79 (McMillan), the high court considered an aspect of the Pennsylvania Mandatory Minimum Sentencing Act of 1982, pursuant to which anyone convicted of an enumerated felony is subject to a mandatory minimum sentence of five years’ imprisonment, if the sentencing judge finds, by a preponderance of the evidence, the person visibly possessed a firearm during the commission of the offense. The act does not authorize a sentence exceeding that otherwise allowed for the underlying offense, but divests the judge of discretion to impose any sentence of less than five years. (Id. at pp. 81-82 [91 L.Ed.2d at pp. 73-74]; see 42 Pa. Cons. Stat. § 9712 (1982).)
The high court in McMillan held the Pennsylvania act did not deny the defendants their Sixth Amendment right to trial by jury. (477 U.S. at p. 93 [91 L.Ed.2d at pp. 80-81].) Defendants acknowledge the McMillan decision, but argue section 12022(b) is different from the Pennsylvania law upheld there in ways that should trigger Sixth Amendment jury protection. Specifically, defendants note section 12022(b) permits the imposition of punishment exceeding that provided for the underlying offense, while the Pennsylvania law provided only for imposition of a mandatory minimum sentence [306]within a range already authorized for the underlying offense. While we discern the difference, we do not agree it should be dispositive.
In McMillan, the high court acknowledged a concern that state legislatures not circumvent due process by recharacterizing elements of offenses as sentencing factors. The court considered “the specter raised by petitioners of States restructuring existing crimes in order to ‘evade’ the commands of [due process]. . . .” (477 U.S. at p. 89 [91 L.Ed.2d at p. 78].) In concluding such concerns were not implicated by the Pennsylvania law, the court noted the enumerated felonies involved “retain the same elements they had before the Mandatory Minimum Sentencing Act was passed. The Pennsylvania Legislature did not change the definition of any existing offense.” (Ibid.)
The Supreme Court concluded Pennsylvania’s law “simply took one factor that has always been considered by sentencing courts to bear on punishment —the instrumentality used in committing a violent felony—and dictated the precise weight to be given that factor if the instrumentality is a firearm. Pennsylvania’s decision to do so has not transformed against its will a sentencing factor into an ‘element’ of some hypothetical ‘offense.’ ” (McMillan, supra, 477 U.S. at pp. 89-90 [91 L.Ed.2d at pp. 78-79].)
Similarly, there is no indication our Legislature, in enacting section 12022(b), sought to circumvent due process by renaming, as a sentencing enhancement, an element of a greater offense. Section 12022(b) does not change the definition of any existing offense.6 The Legislature’s decision to impose an additional prison term for personal use of a deadly or dangerous weapon, a traditional sentencing factor, and to entrust the underlying factual determination to a jury (but only when the underlying offense is tried to a jury), does not transform section 12022(b) from a sentencing provision into a substantive offense.
In dissent, Justice Kennard suggests “the inference is strong that the Legislature must have intended enhancements to be the functional equivalent of criminal offenses.” (Conc, and dis. opn. of Kennard, J., post, at p. 324.) Her opinion, however, cites neither statutory language nor legislative history [307]materials supporting such an inference. Nor does it explain why, if our Legislature intended a sentence enhancement to be “part of the criminal offense to which it is attached” (conc, and dis. opn. of Kennard, J., post at p. 318), it did not simply say so. When the Legislature wishes to create a substantive offense having as one of its elements another substantive offense, it knows how to do so. (See; e.g., § 666 [petit theft with a prior]; § 12021 [ex-felon in possession of firearm].)
Contrary to the dissent’s suggestion, in our statutory scheme sentence enhancements are not “equivalent” to, nor do they “function” as, substantive offenses. Most fundamentally, a sentence enhancement is not equivalent to a substantive offense, because a defendant is not at risk for punishment under an enhancement allegation until convicted of a related substantive offense. (See, e.g., section 12022(b), enhancing sentence only “upon conviction . . . .”) At that time, a defendant’s liberty interest “has been substantially diminished by a guilty verdict.” (McMillan, supra, 477 U.S. 79, 84 [91 L.Ed.2d 67, 75].) The Legislature, moreover, has in various ways expressed its intention that enhancements not be treated as substantive offenses.7
While in McMillan the high “court made it clear that state legislatures do not have unfettered discretion to define the elements of an offense... it has consistently rejected any bright line test. . . .” (Nichols v. McCormick (9th Cir. 1991) 929 F.2d 507, 510.) We agree with the People that defendants mistake one factor underlying McMillan for the entire rationale. McMillan's holding rests on several factors; that the disputed statute imposed a mandatory minimum sentence rather than increasing the maximum penalty was not [308]the most important. (See McMillan, supra, 477 U.S. at pp. 85-90 [91 L.Ed.2d at pp. 75-79].)
First, the high court in McMillan noted its traditional deference to state legislative judgment in “defining crimes and prescribing penalties.” (McMillan, supra, 477 U.S. at pp. 85-86 [91 L.Ed.2d at pp. 75-76].) Second, in the challenged statute the Pennsylvania legislature was neither “discarding the presumption of innocence” (id. at p. 87 [91 L.Ed.2d at p. 77]) “[n]or . . . relieving] the prosecution of its burden of proving guilt.” (Ibid.) Third, the “Pennsylvania legislature did not change the definition of any existing offense” so as to circumvent due process requirements. (Id. at p. 89 [91 L.Ed.2d at p. 78].) Fourth, the disputed statute enhanced punishment based upon a “factor that has always been considered by sentencing courts to bear on punishment—the instrumentality used . . . .” (Ibid.) In light of these factors, the high court declared Pennsylvania’s sentencing statute was constitutional. (Id. at p. 91 [91 L.Ed.2d at pp. 79-80]; see also Nichols v. McCormick, supra, 929 F.2d at p. 510.)
The United States Court of Appeals for the Ninth Circuit has applied the McMillan factors to a state sentencing statute similar in important respects to section 12022(b). In Nichols v. McCormick, supra, 929 F.2d 507, the Ninth Circuit upheld against a due process challenge a Montana weapons enhancement statute that imposed, for weapon use during an “offense,” imprisonment of not less than two years or more than ten years “in addition to the punishment provided for the commission of” the offense. (Nichols v. McCormick, supra, 929 F.2d at p. 508 & fn. 1 [examining Mont. Code Ann. §46-18-221 (1989)].)
In considering McMillan's impact upon the Montana statute, the Ninth Circuit noted “the Montana statute, unlike that of Pennsylvania in McMillan, allows the sentencing court to impose a penalty in excess of that permitted by the underlying offense.” (Nichols v. McCormick, supra, 929 F.2d at p. 510.) The court did not find this difference dispositive, noting the additional penalty factor was, under McMillan, only one of the “factors relevant to making this determination.” (Nichols v. McCormick, supra, 929 F.2d at p. 510.) The court concluded that, as “Montana properly treats weapon use as a sentencing factor, it follows that there is no Sixth Amendment right to a trial by jury.” (Nichols v. McCormick, supra, 929 F.2d at p. 509, citing McMillan, supra, 477 U.S. U.S. at p. 93 [91 L.Ed.2d at pp. 80-81].)
We agree with the Ninth Circuit that the “import of McMillan is that a state is free to define possession of a weapon as a sentencing factor.” (Nichols v. McCormick, supra, 929 F.2d at p. 511.) Although defendants [309]have correctly noted section 12022(b) imposes an “additional term” beyond that provided for the underlying offense, nothing in McMillan suggests this fact of itself entitles defendants to a jury under the Sixth Amendment. As Nichols explains, the United States Supreme Court in McMillan rejected defendants’ suggestion the imposition of additional punishment automatically triggers Sixth Amendment jury protection.
2. Due Process
Defendants argue the trial court’s error arbitrarily deprived them of a state-created liberty interest in the exercise of jury sentencing discretion in contravention of Hicks v. Oklahoma (1980) 447 U.S. 343 [65 L.Ed.2d 175, 100 S.Ct. 2227]. We disagree.
In Hicks, a state law provided for discretionary jury determination of the punishment to be imposed. A state statute, however, mandated a 40-year term for habitual offenders. Finding defendant, who had been convicted of unlawfully distributing heroin, to be an habitual offender, the jury imposed the mandatory 40-year term. Thereafter, the habitual offender statute was declared unconstitutional. The appellate court nonetheless affirmed the sentence, concluding the defendant had not been prejudiced by application of the invalid statute, because the 40-year sentence was within the range of punishment for the underlying offense in any event. (Hicks v. Oklahoma, supra, 447 U.S. at pp. 344-345 [65 L.Ed.2d at pp. 178-179].)
In reversing, the high court stated “[w]here ... a State has provided for the imposition of criminal punishment in the discretion of the trial jury, it is not correct to say that the defendant’s interest in the exercise of that discretion is merely a matter of state procedural law. The defendant in such a case has a substantial and legitimate expectation that he will be deprived of liberty only to the extent determined by the jury in the exercise of its statutory discretion [citation] and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State.” (Hicks v. Oklahoma, supra, 447 U.S. at p. 346 [65 L.Ed.2d at p. 180].) Because the jury had not determined the appropriate sentence (nor had the appellate court, as state law permitted, itself reconsidered its appropriateness), the Supreme Court held the defendant had been deprived of his liberty without due process. (Id. at p. 347 [65 L.Ed.2d at p. 180].)
Defendants here suffered no deprivation of state-mandated jury discretion analogous to that suffered by the defendants in Hicks. Defendants were not entitled under section 12022(b) to jury sentencing discretion; at most they were entitled to a jury finding on whether the section 12022(b) enhancement [310]allegation was true. (See People v. Brown (1988) 46 Cal.3d 432, 447-448 [250 Cal.Rptr. 604, 758 P.2d 1135] [distinguishing “[w]hen the ‘result’ under review is the product of a jury’s factfinding” from “[a] capital penalty jury” which “is charged with a responsibility different in kind,” i.e., “to render an individualized, normative determination about the penalty appropriate for a particular defendant”].) Defendants’ jury, after all, did render verdicts on each weapon-use allegation. The rationale of Hicks therefore does not apply to section 12022(b). (See also People v. Odle (1988) 45 Cal.3d 386, 411-412 [247 Cal.Rptr. 137, 754 P.2d 184] [holding Hicks rationale not applicable to a failure to instruct on the elements of a special circumstance].)
The high court has made plain that Hicks does not invalidate every true finding rendered on a sentencing provision when the jury has received flawed instructions. (See Clemons v. Mississippi (1990) 494 U.S. 738 [108 L.Ed.2d 725, 110 S.Ct. 1441].) In Clemons, the court held the federal Constitution does not prevent a state appellate court from upholding a death sentence imposed by a jury “that is based in part on an invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by harmless-error review . . . .” (Clemons v. Mississippi, supra, 494 U.S. at p. 741 [180 L.Ed.2d at p. 733].) In so holding, the high court noted that, “[c]ontrary to the situation in Hicks, the state [appellate] court in [Clemons] asserted its authority under Mississippi law to decide for itself whether the death sentence was to be affirmed . . . .” (Clemons v. Mississippi, supra, 494 U.S. at p. 747 [108 L.Ed.2d at p. 737].) “We specifically pointed out [in Hicks], however, that the [appellate court there] did not ‘purport to cure the deprivation by itself reconsidering the appropriateness’ of the 40-year sentence, [citation] thus suggesting that appellate sentencing, if properly conducted, would not violate due process of law.” (Ibid.)
The high court’s reasoning in Clemons applies to California’s scheme for section 12022(b) sentence enhancements. Defendants’ state statutory right to jury findings on a section 12022(b) enhancement is constitutionally qualified by the duty of California appellate courts to examine “the entire cause” when any “misdirection of the jury” is alleged and to affirm the judgment absent a “miscarriage of justice.” (Cal. Const., art. VI, § 13.) Contrary to defendants’ suggestion, therefore, if we examine the record of this trial to determine whether the instructional error resulted in a miscarriage of justice, we do not engage in any impermissible attempt to “substitute” our determination for the jury determination a defendant may claim under section 969c. Indeed, the possibility of such a corrective appellate determination is inherent in the state statutory scheme for jury determination. When rendered, such appellate [311]review complements, and thus affords, defendants their full jury rights and, thus, due process of law under Hicks. (Cf. Clemons v. Mississippi, supra, 494 U.S. at p. 747 [108 L.Ed.2d at p. 737] [rejecting the defendant’s assertion he had an “unqualified liberty interest under the Due Process Clause to have the jury assess the consequence of the invalidation of one of the aggravating circumstances”].) For these reasons, defendants here cannot complain of the sort of deprivation suffered by the defendants in Hicks.
Nor did the court’s failure to read CALJIC No. 17.16 or an equivalent instruction render defendants’ trial fundamentally unfair. Contrary to defendants’ suggestion, People v. Hernandez, supra, 46 Cal.3d 194 does not compel a contrary result.
In Hernandez, we concluded a sentencing judge may not constitutionally impose an additional three-year term under section 667.8 (kidnapping for purposes of rape) when no violation of that statute was pled or proven. (The allegation in Hernandez was mentioned for the first time in the probation report.) (People v. Hernandez, supra, 46 Cal.3d at p. 197.) In so concluding, we stated an enhancement statute “should [not] be read as a mere sentencing factor [but] rather [as] a finding which must be pled and proven before the trier of fact.” (Hernandez, supra, 46 Cal.3d at p. 206, fn. omitted.)
Our decision in Hernandez depended upon a circumstance—lack of notice—not present in this case. Because the enhancement at issue had not even been pled, we said, “[i]t is possible that defendant failed to testify or otherwise put on additional evidence as to his degree of intoxication and precise mental state at the time of the crimes .... He did not know he faced ... the section 667.8 enhancement . . . and from the prosecution’s failure to plead section 667.8 he could reasonably assume the prosecution had chosen not to pursue it.” (People v. Hernandez, supra, 46 Cal.3d at p. 209, fn. omitted.) Obviously, defendants here were not in an analogous situation; they knew from the outset they were facing section 12022(b) sentence enhancement allegations. The trial court’s failure to read CALJIC No. 17.16 to the jury logically could not have diminished defendant’s incentive to present evidence relating to section 12022(b), because such evidence, if presented at all, must be presented before the jury is instructed.
Most importantly, any discussion in Hernandez relating to the instructional omission was dictum, as our holding depended solely upon lack of notice. (People v. Hernandez, supra, 46 Cal.3d at pp. 197, 210-211.) It is true we noted no instruction had been given requiring that the jury find “the crucial fact” the defendant committed kidnapping with the specific intent to commit rape. (People v. Hernandez, supra, 46 Cal.3d at p. 211.) We did not, [312]however, rely on the instructional omission in holding that, “[a]s a matter of due process, the enhancement under section 667.8 could not be imposed . . . .” (46 Cal.3d at p. 208.) We found it “unnecessary to articulate a particular standard of review and engage in a harmless-error analysis when defendant’s due process right to notice has been so completely violated.” (People v. Hernandez, supra, 46 Cal.3d at pp. 208-209.)
Hernandez, therefore, is not authority for the proposition that failure to instruct the jury on the elements of a sentence enhancement violates the Fourteenth Amendment. Hernandez merely confirms that section 667.8 enhancements must be pled and proven by the prosecution. That the section 12022(b) enhancements at issue in this case were pled and proven to defendants’ jury is undisputed.
Defendants also assert the jury instructions in this case created “structural defects in the constitution of the trial mechanism” (Arizona v. Fulminante (1991) 499 U.S. 279, 309 [113 L.Ed.2d 302, 331, 111 S.Ct. 1246]) such as would fall within the limited category of error that is reversible per se under the federal Constitution. We disagree. The trial court’s failure to read CALJIC No. 17.16 neither wholly withdrew from jury consideration substantially all of the elements of a charged substantive offense (cf. People v. Cummings, supra, 4 Cal.4th 1233, 1315, citing Carella v. California (1989) 491 U.S. 263, 265, 267 [105 L.Ed.2d 218, 221-223, 109 S.Ct. 2419] and Yates v. Evatt (1991) 500 U.S. 391 [114 L.Ed.2d 432, 111 S.Ct. 1884]),8 nor so vitiated all of the jury’s findings as to effectively deny defendants a jury trial altogether. (Cf. Sullivan v. Louisiana (1993) 508 U.S. _ [124 L.Ed.2d 182, 113 S.Ct. 2078].)
Defendants were vigorously represented at trial by counsel who presented evidence and argument before a judge and jury whose impartiality is . not [313]disputed. Defendants thus received the “ ‘basic protectio[n] ’ ” to which they were entitled. (Sullivan v. Louisiana, supra, 508 U.S. at p. _ [124 L.Ed.2d at p. 191, 113 S.Ct. at p. 2083], quoting Rose v. Clark (1986) 478 U.S. 570, 577 [92 L.Ed.2d 460, 470, 106 S.Ct. 3101].) The jury was charged with determining whether each defendant committed robbery and whether each used a deadly weapon. The jury was properly instructed on the elements of robbery and received some guidance (albeit incomplete) with respect to the weapon use allegation. The court’s instructional error thus was not one which “either aborted the basic trial process [citation] or denied it altogether [citations].” (See Rose v. Clark, supra, 478 U.S. at p. 578, fn. 6 [92 L.Ed.2d at p. 470].) The jury was instructed to find the facts underlying its verdict true “beyond a reasonable doubt.” There was no “misdescription of the burden of proof, which vitiates all the jury’s findings.” (Cf. Sullivan v. Louisiana, supra, 508 U.S. at p. _ [124 L.Ed.2d at p. 190, 113 S.Ct. at p. 2082].)
Finally, relying on Morgan v. Illinois (1992) 504 U.S. 719 [119 L.Ed.2d 492, 112 S.Ct. 2222], defendants assert federal due process requires the same standard of reversal be applied for a state violation of a state-conferred right to a jury trial as for a state violation of a federally mandated jury trial. Again, we do not agree.
In Morgan v. Illinois, supra, the high court affirmed that due process requires the exclusion from state-law-mandated capital sentencing juries of jurors who would automatically vote in favor of the death penalty. (504 U.S. at pp. 729-732 [119 L.Ed.2d at pp. 503-505, 112 S.Ct. at pp. 2230-2231].) The high court based its holding on “the requirement of impartiality embodied in the Due Process Clause of the Fourteenth Amendment” (id. at p. 729 [119 L.Ed.2d at p. 503, 112 S.Ct. at p. 2229]), an incident of due process defendants have not claimed was absent from their hearing. As relevant to this case, Morgan v. Illinois stands for no more than the indisputable proposition that defendants, being statutorily entitled to a jury trial, were therefore constitutionally entitled to “ ‘a fair trial by a panel of impartial, “indifferent’ jurors” ’ ” (504 U.S. at p. 727 [119 L.Ed.2d at p. 501, 112 S.Ct. at p. 2228], quoting In re Oliver (1948) 333 U.S. 257 [92 L.Ed. 682, 68 S.Ct. 499]), that is, to fundamental fairness in the context of their jury trial. As previously discussed, defendants here were not denied fundamental fairness.
3. Equal Protection
Defendants also advance an equal protection argument, premised on the notion that “ [defendants who face a substantial loss of liberty from a jury trial on an enhancement are similarly situated to defendants who face a [314]loss of liberty from a jury trial on an underlying offense.” As a matter of federal constitutional law, defendants are simply wrong. A defendant whom the fact finder has determined committed an underlying offense has a substantially diminished liberty interest at risk in connection with any related sentencing determination. (See McMillan, supra, 477 U.S. at pp. 83-84 [91 L.Ed.2d at pp. 74-75.)
As we have recognized, the Legislature has classified personal use of a deadly or dangerous weapon during commission of a felony as a sentence enhancement, not a separate crime. (People v. Hernandez, supra, 46 Cal.3d at p. 207.) The Supreme Court has repeatedly indicated states have wide discretion in defining crimes and their elements. (See, e.g., Patterson v. New York (1977) 432 U.S. 197, 201-202 [53 L.Ed.2d 281, 286-287, 97 S.Ct. 2319]; Schad v. Arizona (1991) 501 U.S. 624, 636 [115 L.Ed.2d 555, 568, 111 S.Ct. 2491].) Like the high court, we reject defendants’ contention that, because some elements of enhancements may be similar to elements of offenses, states are required to treat enhancement determinations exactly like determinations on substantive offenses.
In summary, the trial court’s instructional omissions did not deny defendants any federal constitutional right.9
C. Was the Trial Court’s Error Prejudicial?
As already mentioned, the trial court’s failure to instruct on the elements of a section 12022(b) enhancement was erroneous. When “state standards alone have been violated, the State is free ... to apply its own state harmless-error rule to such errors of state law.” (Cooper v. California (1967) 386 U.S. 58, 62 [17 L.Ed.2d 730, 734, 87 S.Ct. 788].) “[T]he California Constitution, unlike its federal counterpart, contains an explicit provision that directly addresses the issue of reversible error—a section added by the electorate of this state for the specific purpose of abrogating the preexisting rule that had treated any substantial error as reversible per se.” (People v. Cahill (1993) 5 Cal.4th 478, 501 [20 Cal.Rptr.2d 582, 853 P.2d 1037], italics in original, citing Cal. Const., art. VI, § 13.) This state constitutional provision “explicitly mentions ‘misdirection of the jury’ as error which warrants reversal only if, ‘after examination of the entire cause, including the evidence, the court [concludes]. . . that the error. . . resulted in a miscarriage of justice.’ The word ‘misdirection’ logically includes every kind of instructional error. It seems manifest that incorrect, ambiguous, conflicting, or wrongly omitted instructions may equally ‘misdirect’ the jury’s deliberations. Nothing in the language or history of article VI, section 13, suggests [315]that its requirement of actual prejudice, determined by reference to ‘the entire cause, including the evidence,’ applies to some forms of ‘misdirection,’ but not to others.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 579 [34 Cal.Rptr.2d 607, 882 P.2d 298].) Thus, the trial court’s failure to instruct on the elements of a section 12022(b) sentence enhancement is “misdirection of the jury” for which we are constitutionally forbidden to reverse absent a “miscarriage of justice.” (Cal. Const., art. VI, § 13.)
The test for harmlessness we articulated in People v. Watson, supra, 46 Cal.2d 818, which gives effect to the constitutional provision, is “generally applicable under current California law.” (See People v. Cahill, supra, 5 Cal.4th at p. 492.) Under Watson, the trial court’s judgment may be overturned only if “it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error.” (People v. Watson, supra, 46 Cal.2d at p. 836.) “In determining whether there was prejudice, the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury dining deliberations, and the entire verdict.” (People v. Guiton (1993) 4 Cal.4th 1116, 1130 [17 Cal.Rptr.2d 365, 847 P.2d 45].)
Applying the Watson test, we conclude neither defendant Wims nor defendant Ford was actually prejudiced by the trial court’s instructional error.
First, we consider the record as to defendant Wims. Three witnesses, McCoy, Gebhardt and codefendant Gipson, testified Wims displayed a knife during the robbery. Gebhardt described in detail the menacing manner in which he displayed it. She saw Wims, after beating her fiancé with a crutch and then throwing it down, hold a knife “up in the air” “above his shoulders.” Wims possessed a knife (People’s exhibit 5C) at the time of his arrest. His counsel, in arguing to the jury, did not deny Wims had possessed a knife; indeed, he implicitly conceded the point: “Clearly he jumped into the assault. You know, Mr. Wims is no boy scout. What you see in evidence is definitely not a boyscout knife.”
In contrast, the evidence Wims did not personally use a knife was weak. Gebhardt acknowledged on cross-examination she had told officers immediately after the attack she was not certain whether anyone other than Gipson had used a knife, but she described herself as “mostly concerned” at that time about the knife with which Gipson had been threatening her. Likewise, McCoy acknowledged on cross-examination he had not told officers about a second knife, but redirect examination revealed he had not been asked. D’Agostino testified he did not see anything in Wims’s hands other than a [316]crutch, but he also testified he was not able to see Wims’s hands after being struck in the face with the crutch. Wims, who argues the instructional error was prejudicial, contends the jury’s requests for information during deliberations permit no other conclusion. As mentioned above, the jury asked for “a copy of or reading of Mr. D’Agostino and Mr. McCoy’s testimony regarding the presence, display or lack of presence of a knife during the incident by Mr. Wims,” and for an answer to the question whether “a crutch constitutes a deadly weapon.” In view of these questions, Wims suggests, the most likely explanation for the jury’s ‘true’ finding is that it was based on the accomplice instructions given and the evidence that Ford held a knife on D’Agostino during the robbery. We cannot agree questions from the jury focusing on Wims’s conduct logically support the inference the jury found the 12022(b) allegation true as to him based on Ford’s conduct. In view of the evidence Wims did personally use a knife during the robbery, his speculations about the jury’s deliberative processes do not justify the conclusion further instructions on section 12022(b) would, to a reasonable probability (People v. Watson, supra, 46 Cal.2d at p. 836), have brought about a more favorable verdict.
Our examination of the record likewise reveals no reasonable probability of prejudice as to defendant Ford’s section 12022(b) enhancement. Four witnesses testified Ford brandished a knife. Both victims testified Ford held the knife in D’Agostino’s face and threatened to “cut” him. Ford was found with a knife shortly after the robbery, which the victims said resembled the one he used in the robbery. Ford argued only that he never participated in the robbery at all, not that D’Agostino’s alleged attacker lacked a knife. The evidence did not permit a conclusion that Ford displayed a knife without menacing intent. We conclude that even had the court informed the jury of the elements of a section 12022(b) enhancement, it is not reasonably probable they would have found that allegation to be not true as to defendant Ford.
Conclusion
For the foregoing reasons, the judgment of the Court of Appeal is reversed insofar as it reversed imposition of the section 12022(b) sentence enhancements of defendants Wims and Ford. In other respects, the judgment of the Court of Appeal is affirmed.
Lucas, C. J., Arabian, J., Baxter, J., and George, J., concurred.
Hereafter section 12022(b). Unlabeled statutory references are to the Penal Code.
At relevant times, section 12022(b) read in its entirety: “Any person who personally uses a deadly or dangerous weapon in the commission or attempted commission of a felony shall, upon conviction of such felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of one year, unless use of a deadly or dangerous weapon is an element of the offense of which he or she was convicted. [¶] When a person is found to have personally used a deadly or dangerous weapon in the commission or attempted commission of a felony as provided in this subdivision and the weapon is owned by that person, the court shall order that the weapon be deemed a nuisance and disposed of in the manner provided in Section 12028.”
Gipson has not appealed.
The portion of the verdict form respecting section 12022(b) read, in its entirety:
“We further find the Use of Deadly Weapon Allegation (Violation of Penal Code Section 12022(b) [)] to be____________”
True [or] Not True
In pertinent part, section 969c provides: “If the defendant pleads not guilty of the offense charged in any count which alleges that the defendant used a weapon or was armed with a firearm, the question whether or not he used a weapon or was armed with a firearm as alleged must be tried by the court or jury which tries the issue upon the plea of not guilty. If the defendant pleads guilty of the offense charged the question whether or not he used a weapon or was armed with a firearm as alleged must be determined by the court before pronouncing judgment.” (Italics added.)
Justice Kennard, in her concurring and dissenting opinion, directs our attention to People v. Superior Court (Mendella) 33 Cal.3d 754 [191 Cal.Rptr. 1, 661 P.2d 1081] (Mendella) for its discussion of “the historical antecedents of enhancements.” (Conc, and dis. opn. of Kennard, J., post, p. 324.) Mendella is not apposite. We held there only that an enhancement allegation may be challenged by a motion to dismiss under section 995, basing our holding on “practical and policy considerations” and prior state court practice (Mendella, supra, 33 Cal.3d at pp. 760-763), not on the federal Constitution. We said nothing about jury rights or burdens of proof; nor did we question the distinction between a substantive offense and an enhancement. Rather, acknowledging the distinction, we noted simply that section 995 contained no language restricting its application to substantive offenses. (33 Cal.3d at p. 758.)
For example:
(1) Section 12022(b) enhances a convicted felon’s sentence “unless use of a ’deadly or dangerous weapon is an element of the offense of which he or she was convicted.” (Italics added.) That it used the italicized language plainly demonstrates our Legislature understood that, contrary to the dissent’s assertion, the conduct upon which this sentence enhancement is based is not “in essence, part of the [underlying] criminal offense. . . .” (Cone, and dis. opn. of Kennard, J., post, at p. 318.)
(2) Based upon “circumstances in mitigation of the additional punishment,” under section 1170.1, subdivision (h), “the court may strike the additional punishment” for numerous enhancements, including section 12022(b). By contrast, under our determinate sentencing laws, when a defendant is convicted of a substantive offense the court is generally bound to impose punishment within prescribed ranges. (See § 1170.)
(3) A defendant who pleads guilty to the underlying offense has no right to a jury trial on a section 12022(b) enhancement. (See § 969c.) By contrast, a defendant charged with two substantive offenses obviously may plead guilty to one of them without losing his federal constitutional right to a jury trial on the other. That the Legislature created only a conditional jury trial right for section 12022(b) enhancements demonstrates it understood such a right was not constitutionally compelled and that the enhancement was not intended to be (or to function as if it were) equivalent to a substantive offense.
Contrary to defendants’ suggestion, our decision in People v. Cummings, supra, 4 Cal.4th 1233, does not govern this case. Cummings involved instructional error on the elements of a crime; this case involves instructional error on the elements of a sentencing provision. As discussed, it is “settled a defendant does not have a constitutional right to jury trial on penalty.” (People v. Robertson (1989) 48 Cal.3d 18, 36 [255 Cal.Rptr. 631, 767 P.2d 1109], citing Spaziano v. Florida, supra, 468 U.S. 447.) In Cummings itself, we relied on this principle. In considering whether instructional error “as to the elements of the offense” of robbery was federal constitutional error, we contrasted the situation before us (involving “instructional error on the elements of a crime”) with our earlier decision in People v. Odle, supra, 45 Cal.3d 386, which involved instructional error on the elements of a special circumstance allegation. (4 Cal.4th at pp. 1312-1313.) We stated, “there is no constitutional right to a jury trial on [the special circumstance] issue which, but for the statutory mandate, would be a sentencing issue.” (People v. Cummings, supra, 4 Cal.4th at p. 1313.) Similarly, in this case, we face error in instructing, not on the elements of a crime, but on the elements of a sentencing provision.
To the extent People v. White (1987) 188 Cal.App.3d 1128, 1136 [233 Cal.Rptr. 772] is inconsistent with this conclusion it is hereby disapproved.