Marshall

We are called upon to determine whether the complete failure to instruct a jury in a criminal ease with respect to a particular offense requires automatic reversal of a conviction on collateral review. At the outset, we emphasize that this case does not involve the failure to instruct on a single element of an offense, but the failure to instruct on any element of a particular offense. As did the district court, we conclude that the failure to give the jury any definition of an offense at all is such fundamental and basic error that it cannot be harmless.

I.

Charles D. Marshall, Warden of Pelican Bay State Prison, (“Marshall”) appeals the district court’s grant of the habeas corpus petition of Cedric Roshwan Harmon (“Harmon”). Harmon challenges two of the twelve counts of which he was convicted because no instruction at all was given to the jury in his criminal trial on any of the elements of the offense constituting those two counts. Marshall concedes, as he must, that the trial court in fact failed to give the jury any instruction with respect to the elements of the challenged offenses. Marshall further concedes that the failure to instruct amounts to constitutional error; he…