While venue is not an element of a charged crime, it is part of the prosecution’s burden and a question of fact for the jury. Appellant argued the court committed instructional error when it failed to instruct on venue in a conspiracy, where the offenses took place in Washington and Idaho. The Ninth Circuit held “it is not for the court to determine whether venue exists, and it is error for the court to decline to give [an] instruction.” However, the error is not a structural error, and its subject to harmless error analysis. In this case, the evidence was overwhelming and it was conjecture that the jury may have been divided on the issue of where the conspiracy actually took place. (Note: This opinion conflicts with People v. Posey (2004) 32 Cal.4th 193, in which the California Supreme Court ruled that venue should no longer be a question of fact for the jury and disapproved or overruled all California cases to the extent they were contrary with that conclusion.)