People v. Lemus , 249 Cal. Rptr. 897 ( 1988 )

BENKE, J.

I concur in the result.

The rule of People v. Modesto (1963) 59 Cal.2d 722 [31 Cal.Rptr. 225, 382 P.2d 33], which rests upon the California Constitution, requires the result reached herein. On this basis I agree with the majority opinion. However, I am reluctant to agree that Rose v. Clark (1986) 478 U.S. 570 [92 L.Ed.2d 460, 106 S.Ct. 3101], and People v. Lee (1987) 43 Cal.3d 666 [238 Cal.Rptr. 406, 738 P.2d 752], which embody federal principles, require per se reversal in this case, where an instruction not involving an element of the offense is involved.