Does a failure to instruct a jury on sexual assault constitute a misdirection of the jury?

"[T]he failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility . . . such misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome." (People v. Breverman (1998) 19 Cal.4th 142, 165.)

In this case, there was conflicting testimony on whether sexual penetration occurred. In her closing argument, defense counsel argued there was insufficient evidence of sexual penetration because J.Y. did not testify that it occurred and appellant never admitted to sexual penetration in his videotaped interview. She did not argue that appellant was too drunk to have acted for the purpose of sexual arousal, gratification, or abuse. Nor did defense counsel request an instruction on voluntary intoxication. Certainly, the trial court had no sua sponte duty to instruct on voluntary intoxication, and appellant does not argue otherwise. (People v. Verdugo (2010) 50 Cal.4th 263, 295.) The jury found that appellant raped and sodomized J.Y. It is not reasonably probable that if the jury had received instructions on battery, it would have concluded that appellant committed an act of genital penetration but he did so without the requisite intent. Accordingly, we conclude that the alleged instructional omission was harmless.