Is a failure to give the requested instructions on voluntary manslaughter a harmless error?

Therefore, the factual question posed by the omitted instruction was not necessarily resolved adversely to defendant under other, properly given instructions. (People v. Edwards, supra, 39 Cal.3d at pp. 116-117, 216 Cal.Rptr. 397, 702 P.2d 555.) That being so, it cannot be said that the failure to give the requested instructions on voluntary manslaughter was harmless error; thus, appellant's conviction for second degree murder must be reversed. (Ibid.)

"Although defendant's convictions cannot stand, it does not necessarily follow that the judgment must be unconditionally reversed. 'An appellate court is not restricted to the remedies of affirming or reversing a judgment. Where the prejudicial error goes only to the degree of the offense for which the defendant was convicted, the appellate court may reduce the conviction to a lesser degree and affirm the judgment as modified, thereby obviating the necessity for a retrial.' " (People v. Edwards, supra, 39 Cal.3d at p. 118, 216 Cal.Rptr. 397, 702 P.2d 555.)

The People, however, are entitled to try to obtain another conviction for second degree murder. The record contains sufficient evidence to justify the attempt. On the other hand, the prosecution may decide that it is satisfied with voluntary manslaughter. Therefore, our disposition preserves these two options. (See People v. Edwards, supra, 39 Cal.3d at p. 118, 216 Cal.Rptr. 397, 702 P.2d 555; People v. Garcia (1972) 27 Cal.App.3d 639, 647-648, 104 Cal.Rptr. 69.)