Is a jury's failure to instruct on the crime of felony-manslaughter harmless?

Given defendant's testimony and the assumption that felony-manslaughter is an offense, the trial court erred by not instructing on the crime of felony-manslaughter, because defendant described a killing and attempted killings that were committed without malice during the commission of inherently dangerous felonies. However, a failure to instruct on a lesser included offense is harmless if the factual question posed by the omitted instruction was necessarily resolved by the jury on other properly given instructions or, if an examination of the record establishes no reasonable probability that the error affected the outcome of the case. (People v. Sakarias (2000) 22 Cal.4th 596, 620-621.) Defendant encourages this court to apply the federal harmless beyond a reasonable doubt standard, because he asserts his constitutional rights have been implicated by the error. We will apply the federal standard, since the error is harmless even under this stricter standard. (See id. at p. 621 [presenting the federal standard].)

The question of whether defendant planned to murder the victims or whether the killings were an incidental part of the assaults was presented to, and resolved by, the jury. (See People v. Sakarias, supra, 22 Cal.4th at p. 621.) The jury was asked whether the murder was first degree, second degree, or involuntary manslaughter. The jury found defendant guilty of first degree murder. The jury was instructed that a first degree murder finding meant defendant "acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the act that caused death."

Page 15