The opinion
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.