Does the omission of the elements of assault with a deadly weapon leave the jury with an all or nothing choice between conviction or acquittal?

Contrary to Furlan's position, omission of the elements of assault with a deadly weapon did not leave the jurors with an all or nothing choice between an acquittal or convicting Furlan of murder. Quite simply, the trial court's error did not withdraw involuntary manslaughter from the jury's consideration. "Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions." (People v. Lewis, supra, 25 Cal.4th at p. 646.) To reach an involuntary manslaughter verdict based on commission of assault with a deadly weapon, the jury would first have had to conclude that Furlan acted without malice, neither intending to kill nor acting in conscious disregard of danger to human life. ( 192,

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