Is a defendant's contention that his conviction for first degree murder was improper because the jury failed to instruct the jury on involuntary manslaughter?

Defendant also contends "his first degree murder conviction was improper because the jury was not instructed on involuntary manslaughter." (People v. Polley (1983) 147 Cal.App.3d 1088, 1091.) Such a claim "is normally without merit." (Ibid) Defendant's contention in this case is no exception.

Here, the jury convicted defendant of first degree murder. This shows that the jury necessarily "found express malice, i.e., the intent to kill ." (People v. DeJesus (1995) 38 Cal.App.4th 1, 22.) "[H]aving reached this factual conclusion, the jury could not have found the defendant guilty of involuntary manslaughter. [Citation.]" (Ibid) Therefore, even if the failure to give an involuntary manslaughter instruction was erroneous, that error was harmless.²¹ (Ibid.; see also People v. Polley, supra, 147 Cal.App.3d at pp. 1091-1092.)