I concur in all aspects of the majority opinion except for its analysis, in part III, of why the failure to instruct on “force” was harmless error.
I think the instructional error is per se reversible subject to specified exceptions. (People v. Ramos (1984) 37 Cal.3d 136, 146 [207 Cal.Rptr. 800, 689 P.2d 430]; People v. Garcia (1984) 36 Cal.3d 539, 554-555 [205 Cal.Rptr. 265, 684 P.2d 826].) One of the exceptions is where evidence, substantial as a matter of law, shows the matter omitted in the instruction and there is no contrary evidence worthy of consideration. (People v. Ramos, supra, 37 Cal.3d at p. 147; see People v. Thornton (1974) 11 Cal.3d 738, 768, fn. 20 [114 Cal.Rptr. 467, 523 P.2d 267]; People v. Cantrell (1973) 8 Cal.3d 672, 685 [105 Cal.Rptr. 792, 504 P.2d 1256].) Here, the victim’s testimony established the requisite force and duress by evidence substantial as a matter of law. Defendant’s defense was absolute denial, i.e., he testified he did not touch the victim at all. The jury clearly rejected that defense. In these circumstances, there is no evidence in the record worthy of consideration suggesting defendant did not use the requisite force or duress, and the instructional error is harmless. (People v. Thornton, supra, 11 Cal.3d at p. 768, fn. 20; see People v. Caldwell (1984) 36 Cal.3d 210, 224 [203 Cal.Rptr. 433, 681 P.2d 274].)
On August 7, 1985, the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied October 3, 1985. Kaus, J., and Broussard, J., were of the opinion that the petition should be granted.