What is the test for a jury to acquit a defendant of a charge of first degree murder for an unlawful killing?

⁴ While felony murder does not require malice, the jury in this case rejected that theory when it acquitted defendant of both first degree murder and attempted robbery and found the robbery-murder special circumstance not true. (People v. Gonzalez (2012) 54 Cal.4th 643, 654, 142 Cal.Rptr.3d 893, 278 P.3d 1242.)

⁵ Voluntary manslaughter is not at issue in this case.

⁶ An unlawful killing may also amount to involuntary manslaughter under a misdemeanor-manslaughter theory ( 192, subd. (b) ), but that rule is not at issue here. (See, e.g., People v. Lee (1999) 20 Cal.4th 47, 6061, 82 Cal.Rptr.2d 625, 971 P.2d 1001 [court erred in failing to instruct sua sponte on misdemeanor-manslaughter theory of involuntary manslaughter].)