What is the test for a jury to convict a defendant of heat of passion manslaughter?

A trial court must instruct sua sponte on all lesser included offenses that are raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) The mere existence of any evidence the lesser offense was committed will not require instruction on it; an instruction is required only when there is substantial evidence of the offense. (Id. at p. 162.) " 'Substantial evidence' in this context is 'evidence from which a jury composed of reasonable persons could ... conclude[] that the lesser offense, but not the greater, was committed.' " (Ibid.)

Defendants argue the jury could have found that Daniel killed because he was provoked and acted rashly as a result of that provocation, which would meet the elements for heat of passion manslaughter. (See People v. Breverman, supra, 19 Cal.4th at p. 163.)

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But heat of passion manslaughter has both subjective and objective componentsthe defendant must subjectively experience the heat of passion, but the circumstances must also be viewed objectively: they must be " 'sufficient to arouse the passions of the ordinarily reasonable [person].' " (People v. Steele (2002) 27 Cal.4th 1230, 1252.) As stated in the instruction, "[i]t is not enough that the defendant simply was provoked. The defendant is not allowed to set up (his/her) own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment." (CALCRIM No. 570.) Under that standard, no reasonable jury could find that being evicted from an apartmenteven unfairly and under circumstances that would adversely affect the health of one's motherwould cause a person of average disposition to kill from passion, without judgment. That theory was insufficient as a matter of law to support the objective component required for heat of passion manslaughter. There was no error in not giving the instruction.