What is the test for a jury to instruct on either voluntary or involuntary manslaughter in a felony-murder case?

"The trial court must instruct on lesser offenses necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. [Citation.] On the other hand, if there is no proof, other than an unexplainable rejection of the prosecution's evidence, that the offense was less than that charged, such instructions shall not be given." (People v. Kraft (2000) 23 Cal.4th 978, 1063, 99 Cal.Rptr.2d 1, 5 P.3d 68.) Defendant contends he was entitled to an instruction on voluntary manslaughter because his intoxication "affect[ed] or reduc[ed] the intent to steal necessary for a robbery conviction, [which was] the underlying felony in the felony-murder theory." This same evidence of his alleged intoxication,

[27 Cal.Rptr.3d 417]

he claims, required the court to instruct the jury on involuntary manslaughter because it showed he was unconscious at the time of the crime. These claims are meritless. The evidence that, at the time of the murder and robbery, defendant was intoxicated was meager. There was absolutely no evidence he had, at the time of the crime, been so intoxicated that he was unable to form the basic mental intent to commit a robbery, or was rendered unconscious. (People v. Cunningham (2001) 25 Cal.4th 926, 1009, 108 Cal.Rptr.2d 291, 25 P.3d 519.) We conclude the trial court properly refused to instruct on either voluntary or involuntary manslaughter and did not violate defendant's constitutional rights thereby.

[27 Cal.Rptr.3d 417]