What is the test for assault with intent to commit voluntary manslaughter?

5,16] In the crime of assault with intent to commit murder (Pen.Code, 217) charged in count I, the specific intents and mental states involved are: (1) intent to commit murder; (2) intent to unlawfully kill a human being; and (3) the mental state of malice aforethought. The "murder" which defendant must intend, need only be murder of the second degree. (People v. Bernard (1946) 28 Cal.2d 207, 169 P.2d 636.) Therefore, defendant need not possess the specific mental state of deliberation and premeditation required for first degree murder and no instruction need [79 Cal.App.3d 987] be given regarding the effect of diminished capacity due to voluntary intoxication on those two specific mental states.

17] Assault with intent to commit voluntary manslaughter in violation of Penal Code section 221 is a lesser included offense in the crime of assault with intent to commit murder. (People v. Moles (1970) 10 Cal.App.3d 611, 615, 89 Cal.Rptr. 226.) Therefore, modified versions of CALJIC 8.37 (manslaughter defined) and 8.41 (voluntary manslaughter absence of malice due to diminished capacity) should be given. CALJIC 17.10 (conviction of lesser included offense) should be modified to include assault with intent to commit voluntary manslaughter as a lesser included offense to

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