What is the test for instructing a jury on the theory of manslaughter?

The contention that the trial court erred in failing to instruct the jury on manslaughter is without merit. To the extent the contention is based on the assumption that there is evidence of diminished capacity, [61 Cal.App.3d 207] our discussion of that subject is dispositive. It is further contended that an instruction on manslaughter as a necessarily included offense must always be given in a trial on the charge of murder. That is not accurate. An instruction on manslaughter is not required where the evidence does not support it. Here there is no such evidence. The basic posture of the defense was to put respondent to its proof. No appellant testified concerning intent, no evidence was produced to show whether or not any appellant was under the influence of an intoxicant or narcotic and no evidence suggested that any appellant was legally incompetent. The trial court was justified in refusing to instruct the jury on the theory of manslaughter. (People v. Preston (1973) 9 Cal.3d 308, 319, 107 Cal.Rptr. 300, 508 P.2d 300; People v. Thomas (1962) 58 Cal.2d 121, 127, 23 Cal.Rptr. 161, 373 P.2d 97, appeal dism'd, cert. den., 371 U.S. 231, 83 S.Ct. 327, 9 L.Ed.2d 495.)