Is a defendant's contention that his blood-alcohol level may have been significantly lower than 0.08 percent at the time of the accident sufficient to compel the court to instruct the jury on a lesser charge of second degree murder?

The trial court has a sua sponte duty to instruct "on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support." (People v. Breverman (1998) 19 Cal.4th 142, 162.) "[T]he existence of `any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is `substantial enough to merit consideration' by the jury. [Citations.]" (Ibid.) "`Substantial evidence is evidence sufficient to "deserve consideration by the jury," that is, evidence that a reasonable jury could find persuasive.' [Citation.]" (People v. Lewis (2001) 25 Cal.4th 610, 645.) "Speculation is an insufficient basis upon which to require the giving of an instruction on a lesser offense. [Citations.]" (People v. Wilson (1992) 3 Cal.4th 926, 941.)

Defendant's theory regarding how his blood-alcohol level could have been less than 0.08 percent at the time of the accident is based solely on speculation. (See, e.g., People v. Wilson, supra, 3 Cal.4th at p. 940 [instruction on lesser offense of second degree murder not required even though circumstantial evidence did not conclusively establish that murder was committed during the course of a robbery].) Accordingly, defendant's contention must be rejected.