Is there any evidence that the instruction that a defendant was either guilty of murder in the first degree or innocent in the second degree or guilty of manslaughter was incorrect?

Defendant contends that the instruction that he was either guilty of murder in the first degree or innocent 'unfairly took factual issues away from the jury,' citing People v. Modesto (1963) 59 Cal.2d 722, 31 Cal.Rptr. 225, 382 P.2d 33. In Modesto there was evidence upon which the jury could have based a verdict of voluntary manslaughter, a lesser included offense in the charge of murder. In the record before us there is no evidence

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