What is the legal test for instructing a jury on a lesser included offense in a second degree murder case?

Appellants contend the trial court erred in refusing to instruct on second degree murder as a lesser included offense to felony murder. Respondent acknowledges that under the accusatory pleading test, second degree murder is a lesser included offense of the offense that was charged in count 1, first degree murder with malice aforethought. (People v. Banks (2014) 59 Cal.4th 1113, 1160.) Respondent argues, however, that an instruction on a lesser included offense is not required where, as here, there is no substantial evidence that only the lesser offense, but not the greater, was committed. We conclude respondent is correct.

The rule in criminal cases is that "a trial court must instruct on the general principles of law relevant to the issues the evidence raises. (People v. Breverman (1998) 19 Cal.4th 142, 154.) "'"That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]"'" (Ibid.) '[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.]' (Id. at p. 162.)" (People v. Taylor (2010) 48 Cal.4th 574, 623, italics omitted.)