What is the test for a jury to convict a defendant of a lesser, but not greater, charge of assault?

"A trial court has a sua sponte duty to instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. [Citation.] Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater , offense. The rule's purpose is ... to assure, in the interest of justice, the most accurate possible verdict encompassed by the charge and supported by the evidence. [Citation.] In light of this purpose, the court need instruct the jury on a lesser included offense only [w]hen there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of the lesser offense." (People v. Shockley (2013) 58 Cal.4th 400, 403404, 165 Cal.Rptr.3d 497, 314 P.3d 798, italics added.)

A finding of express malice requires evidence of an intent to kill, whereas a finding of implied malice requires only an "intent to do an act dangerous to human life with conscious disregard of its danger." (People v. Breverman (1998) 19 Cal.4th 142, 188, 77 Cal.Rptr.2d 870, 960 P.2d 1094.) Here, there is no substantial evidence that defendant intended

[385 P.3d 363]