What is the test for a defendant to argue that he did not have the intent to kill in the heat of passion?

"[A] trial court must instruct a criminal jury on any lesser offense 'necessarily included' in the charged offense, if there is substantial evidence that only the lesser crime was committed." (People v. Birks (1998) 19 Cal.4th 108, 112.) "When relying on heat of passion as a partial defense to the crime of attempted murder, both provocation and heat of passion must be demonstrated." (People v. Gutierrez (2003) 112 Cal.App.4th 704, 709.) Thus, the bare fact defendant claimed that he lacked the intent to kill is not sufficient evidence to impose a sua sponte duty on the trial court to instruct on attempted voluntary manslaughter. Because there was no substantial evidence of either provocation or heat of passion, and defendant does not attempt to demonstrate otherwise, the court did not err by not instructing on the lesser offense of attempted voluntary manslaughter. (Id. at p. 710.)

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