In an attempted murder case, where supported by the evidence, the trial court has a sua sponte duty to instruct on “heat of passion.” Appellant accompanied his girlfriend to a party where the intoxicated victim became belligerent, intimidating and increasingly aggressive. After the victim insulted appellant’s girlfriend, appellant pulled a gun and shot him in the chest. The victim’s friend, who was trying to restrain the victim, received a shotgun wound to the hand from the same bullet. Appellant was convicted of attempted murder, assault with a firearm of the victim, assault with a firearm on the friend, as well as related firearm enhancements. The jury did not find that the attempted murder was willful, deliberate, and premeditated; this allegation was dismissed. At trial the defense presented evidence of self-defense, but did not ask for, nor did the court give, an instruction for guilt on attempted voluntary manslaughter if he acted under a heat-of-passion. Held: attempted murder conviction reversed. Attempted murder requires the specific intent to kill and commission of a direct act toward the killing. But when a person attempts to kill while acting upon a sudden quarrel or in the heat of passion, even if exercising a sufficient measure of thought to form an intent to kill, he acts with a mental state precluding the formation of malice. Thus, the offense of attempted murder is reduced to the lesser included offense of attempted voluntary manslaughter when the person acts in the heat of passion. Courts have a sua sponte duty to instruct on all lesser necessarily included offenses supported by the evidence. The appellate court reviews de novo and views the evidence in the light most favorable to the defendant. Here substantial evidence was presented upon which the jury could have found that appellant acted under heat of passion. Noting that whether a federal standard applies when assessing error has not yet been resolved, the court found that under the state Watson standard that the instructional error was prejudicial since there was a reasonable chance the jury would have convicted appellant of attempted voluntary manslaughter if it had been given a heat-of-passion instruction. On remand, the prosecution will have the option of retrying appellant and if it decides not to the judgment will be modified to reflect a conviction for attempted voluntary manslaughter without enhancements.