What is the test for a jury to convict a defendant of first-degree murder where malice was not the intent to kill in the absence of sudden quarrel or heat of passion?

court must instruct that provocation or imperfect self-defense negates malice and reduces the offense to voluntary manslaughter. (People v. Rios, supra, 23 Cal.4th at p. 463, fn. 10.) Accordingly, to say, as defendant does, that the court erroneously failed to instruct that malice is the intent to kill in the absence of sudden quarrel or heat of passion is merely a recasting of defendant's previous argument that an instruction on heat-of-passion voluntary manslaughter was required because it was warranted by the evidence. It is not a new or different issue. Moreover, the omission of an instruction explicitly stating that malice aforethought requires the absence of heat of passion or imperfect self-defense does not affect the jury's deliberations on first or second degree murder; it only affects their deliberations on voluntary manslaughter. Consequently, the absence of the instruction is irrelevant to the murder convictions.