What is the test for a jury to find a defendant guilty of second degree murder on a charge of involuntary manslaughter?

Vargas also argues the trial court should have sua sponte given an instruction on involuntary manslaughter, which he did not request. A trial court has a duty to instruct on a lesser included offense on its own initiative, if substantial evidence supports it. (People v. Brothers (2015) 236 Cal.App.4th 24, 29.) We review de novo the failure to give an instruction sua sponte, considering the evidence in the light most favorable to Vargas. (Id. at p. 30.)

Involuntary manslaughter is the unlawful killing of a human being without malice. ( 192.) Malice is express when the evidence shows a deliberate intention to kill, and is implied when the defendant engages in conduct dangerous to human life, knows that the conduct endangers the victim's life, and acts with a conscious disregard for life. (People v. Brothers, supra, 236 Cal.App.4th at p. 30.)

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Vargas acknowledges that he cannot rely on his voluntary methamphetamine intoxication to negate malice and reduce a charge of murder to involuntary manslaughter. (See former 22, subd. (b), as amended (Stats. 1995, ch. 793, 1), now 29.4, subd. (b), as amended (Stats. 2012, ch. 162, 119).) After section 22, subdivision (b) was amended in 1995, it is no longer proper to instruct a jury that a defendant who kills another without premeditation, deliberation, and intent to kill as the result of voluntary intoxication is guilty of involuntary manslaughter. (People v. Turk (2008) 164 Cal.App.4th 1361, 1376.) "[A] defendant who unlawfully kills without express malice due to voluntary intoxication can still act with implied malice, which voluntary intoxication cannot negate. . . . To the extent that a defendant who is voluntarily intoxicated unlawfully kills with implied malice, the defendant would be guilty of second degree murder" (id. at pp. 1376-1377), as the jury found in this case.