What is the test for implied malice in the description of a first degree felony murder?

On the other hand, the trial court instructed that first degree premeditated murder required a "willful, deliberate and premeditated killing with express malice." (CALJIC No. 8.20.) The instruction continued to emphasize the intent to kill requirement. The court then instructed that first degree felony murder required only a specific intent to commit the underlying felony of robbery and that the unlawful killing could be unintentional or accidental. (CALJIC No. 8.21.) Thus, the instructions as a whole clearly conveyed to the jury that implied malice did not apply to either first degree deliberate, premeditated murder or to felony murder. (People v. Cain (1995) 10 Cal.4th 1, 36, 40 Cal. Rptr.2d 481, 892 P.2d 1224.)

Finally, the verdicts revealed that the instructions did not mislead the jury. In finding the lying-in-wait special-circumstance allegation true, the jury found that defendant intentionally killed the victim. It thus necessarily found express, not implied, malice. In finding the robbery felony-murder special-circumstance allegation true, the jury found that defendant murdered the victim while engaged in the commission of robbery. Thus, there was no reasonable likelihood that the jury misunderstood the instructions as a whole. (People v. Cain, supra, 10 Cal.4th at p. 36, 40 Cal.Rptr.2d 481, 892 P.2d 1224.)