An unlawful killing, absent malice, during the commission of an inherently dangerous felony, even if unintentional, is voluntary manslaughter. After arguing with his girlfriend, Garcia drank a quantity of beer and fortified wine and then walked to the store to purchase additional wine. On the way, he encountered two men and struck one of them in the eye. He walked back to the girlfriend’s house, argued with her, and then left for the store again, this time carrying a shotgun. At the store, he became involved in an altercation with Gonzalez. According to Garcia’s testimony, Gonzalez lunged at Garcia, and, reacting, Garcia struck Gonzalez with the butt of the shotgun. Gonzalez fell to the ground and struck his head and died. The trial court refused to instruct on involuntary manslaughter, instead instructing on second degree murder and voluntary manslaughter, and the jury convicted Garcia of voluntary manslaughter. Rejecting appellant’s claim that it was error not to instruct on involuntary manslaughter, the appellate court found that because Gonzalez’s death did not occur in the commission of a dangerous misdemeanor or a lawful act in an unlawful manner or without due caution, it did not fall within the statutory definition of involuntary manslaughter. Because appellant unquestionably committed an inherently dangerous felony, assault with a firearm, that resulted in death, it was proper to not instruct on involuntary manslaughter (People v. Benavides (2005) 35 Cal.4th 69). The court also found no error in the imposition of the upper term for the manslaughter and gun enhancement as it was based, in part, on appellant’s prior convictions. (People v. Black (2007) 41 Cal.4th 799.)