The trial court did not err when it failed to instruct the jury regarding involuntary manslaughter due to voluntary intoxication. In an appeal from his second degree murder conviction, Turk contended that the trial court erred in failing to instruct the jury sua sponte regarding involuntary manslaughter stemming from voluntary intoxication. The appellate court found no error because the instruction was an incorrect statement of California law. It is no longer proper to instruct a jury that when a defendant as a result of voluntary intoxication kills another without premeditation and/or without intent to kill, the resultant crime is involuntary manslaughter. The instruction is incorrect because a defendant who unlawfully kills without express malice due to voluntary intoxication can still act with implied malice, which voluntary intoxication cannot negate. The trial court properly instructed pursuant to CALCRIM No. 625 that it could consider voluntary intoxication on the issue of premeditation or intent to kill. However, the prosecutor presented evidence from which the jury could have found that Turk acted with implied malice. Therefore, the court was not required to give a lesser-included-offense instruction on the theory of involuntary manslaughter. Further, there was insufficient evidence of Turk’s unconsciousness to warrant an involuntary manslaughter instruction premised on voluntary intoxication.
The jury was properly instructed with CALCRIM No. 625. Turk also contended that while CALCRIM No. 625 instructed the jury that it could not consider his voluntary intoxication in determining whether he acted with the intent to kill, it implied that the jury could not consider his voluntary intoxication in determining whether he acted with malice. The appellate court rejected the argument, finding that the trial court properly instructed the jury with CALCRIM No. 625. The Supreme Court has repeatedly stated that express malice and intent to kill are, in essence, one and the same.