Does the jury instructions that the trial court relied on in its tentative order and in its final order deny defendant's petition that the jury must find that the killing was committed with either express or implied malice or otherwise implied malice?

Though the jury instructions that the trial court relied on are not in the record on appeal, the trial court explained in both its tentative order and in its final order denying defendant's petition that the jury instructions at defendant's trial required the jury to find for second degree murder the killing [was] committed with either express or implied malice. Since the jury found defendant guilty of second degree murder, they necessarily found defendant personally harbored malice aforethought. Defendant did not contest the trial court's characterization of the court file below. Rather he submit[ted] the matter on the reply previously filed. Similarly, defendant does not contest the trial court's characterization on appeal. Instead, defendant concedes his petition asserting he was convicted under either the natural and probable consequences doctrine or the felony-murder doctrine contradicted the record of his trial. Consequently, we accept it as accurate for purposes of this appeal. (Cf. Federer v. County of Sacramento (1983) 141 Cal.App.3d 184, 186 [admission in a party's brief is the equivalent of a concession that controls the disposition of the case].)

On such a record, the trial court's ruling was not erroneous.