What is the prosecution's argument that defendant was not guilty of express-malice murder but at most of murder with implied malice?

The prosecution's theory that defendant was not guilty of express-malice murder, but at most of murder with implied malice, became clear at closing argument, at which time the prosecutor perceptively told the jury, "Remember, he didn't have the intent to kill. There's no question that he had no intent to kill. And you'll receive an instruction explaining that to you." He then quoted the instruction and stated, "Consequently, you are being told by the law don't try [to] figure that the traffic collision--that the traffic violation that caused this death was the intentional act, because it's never going to be intentional in these types of murders. Never will be." (Italics added.) Although the argument itself does not carry any legal authority (see People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8, 7 Cal.Rptr.2d 564, 828 P.2d 705), it, combined with the instructions viewed as a whole, allows me to fairly conclude the murder case proceeded to the jury only on the basis of implied malice and general intent.

With this posture of the case in mind, I turn to defendant's claims of error.

Defendant first contends that sections 22, 187 and 188 permit him to introduce evidence of his voluntary drunkenness to counter a charge of implied-malice murder, whether or not implied-malice murder is a specific intent crime. Citing the well-established principle that a construction making some words redundant is to be avoided (e.g., People v. Woodhead (1987) 43 Cal.3d 1002, 1010, 239 Cal.Rptr. 656, 741 P.2d 154), defendant argues that section 22 must permit him to introduce evidence of voluntary intoxication to negate the mental state required for implied-malice murder because "If section 22 applied only to express malice murder, there would have been no reason for the drafters to include 'malice aforethought' as an enumerated mental state because express malice is identical to a specific intent to unlawfully kill."