What is the test for a jury to find a defendant guilty of murder if there is no evidence of malice in the case?

In order to make a finding on each elemental fact needed to convict, the jury must of course be fully instructed on the elements of the crime. For that reason, instructions that omit or misdescribe an element of the offense, preventing the jury from making a necessary factual finding, are constitutionally defective. (People v. Flood, supra, 18 Cal.4th 470, 491, 76 Cal.Rptr.2d 180, 957 P.2d 869 ["The prohibition against directed verdicts for the prosecution extends to instructions that effectively prevent the jury from finding that the prosecution failed to prove a particular element of the crime beyond a reasonable doubt."].) Given the manner in which California has structured the relationship between murder and voluntary manslaughter, the complete definition of malice is the intent to kill or the intent to do a dangerous act with conscious disregard of its danger plus the absence of both heat of passion and unreasonable self-defense. Where, as here, there is sufficient evidence of heat of [19 Cal.4th 190] passion to support a voluntary manslaughter verdict, murder instructions that fail to inform the [960 P.2d 1125] jury it may not find the defendant guilty of murder if heat of passion is present are incomplete instructions on the element of malice. ⁵