What is the test for determining whether a jury convicted a defendant of second degree murder of his ex-wife and her unborn child?

Relying on People v. Dennis (1998) 17 Cal.4th 468, 71 Cal.Rptr.2d 680, 950 P.2d 1035, defendant asserts that this court has held or assumed that implied malice must be shown separately with respect to the fetus. In Dennis, the defendant killed his ex-wife, who was eight months pregnant, and her fetus with a machete-like weapon. As a result of cuts to the mother's abdomen, the fetus was expelled and suffered severe chopping wounds. (Id. at pp. 489, 495-496, 71 Cal.Rptr.2d 680, 950 P.2d

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1035.) The jury convicted defendant of the first degree murder of the mother and second degree murder of the fetus. (Id. at p. 489, 71 Cal.Rptr.2d 680, 950 P.2d 1035.) In connection with defendant's claim that his penalty was disproportionate, we stated, "Defendant notes the jury made no express finding of his premeditation, deliberation, or intent to kill the fetus, and he suggests the jury's verdict may even imply a finding he was unaware of the fetus's existence. We disagree. The jury's verdict of second degree murder necessarily found that at the very least, defendant bore implied malice toward the fetus. [Citation.] The jury was so instructed." (Id. at p. 512, 71 Cal.Rptr.2d 680, 950 P.2d 1035.) In connection with defendant's claim of instructional error, we stated, "[t]he instructions made plain that malice was a separate element that had to be proved for each of the two murders charged. The trial court instructed the jury that a verdict of guilt of the alleged fetal murder required a finding that defendant killed the fetus with malice aforethought.... It is not reasonably likely the instructions misled the jury into thinking it could convict defendant of two murders while finding malice aforethought only as to one victim's death." (Id. at pp. 514-515, 71 Cal.Rptr.2d 680, 950 P.2d 1035.)

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