When will a defendant be found guilty of second degree murder based on implied malice or involuntary manslaughter?

We agree with defendant's legal claim: "[T]he essential distinction between second degree murder based on implied malice and involuntary manslaughter is the subjective versus objective criteria to evaluate the defendant's state of mindi.e. if the defendant commits an act which endangers human life without realizing the risk involved, he is guilty of manslaughter, whereas if he realized the risk and acted in total disregard of the danger, he is guilty of murder based on implied malice." (People v. Cleaves (1991) 229 Cal.App.3d 367, 378.) But we strongly disagree that there was any substantial evidence defendant killed his daughter by committing an act dangerous to human life "without realizing the risk involved[.]" (Ibid.)

This case is factually and procedurally similar to People v. Evers (1992) 10 Cal.App.4th 588 (Evers). In that case the two-year-old victim was killed by either violent shaking, or "a substantial impact, equivalent at least to a 10-foot drop and possibly a 20- to 30-foot fall." (Id. at p. 593.) The court rejected the claim that Evers had been entitled to involuntary manslaughter instructions, as follows: