Bohana

A jury convicted Donald James Bohana of the second degree murder of Delores Velma Jackson. (Pen. Code, §§ 187, 189.) He appeals contending there is insufficient evidence that he acted with express or implied malice, the victim’s death was excusable as “committed by accident and misfortune” (§ 195), and that the trial court erred in failing to instruct the jury sua sponte on excusable homicide and involuntary manslaughter. We affirm.

Facts

In 1994 appellant was dating Delores Jackson. On the night of August 26, 1994, Jackson arrived at appellant’s house for a late dinner. At 3:34 a.m. on August 27, appellant called 911 to report that “someone fell in my pool” and was “drowning.” Paramedics arrived at the house seven or eight minutes later and found appellant kneeling near Jackson. They were both nude. Jackson was lying on her back, with her head and neck propped up against a tree several yards away from the pool. She was not breathing and had no heart beat. Although the area underneath Jackson was wet, Her skin was dry and cool to the touch, and her long hair was damp rather than wet. Jackson expelled a large amount of water and alcohol when a paramedic administered the…