Opinion
BAXTER, J.
The sole question presented in this case is whether the Court of Appeal erred in concluding that even though the evidence was sufficient to support a conviction of second degree murder (Pen. Code, § 187),1 defendant’s conviction of voluntary manslaughter (§ 192, subd. (a)) must be reversed because evidence of provocation was insufficient.
The Court of Appeal held that defendant’s request for a voluntary manslaughter instruction was not invited error which precluded his appellate claim, It also held that the evidence was not sufficient to establish that defendant acted under provocation by the victim and thus did not support a conviction of voluntary manslaughter. Finally the court held that, because the evidence warranted and the jury might have convicted defendant of involuntary manslaughter had an instruction on misdemeanor manslaughter (§ 192, subd. (b)) been given, the error in permitting the jury to return a voluntary manslaughter verdict was not favorable to defendant within the reasoning of People v. Powell (1949) 34 Cal.2d 196 [208 P.2d 974] (Powell). The Court of Appeal therefore reversed the conviction with directions that a conviction of involuntary manslaughter be entered.
[52]*52We conclude that the Court of Appeal erred in doing so. Both sides agree that the evidence was sufficient to support conviction of second degree murder. The verdict establishes that, in convicting defendant of voluntary manslaughter under the instructions it was given, the jury necessarily found all of the facts necessary to establish second degree murder even if the jury believed that malice was negated by heat of passion or intoxication. Although the trial court erred in failing to instruct on the misdemeanor manslaughter form of involuntary manslaughter, that error could not have prejudiced defendant because the involuntary manslaughter instructions that were given permitted conviction of that offense if the jury found only an unlawful, unintentional killing without malice.
In these circumstances Powell does apply. If there was error in instructing on voluntary manslaughter, that error was favorable to defendant, as was any error in returning a verdict of voluntary manslaughter. Defendant may not complain on appeal about errors favorable to him.2
We shall, therefore, reverse the judgment of the Court of Appeal.
I
Trial and Conviction
The tragic events which led to this conviction occurred after defendant and the victim, his wife Mee Nor, hosted a Chinese New Year’s party in their home on February 14, 1991.3 Their two young daughters, Mary and Susan, two friends of daughter Mary, and Mary’s teacher, Manuel Bella, were present. Defendant did not appear to harbor any anger toward his wife, but he drank heavily from a bottle of cognac he had purchased that day. The 750-milliliter bottle had not been opened until dinnertime, but defendant had consumed half of the bottle before Bella arrived and the group sat down for [53]*53dinner. Bella arrived at the Lee home at 6:30 p.m. At that time defendant appeared to be his usual self. Before they sat down to eat defendant had at least two glasses of cognac. As the food which defendant had prepared was ready, the group sat down for dinner within five to ten minutes of the time Bella arrived. The mood was happy and Bella observed no hostility between defendant and his wife.
Bella had only one small drink. Defendant drank throughout the evening. He became emotional and told Bella he had lost his job. He appeared depressed. As the evening progressed defendant became less coherent, his eyelids drooped, and he began to nod. He tried but was unable to stand and escort Bella to the door when Bella left shortly before the shooting. The cognac bottle was empty or almost empty at the end of dinner.
After Bella left, 12-year-old Mary saw her parents arguing and pushing each other. The couple argued almost daily, but on this occasion their voices were low and soft and Mary could not hear what they argued about. Defendant appeared different to Mary, as if he were “possessed by a spirit.” He had a blank stare and was staggering.
Defendant went to the bedroom, staggering and falling against the wall, and returned two or three minutes later with his handgun, a .357 magnum Smith & Wesson. He pulled Mee Nor from the kitchen sink, where she was washing dishes, into the hallway, where the couple continued to push each other with the gun between them. Mary went back to her bedroom, heard her parents arguing, and then heard a shot. When she came out of her room, she saw her father holding Mee Nor who was lying on the floor, begging her not to die. The gun was on the floor. Mee Nor had died instantly from a contact or near contact gunshot to the head just above her eye. Defendant’s eyeglasses and the empty cognac bottle were found on the dining table. Each had blood on them. At 2:20 a.m. on February 15, the day after the shooting, defendant had a blood-alcohol level of .26 percent.
An expert testified that at the time of the shooting defendant’s blood-alcohol level was between .33 and .39 percent.4 At that level an individual has confusion, severe muscular incoordination, difficulty in walking and talking, and loss of critical judgment. It is a level of blood alcohol at which an individual can be approaching unconsciousness, a comatose state, or even death. A person who drank alcohol on a regular basis would have a greater [54]*54tolerance than an inexperienced drinker and would be able to function in what appears to be a reasonably normal way. The level of impairment would be the same, however, in the regular drinker and nondrinker at the same blood-alcohol level.
Defendant was charged with murder. The information also alleged that in the commission of the offense he had used a firearm (§ 12022.5, subd. (a)) and that the offense was a serious felony within the meaning of section 1192.7, subdivision (c)(8). At the close of the evidence the jury was instructed on murder.
Both the prosecution and the defense requested instructions on voluntary manslaughter. The trial court instructed the jury that voluntary intoxication could negate any specific intent or mental element of murder or voluntary manslaughter. Subsequently, in defining voluntary manslaughter the court instructed that if malice was lacking, an unlawful killing could be voluntary manslaughter even if the killing was intentional. The court then instructed that there was no malice if the killing occurred on sudden quarrel or heat of passion, going on to explain the provocation necessary to justify finding sudden quarrel or heat of passion. Three instructions told the jury intent to kill was an element of voluntary manslaughter.
The court then instructed that an unlawful killing without malice aforethought and without intent to kill was involuntary manslaughter. The court instructed that a killing was unlawful within the meaning of the instruction if committed during an ordinarily lawful act that posed a high risk of death or great bodily harm without due caution and circumspection, a criminal negligence theory of involuntary manslaughter. The court also instructed that a killing by a person who was unconscious as a result of voluntary intoxication was involuntary manslaughter. The court did not instruct on the “misdemeanor manslaughter” form of involuntary manslaughter, however. The omitted instruction, part of CALJIC No. 8.51, would have advised the jury that “If a person causes another’s death, while committing a misdemeanor or infraction which is dangerous to human life under the circumstances of its commission, the crime is involuntary manslaughter.”
Defense counsel argued that if defendant killed his wife there was no malice. Therefore, the killing could only be manslaughter. She argued that the evidence showed at most the elements of involuntary manslaughter. She suggested that defendant was unconscious as a result of intoxication and, under the applicable law, his offense was involuntary manslaughter.
During deliberations the jury requested that the testimony of the defense expert on toxicology who had described the effects of intoxication be reread.
[55]*55The jury first returned a verdict of not guilty of first degree murder and reported itself unable to reach a unanimous verdict on second degree murder. The court then reread CALJIC No. 8.72: “If you are satisfied beyond a reasonable doubt that the killing was unlawful but you have a reasonable doubt whether the crime is murder or manslaughter, you must give the defendant the benefit of such doubt and find it to be manslaughter rather than murder.” After further jury inquiries regarding the meaning of “conscious disregard for human life and the instruction defining second degree murder,” the jury returned verdicts of not guilty of second degree murder and guilty of voluntary manslaughter, also finding true the charge that defendant personally used a firearm in the commission of that offense.
Defendant appealed.
II
Appeal
On appeal defendant contended that there was insufficient evidence to support the verdict of voluntary manslaughter and that the trial court erred in failing to give complete instructions on involuntary manslaughter. In support of the first claim, he argued that the evidence was not sufficient to establish an intent to kill or provocation. In support of the second, he argued that the omission of an instruction on misdemeanor manslaughter prevented the jury from finding that he had committed misdemeanor manslaughter on a theory that the killing occurred during the brandishing of a firearm in violation of section 417, subdivision (a)(2), a misdemeanor.5 Relying on People v. Williams (1975) 13 Cal.3d 559, 564 [119 Cal.Rptr. 210, 531 P.2d 778], and People v. McManis (1972) 26 Cal.App.3d 608, 614 [102 Cal.Rptr. 889], he argued that his failure to request that the instruction be given on the basis of section 417 was irrelevant as the court was obligated to give that instruction sua sponte.
It was more likely, defendant argued, that the jury would believe that in holding the weapon during the pushing and shoving exchange, he committed a misdemeanor that was inherently dangerous to human life than it was that the jury would believe that the killing occurred while he was engaging in an ordinarily lawful act which involves a risk of death or great bodily harm without due caution or circumspection.
[56]*56The Court of Appeal held that the evidence was sufficient to support a jury finding of intent to kill. It nonetheless reversed the judgment of conviction on the ground that a reasonable trier of fact could not find the evidence sufficient to establish that the killing occurred “upon a sudden quarrel or heat of passion” (§ 192, subd. (a)) because there was no evidence that the quarrel was induced by provocation. (People v. Saille (1991) 54 Cal.3d 1103, 1114 [2 Cal.Rptr.2d 364, 820 P.2d 588].) Relying on People v. Williams (1969) 71 Cal.2d 614, 624 [79 Cal.Rptr. 65, 456 P.2d 633], the court reasoned that, as an element of the offense, provocation must be affirmatively demonstrated, not left to speculation. The voluntary manslaughter verdict was, therefore, “legally insupportable.”
The Court of Appeal rejected the People’s argument that defendant could not obtain a reversal on the basis of an error that was favorable to the defendant. (See Powell, supra, 34 Cal.2d at p. 205.) That rule was inapplicable, the court reasoned, because the evidence did not indisputably establish as it had in Powell that if the defendant, who had been convicted of manslaughter, was guilty of any crime it was second degree murder, making the error there one that was favorable to the defendant. In this case there was a “distinct possibility” that defendant’s offense was no more than involuntary manslaughter. However, the trial court had also erred in giving instructions on involuntary manslaughter when it omitted the instruction on misdemeanor manslaughter. Because the jury did not have that option available when it brought in a verdict of voluntary manslaughter, the Court of Appeal concluded it could not determine that error in returning the voluntary manslaughter verdict was an error favorable to defendant.
The Court of Appeal reversed the judgment, reasoning that the jury had acquitted defendant of murder, the sudden quarrel/heat of passion theory of voluntary manslaughter was not supported by the evidence, and the evidence did support conviction of involuntary manslaughter. The court therefore remanded defendant to the trial court for resentencing on the lesser offense.
This court granted review to consider respondent’s arguments that (1) People v. Saille, supra, 54 Cal.3d at page 1114, holding that under section 188 malice is established whenever an intentional killing is shown, should not preclude a verdict of voluntary manslaughter when a sympathetic jury finds intent to kill, and (2) that a voluntary manslaughter conviction need not be reduced to involuntary manslaughter when it is rendered in response to instructions requested by a defendant that were not supported by the evidence and the verdict resulting from that error was favorable to the defendant.
We conclude that Powell, supra, 34 Cal.2d 196, is dispositive regardless of whether defendant’s request for the voluntary manslaughter instruction [57]*57was a tactical decision and thus invited error. Therefore, we address only the basis for our conclusion that the errors, if any, in instructing on voluntary manslaughter on sudden quarrel or heat of passion and the conviction of voluntary manslaughter were favorable to the defendant notwithstanding the omitted instruction on the misdemeanor manslaughter form of involuntary manslaughter.
III
Discussion
It has long been the rule in this state that, in the absence of prejudice, a defendant may not complain of error favorable to the defendant, including the giving of correct, but inapplicable, instructions and return of a verdict of an offense less than that which the evidence shows. (§ 1258; see Powell, supra, 34 Cal.2d at pp. 206-207; People v. Tuthill (1947) 31 Cal.2d 92, 102 [187 P.2d 16]; People v. Finch (1963) 213 Cal.App.2d 752, 777 [29 Cal.Rptr. 420]; People v. Thompson (1961) 193 Cal.App.2d 620, 626 [14 Cal.Rptr. 512]; People v. Kelley (1914) 24 Cal.App. 54, 61 [140 P. 302].)
“[E]ven if it be assumed that the trier of fact erred here when he found defendant guilty only of manslaughter, defendant cannot invoke reversal on an error which is favorable to him. [Citations.] An appellant is precluded from complaining that he was convicted of a lesser offense than the one of which he is guilty according to undisputed evidence, or according to that view of the evidence which, it indisputably appears, the trier of fact accepted.” (Powell, supra, 34 Cal.2d at pp. 205-206.)
In Powell, the defendant was charged with abortion and murder of the victim. In a nonjury trial the court found him guilty of abortion and voluntary manslaughter. On appeal the defendant argued that the court did not have the power to find him guilty of manslaughter because the evidence showed that he was either guilty of second degree murder or of no crime. The court rejected that reasoning and held that regardless of whether the verdict was simply error, or was the product of extralegal considerations such as mercy, the trier of fact had the power to return a verdict of a lesser offense than that shown either by undisputed evidence or by the version of the evidence the record demonstrated had been accepted by the trier of fact. (Powell, supra, 34 Cal.2d. at pp. 206-207.)
Defendant here argues that Powell is not applicable because in this case (1) the jury did not indisputably accept the evidence that would support a conviction of the greater offense, second degree murder, and (2) the evidence would have supported an instruction on involuntary manslaughter on a [58]*58theory that the killing occurred in the commission of the misdemeanor of brandishing a weapon, but the appropriate instruction was omitted. Unlike the circumstances in Powell, defendant argues, he was not guilty only of murder or of no offense. Thus the voluntary manslaughter verdict was not favorable to him.
For reasons discussed below, we disagree.
Before addressing the applicability of Powell to this case, we note our agreement with the Court of Appeal on two important points. The evidence was sufficient to support a finding of intent to kill and the trial court erred in failing to fully instruct on involuntary manslaughter.
A. Evidence of Intent to Kill.
In determining whether, based on the entire record, a reasonable trier of fact could conclude that the People proved the existence of an element of an offense beyond a reasonable doubt, a reviewing court considers the evidence in a light most favorable to the judgment and presumes the existence of every fact that could reasonably be deduced from the evidence. (People v. Crittenden (1994) 9 Cal.4th 83, 139 [36 Cal.Rptr.2d 474, 885 P.2d 887].) The standard is the same when a case relies in part on circumstantial evidence. “““If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’ ” [Citations.]’ ” (People v. Stanley (1995) 10 Cal.4th 764, 793 [42 Cal.Rptr.2d 543, 897 P.2d 481].)
The evidence that defendant quarreled with his wife, the quarrel escalated into shoving and pushing, defendant broke off the argument, went to another room and obtained a loaded gun, and that gun was fired at close range while in contact with the victim’s head, is clearly sufficient to support an inference that defendant retrieved and fired the gun with the intent to kill his wife.
B. Instructions.
1. Voluntary manslaughter instructions.
The Penal Code defines manslaughter as “the unlawful killing of a human being without malice.” (§ 192.) The offense is voluntary manslaughter when the killing is “upon a sudden quarrel or heat of passion.” (Id., subd. (a).) As we have explained in greater detail in People v. Breverman (1998) [59]*5919 Cal.4th 142, 154 [77 Cal.Rptr.2d 870, 960 P.2d 1094] (Breverman), manslaughter has been considered a lesser, necessarily included, offense of intentional murder. Generally, an intent to unlawfully kill reflects malice. (§ 188; Breverman, supra, 19 Cal.4th at p. 153; People v. Saille, supra, 54 Cal.3d at p. 1113.) An unlawful killing with malice is murder. (§ 187.) Nonetheless, an intentional killing is reduced to voluntary manslaughter if other evidence negates malice. Malice is presumptively absent when the defendant acts upon a sudden quarrel or heat of passion on sufficient provocation (§ 192, subd. (a)), or kills in the unreasonable, but good faith, belief that deadly force is necessary in self-defense. (In re Christian S. (1994) 7 Cal.4th 768 [30 Cal.Rptr.2d 33, 872 P.2d 574].) Only these circumstances negate malice when a defendant intends to kill. (People v. Barton (1995) 12 Cal.4th 186, 199 [47 Cal.Rptr.2d 569, 906 P.2d 531].)
Although section 192, subdivision (a), refers to “sudden quarrel or heat of passion,” the factor which distinguishes the “heat of passion” form of voluntary manslaughter from murder is provocation. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim (see In re Thomas C. (1986) 183 Cal.App.3d 786, 798 [228 Cal.Rptr. 430]), or be conduct reasonably believed by the defendant to have been engaged in by the victim. (See People v. Brooks (1986) 185 Cal.App.3d 687, 694 [230 Cal.Rptr. 86]; see also 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Crimes Against the Person, § 512, p. 579.) The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. (People v. Berry (1976) 18 Cal.3d 509, 515 [134 Cal.Rptr. 415, 556 P.2d 777]; People v. Valentine (1946) 28 Cal.2d 121, 138-139 [169 P.2d 1].) “Heat of passion arises when ‘at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.’ ” (People v. Barton, supra, 12 Cal.4th at p. 201.)
There was evidence here that defendant and Mee Nor were engaged in an argument prior to the shooting. There was no direct evidence that Mee Nor did or said anything sufficiently provocative that her conduct would cause an average person to react with deadly passion. Nor was there direct evidence that defendant acted under the influence of such passion.
Respondent argues that something Mee Nor said to defendant after the dinner guests left seemed to anger defendant as he and his wife argued and pushed each other for five minutes before the gun was fired. Respondent also [60]*60argues that defendant may have been prone to emotional instability and lacked critical judgment as a result of his intoxication, thus increasing the possibility that he reacted strongly to only modest provocation.
The test of adequate provocation is an objective one, however. The provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment. Adequate provocation and heat of passion must be affirmatively demonstrated. (People v. Sedeno (1974) 10 Cal.3d 703, 719 [112 Cal.Rptr. 1, 518 P.2d 913]; People v. Williams, supra, 71 Cal.2d 614, 624.)
We need not decide here whether the evidence of provocation was insufficient to permit a reasonable jury to find that the killing was voluntary manslaughter rather than murder on a heat of passion theory6 or whether giving the instruction on voluntary manslaughter was error (Breverman, supra, 19 Cal.4th at p. 162; People v. Steger (1976) 16 Cal.3d 539, 549 [128 Cal.Rptr. 161, 546 P.2d 665, 83 A.L.R.3d 1206]; People v. Anderson (1965) 63 Cal.2d 351, 360 [46 Cal.Rptr. 763, 406 P.2d 43]), however. We need not do so because, as explained below, even assuming arguendo that the instruction and the verdict were erroneous, any such error was favorable to defendant.
2. Involuntary manslaughter instructions.
The first instruction on involuntary manslaughter given by the court was: “Every person who unlawfully kills a human being without malice aforethought and without an intent to kill is guilty of the crime of involuntary manslaughter in violation of section 192[, subdivision] (b). In order to prove such crime, each of the following elements must be proved: One, a human being was killed; two, the killing was unlawful.” It was only after that instruction had been given that the court gave the instructions, requested by defendant, which described two circumstances in which involuntary manslaughter might be committed—criminal negligence and unconsciousness resulting from voluntary intoxication.
As noted, the trial court did not instruct on misdemeanor manslaughter—an unlawful killing without malice in the commission of an unlawful [61]*61act not amounting to felony. (§ 192, subd. (b).) That was error. As the Court of Appeal recognized, when defendant used his gun in the quarrel with Mee Nor he violated section 417, subdivision (a)(2), committing the misdemeanor offense of “brandishing” a weapon. In Breverman, supra, 19 Cal.4th at page 160, we confirmed that the duty to instruct sua sponte on lesser included offenses is not satisfied by instructing on only one theory of an offense if other theories are supported by the evidence. This obligation exists even when the defendant does not request the instruction or objects to its being given. (People v. Barton, supra, 12 Cal.4th at p. 203.) Evidence that an unlawful killing without malice occurred in the commission of an unlawful act not amounting to felony—the “misdemeanor manslaughter” theory of involuntary manslaughter—is not simply the basis for a defense. Just as evidence of “unreasonable self-defense” may establish one form of voluntary manslaughter and is not simply a defense (Breverman, supra, 19 Cal.4th at p. 159; People v. Barton, supra, 12 Cal.4th at pp. 200-201), evidence of misdemeanor manslaughter may establish another form of involuntary manslaughter. For that reason the trial court erred in failing to instruct sua sponte on that theory.
Nonetheless, we do not agree with the Court of Appeal and the dissent of Justice Mosk that because defendant was acquitted of murder, and evidence of heat of passion was insufficient to support the voluntary manslaughter verdict, a judgment of involuntary manslaughter should be imposed. Whether the voluntary manslaughter verdict should be upheld or is, as the Court of Appeal held, legally insupportable in the absence of adequate provocation is a question independent of whether the trial court erred in instructing on manslaughter. If error in giving the voluntary manslaughter instruction or in returning that verdict was favorable to defendant, he may not complain of the error on appeal and the judgment must be affirmed.
C. The Voluntary Manslaughter Conviction Was Favorable to Defendant.
Respondent asks the court to apply the Powell rule—defendant may not complain on appeal of an error favorable to the defendant or that he or she has been convicted of a lesser offense than that which the evidence indisputably accepted by the jury warranted. (Powell, supra, 34 Cal.2d at p. 206.) Defendant argues that Powell is distinguishable because, unlike the defendant in Powell, he was not guilty of murder or of no offense. The evidence was such that he might also have been convicted of involuntary manslaughter had the jury been properly instructed. We do not consider that difference dispositive. It is not so because defendant’s jury was given a general definition of involuntary manslaughter under which it could have [62]*62convicted defendant, notwithstanding the error in failing to instruct on misdemeanor manslaughter. The instructions on the criminal negligence and unconsciousness-induced-by-voluntary-intoxication forms of involuntary manslaughter were illustrative, not restrictive. After defining involuntary manslaughter simply as an unlawful, unintentional killing without malice, the court instructed: (1) “A killing is unlawful within the meaning of this instruction if it occurred ... in the commission of an act ordinarily lawful which involves a high degree of risk of death or great bodily harm without due causation and circumspection ...” and (2) “If you find that a defendant while unconscious as a result of voluntary intoxication killed another human being without intent to kill and without malice aforethought, the crime is involuntary manslaughter. When a person voluntarily induces his own intoxication to the point of unconsciousness, he or she assumes the risk that while unconscious he or she will commit acts inherently dangerous to human life or safety. Under the circumstances, the law implies criminal negligence.” Neither instruction implied that these two forms of involuntary manslaughter were exclusive.
In Breverman, supra, 19 Cal.4th at page 174, we held that article VI, section 13 of the California Constitution mandates that the court assess the impact of erroneous misdirection of a jury, including failure to instruct on one of several theories on which guilt of a lesser included offense might be found, on the basis of the entire cause, including the evidence, to determine if the error resulted in a miscarriage of justice. The error does so only if it appears reasonably probable that a result more favorable to the defendant would have been reached absent the error. (See also People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) In posttrial review of a judgment an appellate court “focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration.” (Breverman, supra, 19 Cal.4th at p. 177.) We see no basis for distinguishing an assessment of error in failing to instruct on one involuntary manslaughter theory in this case for purposes of applying Powell. We must examine the jury’s action in light of the evidence and the instructions given to determine if the voluntary manslaughter verdict was favorable to defendant.
Here, although a misdemeanor manslaughter instruction was erroneously omitted, the jury had the opportunity to convict defendant of involuntary manslaughter if it found simply an unlawful, unintentional killing, without malice. The jury nonetheless rejected the option of an involuntary manslaughter verdict, found intent to kill, and convicted defendant of voluntary manslaughter.
[63]*63The jury had been instructed three times that it must find intent to kill in order to return a verdict of voluntary manslaughter.7 The evidence supported such a finding. We conclude on that basis that the error in failing to instruct on misdemeanor manslaughter was not prejudicial. It is not likely that had it been properly instructed the jury would have returned an involuntary manslaughter verdict. Put otherwise, it is not reasonably probable that the error affected the voluntary manslaughter verdict. It does not, therefore, enter into our assessment of whether the possible errors in instructing and returning a verdict on voluntary manslaughter were favorable to defendant.
Insofar as the instruction on voluntary manslaughter as an intentional killing in the heat of passion is concerned, any error was favorable to defendant. The evidence was sufficient to support the conviction of murder. The jury necessarily found that the killing was intentional which, ordinarily, would establish malice and thus murder. The prosecutor argued that evidence showed not just second, but first, degree murder. The jury nonetheless convicted defendant of voluntary manslaughter instead of murder. The dissenting justices reason that the verdict establishes that the jury did not find malice beyond a reasonable doubt. We disagree. Regardless of the jury’s understanding of malice as an abstract concept, it did find beyond a reasonable doubt that defendant intended to kill Mee Nor. In doing so, it found malice as a matter of law. Contrary to the view of Justice Mosk, intoxication does not negate malice, which is established by intent to kill.
Defendant argues that the court should not presume that the jury which erred in finding heat of passion was nonetheless correct in finding intent. We do not assume that the jury found sufficient evidence of provocation and relied on that theory in returning the voluntary manslaughter verdict, however. It is equally or more likely that, under the instructions it was given, the jury erroneously believed that defendant’s gross intoxication negated the malice element of murder.
Before instructing on murder and manslaughter, the court instructed: “The next instruction applies to murder first, murder second, and voluntary [sic]. . . . Under the law it is the general rule that no act committed by a person [64]*64while in a state of voluntary intoxication is less criminal by reason of being in such condition. . . . However, there is an exception to this general rule, namely, where a specific intent or mental state is an essential element of a crime, in such event, you should consider the defendant’s voluntary intoxication in your determination of whether the defendant possessed the required specific intent or mental state at the time of the commission of the alleged crime.
“Thus, in the crimes charged, namely, murder first, murder second and voluntary manslaughter, a necessary element is the existence in the mind of the defendant of a certain specific intent or mental state which is included in the definition of the crimes set forth elsewhere in these instructions.
“If the evidence shows that a defendant was intoxicated at the time of the alleged crime, you should consider that fact in determining whether or not such defendant had such specific intent or mental state. If from all the evidence you have a reasonable doubt whether the defendant had such specific intent or mental state, you must find that defendant did not have such specific intent or mental state.”
Other instructions referred to malice as a “mental state” and told the jury that “[t]he distinction between murder and manslaughter is that murder requires malice, while manslaughter does not.” Another instruction told the jury that malice could be absent even though the killing was intentional: “Every person who unlawfully kills another human being without malice aforethought, but with an intent to kill, is guilty of voluntary manslaughter.” This instruction was one of three which emphasized that intent to kill was an element of voluntary manslaughter. Based on the instructions it was given the jury could reasonably conclude that, even if intent to kill was present, if voluntary intoxication was also present malice could be negated. Thus the jury was not led to believe that heat of passion was the only basis on which a voluntary manslaughter verdict could be returned. Since the evidence of gross intoxication was substantial, while evidence of heat of passion was lacking, we do not presume, as defendant suggests, that the jury erroneously concluded that the evidence of heat of passion was sufficient to negate malice. It is more likely the jury concluded that although the killing was intentional it was committed without malice because defendant was grossly intoxicated. Since intoxication could not and did not mitigate malice, the jury necessarily found beyond a reasonable doubt all of the facts necessary to a conviction of second degree murder.
When, as here, a jury necessarily finds all of the facts required for a conviction of murder, but convicts the defendant of voluntary manslaughter, [65]*65any error in that conviction is favorable to the defendant. The Powell criteria are satisfied in these circumstances. In finding that the killing was intentional, the jury indisputably found all of the facts necessary to establish second degree murder. The jury was instructed that intent to kill is an element of voluntary manslaughter. Under section 188 this intent to kill is sufficient to establish malice. Thus, the jury necessarily found an unlawful killing of a human being in which malice aforethought was present unless malice was negated by heat of passion or, under the instructions given, by voluntary intoxication. Therefore, assuming as we do that there was insufficient evidence of heat of passion to negate malice, defendant was “convicted of a lesser offense than the one of which he is guilty . . . according to that view of the evidence which, it indisputably appears, the trier of fact accepted.” (Powell, supra, 34 Cal.2d at p. 206.) He may not “invoke reversal on an error which is favorable to him.” (Id. at p. 205.)
Numerous decisions of other state courts also recognize the propriety of sustaining a conviction of voluntary manslaughter notwithstanding the absence of heat of passion when the evidence supports a conviction of murder. (See Jimmerson v. State (1925) 169 Ark. 353, 354 [275 S.W. 662, 663] [“Not being accidental, it must have been, under the facts, murder in the first degree; so that the defendant was not prejudiced by a verdict for a lower offense . . . .”]; Commonwealth v. Harry (1970) 437 Pa. 532, 535 [264 A.2d 402, 404] [“ ‘It has long been established that under an indictment for murder, a jury may return a verdict of voluntary manslaughter, though the evidence is insufficient to show passion or provocation, where the record discloses that defendant properly could have been convicted of murder.’ ”]; State v. Vega (1979) 40 N.C.App. 326, 333-334 [253 S.E.2d 94, 98-99] [“[A]s a matter of law adequate provocation could not be found to exist so as to justify submission of voluntary manslaughter . . . . [f] . . . The trial court gave the jury an opportunity which legally they should not have had, to find defendant guilty of a lesser offense. Having been found guilty of a lesser included offense not raised by the evidence, defendant could not have been prejudiced by its submission. The error was manifestly favorable to the defendant and is not reversible.”]; Patrick v. State (1969) 245 Ark. 923, 924 [436 S.W.2d 275, 276] [“[T]he accused cannot complain of such a charge [voluntary manslaughter in the absence of proof of heat of passion] if the proof would have supported a finding that he was guilty of a higher degree of homicide than that for which he was convicted.”]; O’Conner v. State (1980) 272 Ind. 460, 467 [399 N.E.2d 364, 369] [“[I]n McDonald v. State (1976) 264 Ind. 477, 483, 346 N.E. 2d 569, 574, this Court stated: ‘(I)f sufficient evidence is presented to the jury by which it could find murder in the first or second degree, the jury may also return a verdict of guilty of voluntary manslaughter, notwithstanding the absence of proof of “sudden [66]*66heat.’””]; State v. Heald (Me. 1972) 292 A.2d 200, 201 [“[A] defendant cannot be heard to complain of an error which works to his advantage. He is not thereby prejudiced. [Citations.] . . . ‘If, for some reason satisfactory to them (the jury), they mistakenly believe that an accused is not guilty of the higher grade of offense charged, and find him guilty of a lesser grade, it is difficult to see how the mitigation is harmful to the accused.’ ”]; State v. Perry (1907) 78 S.C. 184, 185 [59 S.E. 851, 852] [“There was testimony tending to show that the defendant was guilty of murder. Therefore he has no just cause to complain that the jury took a merciful view of his case, and simply found him guilty of manslaughter.”]; State v. Ellis (1950) 70 Idaho 417, 420 [219 P.2d 953, 954] [“ ‘[U]pon a charge of murder in the first degree, the jury may find a defendant guilty of manslaughter, even though there is no evidence to show the lesser rather than the greater crime.’ ”].)
Nothing in Jackson v. Virginia (1979) 443 U.S. 307 [99 S.Ct. 2781, 61 L.Ed.2d 560] (Jackson) suggests that the Powell rule is not fully consistent with federal due process demands. That opinion reaffirms the due-process-based standard of proof beyond a reasonable doubt of every element of a criminal offense, a standard established by the court earlier in In re Winship (1970) 397 U.S. 358 [90 S.Ct. 1068, 25 L.Ed.2d 368] (Winship). The Jackson court did not have before it any question related to the one we address here —whether a judgment of conviction of voluntary manslaughter may be affirmed in the absence of evidence of provocation on the ground that the jury, on sufficient evidence, necessarily found beyond a reasonable doubt all of the facts necessary to a conviction of murder. Since Jackson did no more than apply the 1970 Winship standard the decision did not, as the dissent of Justice Mosk suggests, render the Powell rule one of “dubious vitality.” (Dis. opn. of Mosk, J., post, at p. 77.) As shown above, variations of the Powell rule have continued to be applied by our sister states long after Winship. We therefore reject the argument that the voluntary manslaughter verdict in this case may not stand in the absence of evidence of provocation.
IV
Disposition
The judgment of the Court of Appeal is reversed.
George, C. J., and Chin, J., concurred.