What is the test for implied malice in a second degree murder case?

Malice necessary to support a second degree murder conviction may be implied 'when the circumstances attending the killing show an abandoned and malignant heart.' (Pen.Code, 188; People v. Butts, 236 Cal.App.2d 817, 827, 46 Cal.Rptr. 362.) In the present case, there was substantial evidence to support an implied finding of malice. We cannot say that the evidence of provocation, as a matter of law, rebutted the presumption of malice arising out of the intentional shootings of the victims.

Defendant's remaining contentions merit but brief comment. There is no merit to his contention that the court abused its discretion in failing to sequester the jury during trial. Sequestration is a matter resting in the [18 Cal.App.3d 554] sound discretion of the trial court. (People v. Burwell, 44 Cal.2d 16, 33, 279 P.2d 744; Pen.Code, 1121.)