I dissent.
The instructions given adequately informed the jury of the scope of the defense of diminished capacity. The jury was informed that “there is no malice aforethought if the . . . evidence shows that due to diminished capacity caused by mental illness (or) mental defect ... the defendant did not have the capacity to attain the mental state constituting malice aforethought even though the killing be intentional, voluntary, premeditated and unprovoked.” The court also defined involuntary manslaughter as “the unlawful killing of a human being without malice and without an intent to kill .... There is no malice aforethought or intent to kill if by reason of diminished capacity . . . the defendant did not have the mental capacity to harbor malice aforethought and to form an intent to kill.”
In light of these instructions, I cannot believe the jury would be misled by the instruction implying malice if the killing is “the direct causal result of an act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with wanton disregard for human life.” Clearly, the “base antisocial purpose” and the “wanton disregard for human life” relate solely to the state of mind of the defendant. Yet, if adequate diminution of capacity had been determined, defendant could hardly have a “purpose,” much less one which was “base and antisocial,” nor could his disregard for human life be “wanton.”
The majority opinion does not set out the instructions requested by defendant. As I read them, the strongest states only that malice may be implied as the court in fact instructed, merely inserting in the definition of the act of violence the phrase “committed by a person who is able to comprehend that the law prohibits such an act and who is able to comprehend his obligation to conform his conduct to such prohibition.” This request does not reach the three-step refinement proposed by the majority, nor does it add anything of significance to the instructions actually given. There is no instruction upon any subject which cannot be refined or modified to expand upon its qualifications and ramifications to the taste of somescholar of the law. Instructions, however, are not designed to give a detailed law course, but to instruct 12 laymen, in lay language, as to the fact issues they are to determine. Expansion upon them, and development of their detailed application to the facts in issue, fall properly within the field of argument by counsel, rather than instruction by the court.
*763Reversal for misdirection of the jury may be made only if the error complained of has resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.) I cannot find such a miscarriage. The issue the majority finds determinative is raised by appellant but peripherally to his contention that the instruction given (CALJIC No. 8.31) suffers from the defect found in 8.32 (People v. Ireland, 70 Cal.2d 522, 539 [75 Cal.Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323]), a contention which the majority rejects. Moreover, appellant himself did not find prejudice in the denial of a new trial. The Court of Appeal, First District, Division Four, reduced the conviction to one of manslaughter. The Attorney General petitioned for hearing in this court, and appellant’s opposition stated that the Court of Appeal decision “is a just and sound one.” Nevertheless, this court now remands the issue for new trial.
The reversal will require extended trial time—some 17 days were consumed in the present trial on the plea of not guilty. Moreover, it will require reversal of an untold number of cases already tried and now pending on appeal. Upon retrial of all those cases, the absence of a definitive instruction in the majority opinion predictably will lead to varying language choices by the several trial courts in seeking to meet the requirements of the majority holding, thus leading to diversity of opinion and still further decisions by this court to settle what language precisely meets the technical semantic standards here espoused. Of course, this burden would be readily shouldered if prejudice appeared. As pointed out above, I cannot find such prejudice here.
I would, at most, reduce the conviction to one of manslaughter, and as so reduced, affirm the conviction.
McComb, J., concurred.
Respondent’s petition for a rehearing was denied March 13, 1974. McComb, J., and Clark, J., were of the opinion that the petition should be granted.
Assigned by the Chairman of the Judicial Council.