I dissent. I would affirm the judgment entered after jury verdicts finding defendant guilty of first degree murder, finding him sane, and fixing the penalty at death.
In discussing the sufficiency of the evidence, the majority state that “The evidence of defendant’s other activities on the night of the murder, his possession of the deceased’s watch only a few minutes after the murder, and the multitude of other incriminating incidents and facts clearly suffice . . . to support the verdict of guilt.” Later, the opinion states that in view of the evidence that the victim suffered injuries to her inguinal area, vulva, buttock and abdomen, plus the evidence of defendant’s attempts to gain entry into the apartments of at least four other women about the time of the attack on the deceased, “The record contained at least enough evidence for a jury to conclude that the killing occurred in an attempt to commit rape.” Thus, there was substantial evidence to support the conviction of first degree murder under the felony-murder rule. The conviction is nevertheless reversed because “the court did not properly instruct the jury as to the ‘elements’ of voluntary manslaughter in a case in which the defendant asserted the defense of diminished capacity.”
Being compelled to abandon the phrase “non-statutory manslaughter” as a new crime (see fn. 1, majority opinion) the court now adds a new “element” to statutory manslaughter. The recognition that factors other than sudden quarrel or heat of passion may render a person incapable of harboring malice does not, in my opinion, add another element to the offense of manslaughter. By statutory definition, manslaughter is the unlawful killing of a human being without malice; the absence of malice disproves one of the elements of murder.
The instruction on diminished capacity to negate malice charged the jury to consider what effect, if any, it had on defendant’s ability to form any of the specific mental states that are essential elements of murder, and it charged them that if defendant’s mental capacity was so diminished that he *401did not harbor malice they could not find him guilty of murder. One of the mental states for murder is malice, and the malice that is implied in the felony-murder doctrine from the commission of a felony inherently dangerous to human life includes the specific intent to commit that felony. It follows, therefore, that if the jury had a reasonable doubt that defendant’s diminished capacity prevented him from harboring malice, it also prevented him from having the capacity to formulate the intent to commit the underlying felony.
Following the instruction on diminished capacity, the jury were instructed that if the evidence was insufficient to find, or if they had a reasonable doubt, that the killing was murder, the defendant might be found guilty of the lesser included offense of manslaughter; and if they were satisfied that the killing was unlawful but had a reasonable doubt whether the killing was murder or manslaughter they must give defendant the benefit of the doubt and find it to be manslaughter rather than murder.
Without mentioning that the above instructions were given, the majority seize upon the court’s definition of voluntary manslaughter as “the intentional and unlawful killing of a human being without malice aforethought upon a sudden quarrel or heat of passion, without deliberation or premeditation” as operating to “exclude” from the jury’s consideration other factors that might show the absence of malice. The jury were instructed “not to single out any certain sentence or any individual point or instruction and ignore the others, but... to consider all the instructions as a whole, and ... to regard each in the light of all the others.” Assuming that the jury followed this admonition, the instructions given, considered as a whole, .sufficiently informed them that if malice were rebutted by evidence of diminished capacity they could not find defendant guilty of an offense higher than manslaughter.
The majority further speculate that the jury might well have understood the instruction on diminished capacity to apply only to deliberate and premeditated first degree murder and not to the specific intents to commit rape, robbery or burglary. The facts of this case, the manner of presentation by the prosecution, and the questions asked of both psychiatrists make it improbable that the jury misunderstood the instruction. The theory of the prosecution was first degree felony murder. Referring to first degree murder as defined in section 189 of the Penal Code, the prosecutor in his argument said “the relevant part of this section as it applies to this case” is that all murder committed in the perpetration or attempt to perpetrate any of the six enumerated felonies is murder of the first degree. The defense psychiatrist, Dr. Miller, was asked on cross-examination, “Now let’s get back to the original question, Doctor, about the specific intent, the ability to formulate the specific intent to commit a robbery,” and “My question is, did Mr. Mosher have the capacity to formulate the intent to rape? ... Now *402how about on August 2d [date of attack on the deceased]? Would he have had the ability to formulate the intent to rape?” The psychiatrist who testified for the prosecution was asked: “In your examination óf Mr. Mosher, did you arrive at an opinion as to his ability to formulate the intent to rob as of the morning of August 2, 1966?” Neither psychiatrist was asked whether in his opinion defendant had the ability to premeditate or deliberate.
I disagree that defendant adduced sufficient “facts” from which the jury might have found that his capacity was so diminished that he could not harbor the intent to commit rape, robbery or burglary. The majority state as facts that defendant ate dinner at his apartment about 9 p.m., walked to a bar about 11:30, consumed five or six drinks of whiskey, and when subsequently interrogated he could not remember any of the night’s events except that he started walking home after the bar closed and while on the street police officers questioned him. The testimony relating to the time defendant ate dinner, the number of drinks he consumed, and his poor memory for the night’s events was given at the second part of the trial, on defendant’s additional plea of not guilty by reason of insanity (see Pen. Code, §§ 1026-1027) by one of the court-appointed psychiatrists who examined defendant and investigated his sanity.
At the guilt phase defendant did not testify, and the only witnesses for the defense were Mr. and Mrs. Tiner, defendant’s supervisor and his wife, and Dr. Miller, the psychiatrist employed by defendant. Dr. Miller did not examine defendant until six months after the crime. He based his opinion on defendant’s diminished capacity on an interview with defendant and his parents at that time, his review of medical reports of others, a reading of the grand jury transcript, and a conversation with the Tiners a few minutes before he took the stand. He testified that defendant told him he could account for all of his time between leaving a bar around closing time and being questioned by police officers on the street, a period of some 30 to 45 minutes. Because the time lapse did not correspond with the record of the time of defendant’s apprehension, Dr. Miller testified that this “suggested” to him the possibility of some type of amnesia. In his opinion, defendant did not have the capacity to formulate the intent to rape, or to rob, or to commit any crime. The psychiatrist who testified for the prosecution examined defendant the day of the crime, and in his opinion defendant was mentally competent to formulate the specific intent to commit a robbery, he was not mentally ill, and had “no psychiatric condition which would have prevented him from knowing what he was doing” at the time of the offense. The conflicting opinion testimony on the issue of defendant’s diminished capacity was resolved in favor of the prosecution.
In my opinion, defendant was not deprived of his constitutional right to *403have the jury determine every material issue presented by the evidence, and a review of the entire record precludes the conclusion that there has been a miscarriage of justice. (Cal. Const., art. VI, § 13.)
Mosk, J., concurred.