I respectfully dissent.
The evidence against Raymond Hayes demonstrates he shot and killed 16-year-old Terrence Clemons in a scene laid in the mad upside-down world of drug buying, selling and use. A week earlier Hayes had obtained a “sherm stick” (PCP-soaked marijuana or tobacco cigarette) from another dealer on the corner of Ocean View and Milbrae. He had attempted to drive away without paying for it. The dealer ran after Hayes and stabbed him in the neck. Hayes and his companion returned to the same corner a week later; this time Hayes was a passenger in his black Thunderbird. Hayes said he wanted a sherm stick. Clemons showed Hayes two sherm sticks. Hayes took one look at them and gave Clemons a little piece of paper. When Clemons realized the paper was not a $10 bill, he stuck his head into the passenger window and asked for his money. Hayes promptly shot him in the eye and the car sped away. The police arrived shortly thereafter (9 p.m.). They found a PCP cigarette beneath Clemons’ body. Clemons died from the gunshot wound to the head. The bullet entered through the left eye.
Discussion
I
Penal Code section 22, subdivision (b), indicates evidence of voluntary intoxication is admissible to show a defendant did not actually form a requisite intent. However, there is a problem applying that doctrine to this *527case. There is simply no evidence whatsoever of drug intoxication. On this state of the evidence—an evidentiary vacuum—the trial court properly excluded the expert testimony as to the impact of PCP intoxication on Hayes’ intent. Apparently, Hayes had told Dr. Kalish he was intoxicated due to PCP at the time of the crime. The defense, for reasons unknown, did not offer Hayes’ statements to the doctor (and to the police) regarding his state of intoxication. However, if we assume the doctor’s testimony were to be based upon Hayes’ statements, the opinion was still inadmissible. The reasons?
First, Hayes’ statements could not be admitted “for the truth asserted” because they were not offered against him as an admission as self-serving hearsay. The reliability base justifying admissibility is totally lacking. An admission is a statement by a party which is offered against the party making the statement. (Evid. Code, § 1220; People v. Williamson (1977) 71 Cal.App.3d 206, 214 [139 Cal.Rptr. 222].) Hayes’ statements would not be declarations against penal interest. The statements are self-serving, patently designed to assist him in his defense. Here, the expert could testify as to the matter told him by Hayes and base his opinion as to Hayes’ mental state upon these hearsay statements. The law does not authorize the hearsay statements to be admitted for the truth of the matter asserted, i.e., to establish the fact that Hayes was in fact intoxicated. To do so would totally negate the hearsay rule.
Where the basis of the expert’s opinion is unreliable hearsay, the courts will reject it. (See Ribble v. Cook (1952) 111 Cal.App.2d 903, 906 [245 P.2d 593] [traffic officer’s opinion as to point of impact of collision, based on what witnesses told him]; Behr v. Santa Cruz (1959) 172 Cal.App.2d 697, 705 [342 P.2d 987] [fire ranger’s official report on cause of fire which he had not witnessed, based on statements of others]; Mason v. Mason (1960) 186 Cal.App.2d 209, 215 [8 Cal.Rptr. 784] [court-appointed auditors; report based on out-of-court statements of escrow and loan officers]; Hodges v. Severns (1962) 201 Cal.App.2d 99, 108 [20 Cal.Rptr. 129]; People ex rel. Dept. of Public Works v. Alexander (1963) 212 Cal.App.2d 84, 95 [27 Cal.Rptr. 720]; Kitchel v. Acree (1963) 216 Cal.App.2d 119, 125 [30 Cal.Rptr. 714]; Witkin, Cal. Evidence, p. 369.)
An expert may base his opinion on matters made known to him at or before the hearing whether or not admissible if they are of the species or type that may reasonably be relied upon by an expert in forming an opinion upon the subject to which his testimony relates. Furthermore, it is sound law an expert may base his opinion upon information that is itself not in evidence such as a written inadmissible extrajudicial admission. (People v. Mazoros (1977) 76 Cal.App.3d 32, 44-45 [142 Cal.Rptr. 599].)
*528In a strikingly parallel case, the Supreme Court said: “Since plaintiff’s expert testimony as to the reasonableness of the charges was based on hearsay evidence inadmissible to prove that the repairs had been made, defendant’s objections to it should have been sustained. ‘[A]n expert must base his opinion either on facts personally observed or on hypothesis that find support in the evidence.’” (Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. (1968) 69 Cal.2d 33, 43-44 [69 Cal.Rptr. 561, 442 P.2d 641, 40 A.L.R.3d 1373], italics added.) (See also People v. Sundlee (1977) 70 Cal.App.3d 477, 484 [138 Cal.Rptr. 834].)
Hayes’ reliance upon In re Spencer (1965) 63 Cal.2d 400, 412 [46 Cal.Rptr. 753, 406 P.2d 33],1 in support of his position is factually inapposite. Incriminating statements made to a psychiatrist are not admissible to prove the truth of the matter asserted; they are not independent evidence in the record allowing the expert’s opinion. (People v. Cantrell (1973) 8 Cal.3d 672, 683 [105 Cal.Rptr. 792, 504 P.2d 1256], disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 685, fn. 12 [160 Cal.Rptr. 84, 603 P.2d 1]; People v. Wetmore (1978) 22 Cal.3d 318, 324, fn. 5 [149 Cal.Rptr. 265, 583 P.2d 1308]; People v. Froom (1980) 108 Cal.App.3d 820, 829 [166 Cal.Rptr. 786].)
If Hayes wished to place his mental state in issue—and thereby rely upon the defense of lack of intent due to drug intoxication—he had the burden of producing some competent evidence, not “unreliable hearsay” on that issue. (People v. Froom, supra, 108 Cal.App.3d 820; People v. Cruz (1978) 83 Cal.App.3d 308, 331 [147 Cal.Rptr. 740].) A statement admitted only as a basis for the psychiatrist’s expert opinion would not constitute such hard evidence of lack of intent.
II
I have no quarrel with the majority opinion’s conclusion the hypothetical question posed to Dr. Kalish was not properly founded on evidence in the record. The question here is whether, upon the motion for new trial, this deficiency would be corrected by the proffered evidence of relative Kenneth Hayes. I am in total disagreement with the majority opinion as to the legal impact of Kenneth Hayes’ declaration.
III
Penal Code section 1181, subdivision 8, authorizes the grant of a new trial “[w]hen new evidence is discovered material to the defendant, and *529which he could not, with reasonable diligence, have discovered and produced at the trial.” The granting or denying of a motion for new trial on grounds of newly discovered evidence is a matter wholly within the sound discretion of the trial court. Its ruling will not be disturbed except for an abuse of discretion. (People v. Martinez (1984) 36 Cal.3d 816, 821 [205 Cal.Rptr. 852, 685 P.2d 1203].) In Martinez, the Supreme Court stated; “ ‘To entitle a party to new trial on the ground of newly discovered evidence, it must appear,—“1. That the evidence, and not merely its materiality, be newly discovered; ... 3. That it be such as to render a different result probable on a retrial of the cause; . . .” ’ ” (Ibid.) Thus the statute ensures a defendant may not be wrongfully convicted because of his inability to locate potentially exculpating evidence. It may be agreed in order to achieve the overall purpose of the policy underlying the statute and standard of review, the individual requirements set forth in Martinez “may be relaxed when the newly discovered evidence would probably lead to a different result on retrial.” (Id., at p. 825, fn. omitted.)
It is argued the testimony of Kenneth Hayes is such as to make a different result probable on retrial. This is not true. Let us examine Kenneth Hayes’ precise statement.
“2. . . . Raymond Hayes came by the house with his friend, Mike, at about 5:30 p.m. and stayed about an hour and a half and then left because they were going to look for some Sherm. They left in a black T-Bird but I do not know where they went.
“3. While Raymond and Mike were at the house I saw them smoke 3 Sherm Sticks between the two of them. They offered me some but I said I did not want any.”
This evidence is insufficient as a matter of law to warrant the granting of a new trial. This is not evidence Hayes was drug intoxicated at the time of the shooting, unable to form the specific intent required for first degree murder. “The fact that a defendant has been drinking, without evidence that he became intoxicated thereby, provides no basis for an instruction on intoxication.” (People v. Sanchez (1982) 131 Cal.App.3d 718, 735 [182 Cal.Rptr. 671].) If evidence of drinking alone is legally insufficient to require a sua sponte instruction, it certainly is not evidence that would warrant the granting of a new trial. (See People v. Spencer, supra, 60 Cal.2d 64, 87; People v. Cram (1970) 12 Cal.App.3d 37, 44 [90 Cal.Rptr. 393].)
In People v. Mayberry (1975) 15 Cal.3d 143, 151 [125 Cal.Rptr. 745, 542 P.2d 1337], the Supreme Court said: “Here the evidence of diminished capacity was minimal. Miss B’s preliminary hearing testimony was incon*530sistent with her testimony at trial and was thus equivocal. No other evidence of Booker’s intoxication was presented. Furthermore, there was no evidence that he was so intoxicated that he could not form an intent to commit rape. Under the circumstances the court did not err in refusing to give the instructions. ” (Italics added.)
In People v. Barrick (1982) 33 Cal.3d 115, 132 [187 Cal.Rptr. 716, 654 P.2d 1243], there was an ingestion of marijuana and beer mixed with PCP. Barrick suggested he voluntarily consumed beer and marijuana, but he unknowingly consumed PCP that had been mixed with the marijuana, causing him to become unconscious at the time and place of the commission of the alleged offense. The Supreme Court held: “The court must give a requested instruction only if defendant proffers evidence sufficient to ‘deserve consideration by the jury, i.e., “evidence from which a jury composed of reasonable men could have concluded” ’ that the particular facts underlying the instruction did exist. (People v. Flannel (1979) 25 Cal.3d 668, 684 . . ., quoting from People v. Carr (1972) 8 Cal.3d 287, 294 . . . .) There was no direct evidence indicating unconsciousness of the defendant at the time and place of the charged offense. Moreover, there was no evidence from which the jury could reasonably infer that defendant was unconscious at the lime of the charged crime. Thus, we conclude there was no error in failing to instruct according to CALJIC No. 4.30.” (Ibid., italics added.)
The court said in People v. Carr (1972) 8 Cal.3d 287, 294-295 [104 Cal.Rptr. 705, 502 P.2d 513]: “It has been held that merely showing that the defendant consumed some alcohol prior to commission of the crime without showing the effect of the alcohol on him is not sufficient to warrant an instruction on diminished capacity. [Citations.] Similar rules should apply to the consumption of marijuana.
“In the instant case, there is no evidence as to the amount of marijuana smoked. The only evidence as to the effect on defendant of the marijuana is that it gave him courage to carry out his criminal design. Such evidence in no way negates his intent to commit his acts or his awareness of their wrongful nature. [Citation.] Although evidence that marijuana gives a defendant courage to carry out his criminal design relates to his ability to premeditate and deliberate, we are satisfied that, in the absence of evidence indicating the quantity of marijuana consumed or additional evidence reflecting the state of defendant’s mind, a jury could not reasonably have concluded, in the light of the evidence in this case, that defendant by reason of intoxication did not premeditate or adequately deliberate. Accordingly, the refusal of the offered instruction was not error. ”
People v. Caldwell (1984) 36 Cal.3d 210, 225 [203 Cal.Rptr. 433, 681 P.2d 274], says it briefly and best: “Washington contends that there is no *531substantial evidence that he possessed the requisite specific intent for robbery, characterizing defense evidence of diminished capacity (a sheriff’s sergeant’s testimony that, three hours after he was captured, defendant appeared lethargic and appeared to be drifting off to sleep, leading him to suspect him of being under the influence of a drug, perhaps PCP) as ‘uncontradicted. ’ Mere consumption of drugs is insufficient to establish diminished capacity, however; the evidence must demonstrate the effect of such consumption on the defendant. [Citations.]” (Italics added.)
Finally, from one of the seminal cases, People v. Gonzales (1970) 4 Cal.App.3d 593, 608 [84 Cal.Rptr. 863]; “For this court, on the basis of the cold record of Trevino’s having consumed an indeterminate amount of beer, to now second-guess all the attorneys and the trial court, and rule that the evidence of Trevino’s intoxication was such as to require a diminished capacity instruction, sua sponte, will open the floodgates to such demands in all other cases where there is testimony that the defendant had the proverbial ‘couple of beers.’ This we decline to do.”
Taking Kenneth Hayes’ proffered testimony at face value, together with all reasonable inferences that can be drawn therefrom, Kenneth Hayes’ evidence would still not reach a level where even a sua sponte instruction would be warranted without it being conjoined with the requirement as set forth in Caldwell, Carr and Gonzales. The evidence must demonstrate the effect of such consumption on the defendant. The proffered evidence here is meaningless since it fails to indicate the effect of consumption on Hayes.2 It is difficult to find abuse of discretion in a factual situation such as this.
I would affirm the conviction.
Respondent’s petition for review by the Supreme Court was denied November 26, 1985. Mosk, J., was of the opinion that the petition should be granted.
Hayes’ counsel does not honor us with the entire quote, nor does he cite the footnote at page 412: “If defendant does not offer evidence of the mental condition at the penalty trial, the court-appointed psychiatrist may not of course testify at that trial.” (In re Spencer, supra, 63 Cal.2d 400, 412, fn. 10.)
These foregoing conclusions are buttressed in learned detail in 2 Wigmore on Evidence (Chadbourn rev. ed. 1979) section 672, pages 934-936.