Griffin

Donald Paul Griffin appeals from a judgment entered upon a guilty verdict of first degree murder (Pen. Code, § 187). He was sentenced to fife imprisonment by the court (Pen. Code, § 190.1) after the jury failed to agree on the imposition of punishment.

As grounds for reversal, among others, appellant asserts that the trial court should have given, sua sponte, a nonstatutory manslaughter instruction called for by People v. Conley, 64 Cal.2d 310 [ 49 Cal.Rptr. 815 , 411 P.2d 911 ], at page 318, where the court said: “Accordingly, a finding of provocation sufficient to reduce murder to manslaughter is not the sole means by which malice can be negated and voluntary manslaughter established. A person who intentionally kills may be incapable of harboring malice aforethought because of a mental disease, defect, or intoxication, and in such case his killing, unless justified or excused, is voluntary manslaughter.” (See also People v. Castillo, 70 Cal.2d 264 [ 74 Cal.Rptr. 385 , 449 P.2d 449 ]; People v. Mosher, 1 Cal.3d 379 [ 82 Cal.Rptr. 379 , 461 P.2d 659 ]; People v. Tidwell, 3 Cal.3d 82 [ 89 Cal.Rptr. 58 , 473 P.2d 762 ].)

Failure to give such an instruction, sua sponte, is…