McCoy

Defendant was charged with: (count I) assault with a deadly weapon on Michael Everett, in violation of Penal Code section 245, subdivision (a); (count II) attempted murder of Louise Everett, in violation of sections 664/187; and (count III) assault with a deadly weapon on Louise Everett, in violation of section 245, subdivision (a). Injury and firearm-use allegations were made as to each count (§§ 12022.5, 12022.7.) Defendant pled not guilty and not guilty by reason of insanity. After trial by jury, he was found guilty on all counts, and the special allegations were found true. The jury found the attempted murder to be first degree. In subsequent proceedings, the jury found that defendant was sane at the time of the crimes. He was sentenced to state prison.

On this appeal from the judgment of conviction, defendant claims reversible error in that the jury was inadequately instructed on self-defense, alcohol-related diminished capacity, unconsciousness, and “unreasonable” self-defense. We find error only in the diminished capacity instructions, but find that defendant cannot have been prejudiced thereby, as the defense of diminished capacity was unavailable to him as a…