Whitler

Defendant was found guilty of first degree murder. (Pen. Code, § 187.) 1 On appeal she contends, (1) the provisions of sections 25, 28, and 29 violate her constitutional right to present a defense, or, in the alternative, sections 28 and 29 were impliedly repealed by Proposition 8, and (2) the trial court failed to properly instruct the jury on her defense that she lacked the proper mental state. We shall affirm.

Defendant shot and killed her estranged common-law husband Benjamin Lancaster. On the morning before the killing, defendant had become very upset over news of her uncle’s death. She drank two glasses of wine during the day. Lancaster had agreed to give defendant a ride to the bus station so she could travel to San Jose for the uncle’s funeral; defendant refused the offer after Lancaster asked if she was “celebrating” her uncle’s death. Later, defendant stated she could “kill [Lancaster] for what he had done.” Defendant’s daughter Maria drove defendant to the body shop where Lancaster worked; she walked into the body shop and entered the bathroom. *340 Maria heard a shot and saw Lancaster running from the shop; defendant ran after him and shot him again.…

I concur in all aspects of the majority opinion but write separately to address defendant’s contention of instructional error.

Defendant contends the court had a sua sponte duty to give instructions relating her evidence of mental disease to the mental states required for various specie of homicide—from murder to manslaughter. The argument is predicated on a series of California Supreme Court cases promulgating a duty to give instructions relating the defense of diminished capacity to such mental states. (See, e.g., People v. Mosher (1969) 1 Cal.3d 379, 389-393 [ 82 Cal.Rptr. 379 , 461 P.2d 659 ]; People v. Castillo (1969) 70 Cal.2d 264, 270 [ 74 Cal.Rptr. 385 , 449 P.2d 449 ]; People v. Conley (1966) 64 Cal.2d 310, 324, fn. 4 [ 49 Cal.Rptr. 815 , 411 P.2d 911 ].)

These cases represent variations of the familiar rule that a trial court has a sua sponte duty to give instructions relating a recognized defense to ele *343 ments of a charged offense. (People v. Sedeno (1974) 10 Cal.3d 703, 716 [ 112 Cal.Rptr. 1 , 518 P.2d 913 ].) As my colleagues correctly note, the defense of diminished capacity has been abolished. A defendant may still defend against a charge of homicide by…

EVANS, Acting P.J.

Defendant was found guilty of first degree murder. (Pen. Code, § 187.) [1] On appeal she contends, (1) the provisions of sections 25, 28, and 29 violate her constitutional right to present a defense, or, in the alternative, sections 28 and 29 were impliedly repealed by Proposition 8, and (2) the trial court failed to properly instruct the jury on her defense that she lacked the proper mental state. We shall affirm.

Defendant shot and killed her estranged common-law husband Benjamin Lancaster. On the morning before the killing, defendant had become very upset over news of her uncle's death. She drank two glasses of wine during the day. Lancaster had agreed to give defendant a ride to the bus station so she could travel to San Jose for the uncle's funeral; defendant refused the offer after Lancaster asked if she was "celebrating" her uncle's death. Later, defendant stated she could "kill [Lancaster] for what he had done." Defendant's daughter Maria drove defendant to the body shop where Lancaster worked; she walked into the body shop and entered the bathroom. Maria heard a shot and saw Lancaster running from the shop; defendant ran after him and shot…