Fonville

After a 13-day trial a jury found the appellant guilty of murder in the first degree (Pen. Code, § 187), found him sane in a subsequent sanity trial lasting 2 days, and in a 5-day penalty trial fixed the penalty at death.

Under the mandate of People v. Anderson (1972) 6 Cal.3d 628 [ 100 Cal.Rptr. 152 , 493 P.2d 880 ], we are required to modify the judgment to provide for a punishment of life imprisonment; for the reasons hereinafter stated the judgment will otherwise be affirmed.

Appellant’s core contention is that as a matter of law the first degree murder conviction cannot stand because there is not substantial evidence to support the jury’s determination that the murder was committed with premeditation and deliberation. Appellant asks this court to reduce the degree of the crime to second degree. (Pen. Code, § 1181, subd. 6; People v. Anderson (1968) 70 Cal.2d 15 [ 73 Cal.Rptr. 550 , 447 P.2d 942 ].) Supportive of this contention he introduced evidence in the trial court and argued before the trial court and in this court that due to appellant’s ingestion of drugs and alcohol and due to mental illness he did not have the capacity to act with premeditation and the…