Aubrey

*195 Opinion

After a court trial, a jury having been waived, defendant was convicted of murder, first degree (Pen. Code, §§ 187, 189). He is appealing from the judgment.

This is the defendant’s second trial. The first conviction, after a jury trial, was reversed because the jury had not been instructed properly on diminished capacity. (People v. Aubrey (1967) 253 Cal.App.2d 912 [ 61 Cal.Rptr. 772 ].) The conviction of defendant’s companion in the killing was affirmed in People v. Stephanson (1968) 259 Cal.App.2d 181 [ 66 Cal.Rptr. 155 ].

Defendant and two companions, Stephanson and Daniel DeVough (aged 15), were drinking beer in a Burbank bar at closing time. Defendant suggested that they get a gun and go to Watts. Stephanson supplied a 16-gauge shotgun and defendant furnished the car. Defendant was driving when they left Burbank, but en route he moved over to the right side and let DeVough drive. Stephanson was in the back seat with the shotgun. As they passed the corner of Florence and Broadway in Los Angeles at about 3 a.m. they saw a Negro in a sailor uniform. Stephanson said, “Back up.” (At the first trial DeVough had testified defendant said this.) DeVough did back up and…