If a jury finds that a defendant killed while conscious, with malice, will return a verdict of murder in the second degree?

The third instruction in this category was prepared by defendant and based on an instruction recommended in People v. Conley, 64 Cal.2d 310, [19 Cal.App.3d 701] 324--326, 49 Cal.Rptr. 815, 411 P.2d 911, footnote 4. It also was requested by defendant and told the jurors, in part, in substance: If you find that defendant killed while conscious, with malice, you will return a verdict of murder; (see later comment for apparent trial court omission here) if you find that defendant's capacity was so diminished that 'you have a reasonable doubt whether defendant premeditated * * * you will find defendant guilty of murder in the second degree.' This instruction, of course, suggests in a way that first degree murder was a potential finding available to the trier of fact if not eliminated by diminished capacity. ¹⁴

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