California Court of Appeal September 11, 1970, Crim. No. 16628 (People v. Aubrey)

*195Opinion

FILES, P. J.

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.