What is the test for diminished capacity in a second degree murder case?

It has been held that "in any situation where malice aforethought or any other specific mental state must be established in order to find a charged or included offense, evidence of diminished capacity may be used to negate its existence. When such evidence exists the accused is entitled to an instruction which clearly indicates the full effect which a finding of its existence may bear on a crucial mental element of the charged and included offenses." (People v. Poddar (1974) 10 Cal.3d 750, 758, 111 Cal.Rptr. 910, 518 P.2d 342.) Diminished capacity would, of course, bear upon the specific intent requisite to commission of the felony upon which the resultant conviction of second degree felony-murder was predicated, viz : the crime of willfully mingling a harmful substance with food, drink or medicine with intent that the same shall be taken by any human being to his injury. (Pen. Code, 347.) This is so because "(d)iminished capacity is a defense to all specific intent crimes." (People v. Cruz (1980) 26 Cal.3d 233, 242, 162 Cal.Rptr. 1, 605 P.2d 830.) From the jury's finding of such a "specific intent" to perpetrate an "inherently dangerous felony" the "malice" essential to a second degree murderconviction

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The evidentiary basis for such a diminished capacity instruction was by no means apparent. Insofar as the prosecution's evidence suggested that defendant might be suffering from a mental disease, the thrust of that evidence was directed toward defendant's supposed motivation in causing harm to her children, as distinguished from her intent to do so. (Cf. People v. Terry (1970) 2 Cal.3d 362, 401, 85 Cal.Rptr. 409, 466 P.2d 961.)

It may be, and we assume, that if appellant had requested a diminished capacity instruction she would have been entitled to it despite the somewhat tenuous nature of the supporting evidence. (See People v. Flannel (1979) 25 Cal.3d 668, 684, 160 Cal.Rptr. 84, 603 P.2d 1.) To allow the prosecution to gain advantage from evidence suggesting mental illness on the part of defendant and at the same time to preclude the jury from considering the implications of such illness for the mental [122 Cal.App.3d 89] state which the prosecution is required to prove would, under such circumstances, be incongruous if not unjust.