When will a jury accept a diminished capacity defense in a motor vehicle accident case?

^6. We reject defendant's contention the error is a constitutional due process error and thus reversible per se. Defendant relies on People v. Newton (1970) 8 Cal.App.3d 359, but that case is inapposite. In Newton, the record did not show the jury necessarily decided the factual question posed by an unconsciousness instruction against the defendant, but suggested the jury accepted the defendant's diminished capacity defense because it convicted him of manslaughter as a lesser included offense of murder. (Id. at p. 378.) Here, as we discuss further below, the jury necessarily decided the factual question posed by the omitted unconsciousness instruction when it found defendant acted deliberately, with premeditation, and with intent to kill despite expert evidence regarding his mental condition and an instruction that such evidence could support a defense.