Yoder

Following trial by jury Harvey Yoder was convicted of first degree burglary in violation of Penal Code section 459 and sentenced to state prison. He appeals from the judgment.

Facts

At approximately 8:30 p.m. on May 27, 1978, defendant was apprehended while admittedly burglarizing the residence of Paul de Fonville in the Silver Lake area of the City of Los Angeles. The arresting officer testified defendant had a mild odor of alcohol on his person but exhibited no evidence of being under the influence of alcohol or drugs.

Defendant testified in his own defense to being under the influence of alcohol and drugs to the extent that he was unable to recall any of the evening’s events after being ordered off a bus in the Glendale or Burbank area except for hearing some glass breaking and being handcuffed by the police.

Contentions

It is contended on appeal that the trial court committed reversible error in refusing to instruct the jury properly and fully as to the defense of diminished capacity in a specific intent crime. While it is suggested that the error resulted from the refusal to give requested instruction CALJIC No. 3.35 and one on the less serious offense of…