Cox

A jury found Dale William Cox guilty of attempted burglary: an attempt to enter an inhabited dwelling for the purpose of committing rape (violation of Pen. Code, 1 §§ 664 and 459). In nonjury *984 hearings the court found Cox to have been sane at the time of the crime, denying his plea of insanity; and also found the allegation of a prior conviction (assault with intent to commit rape) to be true. Cox was sentenced to prison for the midterm of two years with an additional five years for the prior conviction, a total term of seven years. Cox appeals, alleging (1) error in receiving in evidence admissions not voluntarily given; (2) error in failing to give, sua sponte, an instruction on voluntary intoxication; and (3) insufficient evidence to support the conviction of burglary. We find no error and affirm.

Facts

The attempted entry into the residence occurred at the patio entrance to the condominium of Mr. and Mrs. Paul Brackman in Carlsbad, at around 2:30 a.m. Cox’s attempt to open the sliding glass door activated a burglar alarm, awakening the Brackmans. When Mr. Brackman investigated he found Cox, naked, sitting in a chair outside the condo. While Mrs. Brackman called…

A jury found Dale William Cox guilty of attempted burglary: an attempt to enter an inhabited dwelling for the purpose of committing rape (violation of Pen. Code, [1] §§ 664 and 459). In nonjury hearings the court found Cox to have been sane at the time of the crime, denying his plea of insanity; and also found the allegation of a prior conviction (assault with intent to commit rape) to be true. Cox was sentenced to prison for the midterm of two years with an additional five years for the prior conviction, a total term of seven years. Cox appeals, alleging (1) error in receiving in evidence admissions not voluntarily given; (2) error in failing to give, sua sponte, an instruction on voluntary intoxication; and (3) insufficient evidence to support the conviction of burglary. We find no error and affirm.

The attempted entry into the residence occurred at the patio entrance to the condominium of Mr. and Mrs. Paul Brackman in Carlsbad, at around 2:30 a.m. Cox's attempt to open the sliding glass door activated a burglar alarm, awakening the Brackmans. When Mr. Brackman investigated he found Cox, naked, sitting in a chair outside the condo. While Mrs. Brackman…

I respectfully dissent from part 2 of the majority opinion for several reasons, not the least of which is the Attorney General has conceded the court erred in not instructing with CALJIC No. 4.21. The Attorney General does not state the court correctly failed to give CALJIC No. 4.21, but instead asserts there was no prejudicial error because, in the context of the evidence and counsels’ closing arguments, “the jury would surely know that an issue before it was whether appellant’s drug ingestion caused him to lack the requisite specific intent for burglary.”

Rather than accepting this admission and assessing the prejudicial impact of the error, the majority not only ignores the admission but stands it on its head, asserting, “Not only was the sua sponte giving of the instruction not required, but on the facts of this case it may have been error to give it even if requested.”

There are few circumstances which justify relieving any party, much less the Attorney General, from an admission in its brief. Contrary to the majority’s suggestion, reviewing courts do not, and in Bell v. Tri-City Hospital *993 Dist. (1987) 196 Cal.App.3d 438 [ 241 Cal.Rptr. 796 ] this court did not, hold…