I dissent from the reversal of defendant’s conviction on the charges of burglary.
There was no error in the instructions given as to the elements of the crime of burglary. The trial judge followed the wording of the statute. Error, if any, was in the failure of the court to amplify the code section to explain what was meant by the words, ‘ ‘ any felony. ’ ’ However, even if such failure be deemed error it was not prejudicial and reversal of the conviction, in my opinion, is unwarranted.
Defendant’s defense was alibi. By its verdict we may assume the jury did not believe such defense. In argument to the jury defendant’s counsel had stated, “As in Count I, as in Count V, we do not argue to you that what was done by whoever was there did not constitute either burglary or kid-naping. I will agree 100% with what Mr. Johnson [the prosecutor] said. Whoever committed those acts was guilty of those offenses.” The trial judge was thereby assured that the defendant raised no issue with respect to counts I and V that such conduct constituted violations of the law as charged. The sole issue was the identity of the offender.
*572On appeal, defendant asserts, for the first time, that the court erred in not instructing the jury in effect that if the illegal entry of defendant was one for the purpose of committing a misdemeanor sex offense his conduct did not constitute burglary. The majority opinion considers such failure prejudicial error and holds that the jury should have been advised “which acts the defendant, upon entry, may have intended to commit would amount to felonies.” (Ante, p. 564.) The theory involved is that the facts, as to certain counts at least, might support a conclusion that defendant only intended to engage in indecent exposure or sex misdemeanors that would not constitute the entry a burglary.
In determining what instructions a trial court is required to give without request this court has said: “. . . the trial court cannot be required to anticipate every possible theory that may fit the facts of the case before it and instruct the jury accordingly. The judge need not fill in every time a litigant or his counsel fails to discover an abstruse but possible theory of the facts.” (People v. Wade, 53 Cal.2d 322, 334 [1 Cal.Rptr. 683, 348 P.2d 116].) In Wade, as here, a new theory of defense was asserted for the first time on appeal.
It has also been stated in People v. Kuykendall, 134 Cal.App.2d 642, 646 [285 P.2d 996] : “It is true the general rule in a criminal case is that it is the duty of a trial judge to instruct the jury on its own motion, charging them fully and fairly on the law relating to the facts of the case, and it is not relieved of the duty to give such instructions merely because they are not requested. (People v. Baker, 42 Cal.2d 550, 576 [20] [268 P.2d 705].) However, there is an exception to this general rule that instructions defining the elements of an offense may be couched in the language of the code where no instructions in elaboration of the principles of statutory definitions are requested by defendant. (People v. Reed, 38 Cal.2d 423, 430 [1] [240 P.2d 590].) ”
There was no such request in this ease since the defense was alibi and the trial court was under no duty to anticipate the defense defendant now raises on appeal, particularly after defense counsel’s statement conceding, as to counts I and Y, that the charges of burglary and kidnaping were applicable to the facts presented. Accordingly, the omission of the trial court in failing to distinguish the acts committed by defendant that were felonious from those that were either misdemeanors or no violation whatever should not be deemed reversible error. The true test was not what acts actually *573transpired but what were defendant’s intentions upon entry. What transpired was relevant only for whatever light it might cast upon such intentions.
The evidence indicates that in two instances the defendant examined the victims ’ purses after entry and before accosting them; in the first, he took a wallet from the victim ⅛ purse and left it on the living room floor with her credit cards in disarray nearby—there had been no bills (money) in the wallet; in the second, $8.00 had been stolen from the victim’s wallet which the defendant, apparently, later returned to his victim. The evidence taken as a whole shows a course of conduct which includes both theft and carnal desires.
The evidence as to counts I and IV showed that oral copulation, a felony, was defendant’s purpose; the victims testified that he asserted this intention to them and threatened to kill them if they screamed. In one instance defendant flourished a knife, threatening his victim. In another he stated he had a knife and the victim felt a handle in his hand. In a third case he asserted he had a gun and was going to kill his victim but she saw no gun and screamed. In a scuffle he struck her in the abdomen with his fist. In two of the instances he placed his hand upon the private parts of his victims and exerted physical force in an attempt to carry out his intentions. In one case he asked the victim if she wanted him to have intercourse with her and when she said “ no ” he took her hand and used it for masturbation—at this time he had completely removed his trousers.
In the instance where defendant only got one foot in the window, after removing the screen, he wore only a T-shirt, shorts, and no trousers. The latter has some significance as to his intentions.
Such direct evidence tends to establish a ‘ ‘ common plan or scheme” incompatible with a conclusion that defendant’s entry of any of the several dwellings could have been attended with only an intent to commit acts classifiable as misdemeanors.
I am therefore of the opinion that it would not have been probable that a judgment more favorable to defendant would have resulted had the omission in instructions, if it be deemed error, not occurred. I would affirm the judgment pursuant to the mandate of section 4½, article VI, of the California Constitution, and the rationale of People v. Watson, 46 Cal.2d 818, 836 [299 P.2d 243].
*574I concur in that portion of the opinion affirming the conviction of defendant on the kidnaping charge.
McComb, J., concurred.Respondent’s petition for a rehearing was denied June 8, 1966. McComb, J., and Burke, J., were of the opinion that ihe petition should be granted.