What considerations must a jury consider in determining felonious intent in a sexual assault case?

[13 Cal.App.3d 327] Similar considerations govern the offense of burglary (Pen.Code, 459) when, as here, the felonious intent is claimed to be the intent to commit rape. (See People v. Failla (1966) 64 Cal.2d 560, 564--566, 51 Cal.Rptr. 103, 414 P.2d 39; and People v. Tidmore (1963) 218 Cal.App.2d 716, 720, 32 Cal.Rptr. 444.) If the entry was effected with the intent 'to commit one or more misdemeanors (e.g., indecent exposure or battery) or acts which are not crimes (e.g., masturbation)' (People v. Failla, supra, 64 Cal.2d at p. 565, 51 Cal.Rptr. at p. 106, 414 P.2d at p. 42), or with the intent to seduce the victim (People v. Tidmore, supra, 218 Cal.App.2d at p. 720, 32 Cal.Rptr. 444), no burglary was committed.

Morever, '* * * whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act.' (Pen.Code, 22. See, People v. Townsend (1969) 269 Cal.App.2d 430, 432--433, 74 Cal.Rptr. 758; and People v. Peckham, supra, 232 Cal.App.2d 163, 168, 42 Cal.Rptr. 673.)

Additionally the following rule should be noted, 'It has long been settled that evidence of diminished mental capacity, whether caused by intoxication, trauma, or disease, can be used to show that a defendant did not have a specific mental state essential to an offense.' (People v. Conley (1966) 64 Cal.2d 310, 316, 49 Cal.Rptr. 815, 818, 411 P.2d 911, 914.