Mistake/Ignorance/Impossibility/Consent
Category > Mistake/Ignorance/Impossibility/Consent
Updated 3/4/2024Defendant’s mistake as to the owner of the vehicle required an instruction on the mistake of fact defense.Defendant was convicted of felony vehicle theft under Vehicle Code section 10851(a). However, the trial court erred in failing to instruct the jury on mistake of fact given that defendant thought he was borrowing the car from its rightful owner, without knowing the car was in fact stolen.id: 27782
Updated 2/22/2024The trial court erred by instructing that a defendant’s mistake of fact need be objectively reasonable.Defendant was convicted of burglary. The trial court erred when instructing on the mistake of fact defense that the mistake need be objectively reasonable. However, the error was harmless given the lack of evidence from which the jury could have concluded defendant subjectively believed his claim that he thought he was breaking into his cousin’s house where he was welcome.id: 27054
Updated 2/7/2024The trial court erred in failing to instruct on mistake of law where defendant acted on the advice of four attorneys.Defendant was convicted of multiple securities fraud violation offenses that required a specific intent. The trial court erred by refusing to instruct on mistake of law where defendant was told by four attorneys that he need not disclose his prior convictions.id: 27144
Updated 2/4/2024The trial court erred in failing to instruct that mistake of fact as to the alleged victim’s age is a defense to human trafficking of a minor.Defendant was convicted of human trafficking of a minor in violation of Penal Code section 236.1 (c)(1). The case involved a human decoy rather than a minor. The trial court erred in failing to instruct that mistake of fact as to the age of the alleged victim was a defense to the charge, and that the offense requires a specific intent to target a minor.id: 27342
Updated 2/3/2024Error in mistake of fact instructions was prejudicial where evidence supported the defense to the burglary charge and resolution of the issue was critical to the question of defendant’s intent.The trial court erred by instructing the jurors that for purposes of the mistake-in-fact defense, the mistake had to be a reasonable one. The law only requires that the mistake be genuinely held. The error was prejudicial where the mistake claim was supported by substantial evidence and resolution was central to the question of whether defendant possessed the criminal intent necessary for the burglary conviction.id: 27552
Trial court erred by failing to explain the standard to apply in determining the reasonableness of defendant’s mistake of fact claim on the charge of receiving stolen property.Defendant was convicted of receiving stolen property. He argued a mistake of fact, but the instruction given to the jurors failed to explain the standard they were to apply in determining the reasonableness of his belief. While objective reasonableness is not a requirement of the defense of mistake, subjective reasonableness is relevant. However, the instructional error was harmless where the jury was instructed to find beyond a reasonable doubt that defendant knew the equipment was stolen, and the evidence that he knew the goods were stolen was strong. id: 23819
The trial court erred by failing to give a Mayberry instruction (sua sponte) on the misdemeanor sexual battery charge.A defendant may be entitled to an instruction under People v. Mayberry (1975) 15 Cal.3d 143, an honest and good-faith belief that the victim had consented to sexual contact, in a misdemeanor sexual battery case. In the present case, the trial court erred in failing to give the instruction where defendant testified that he touched the victim’s breast (over her bra) after she wrapped her legs around hm and pulled him on top of her. The error was prejudicial under either the Chapman or Watson standards give that the jury acquitted defendant of the rape and sexual battery counts.id: 24007
The mistake of fact defense applies to an attempt to commit a lewd act on a minor under 14 and the trial court erred by failing to instruct on the defense. The mistake of fact defense applies to the crime of attempt to commit a lewd act on a minor under 14 years of age. The trial court therefore erred by refusing to instruct on the defense because there was sufficient evidence to instruct on it as the MySpace profile listed the girl’s age as 18 before defendant was later informed she was 13. However, the error was not prejudicial because the evidence that defendant actually believed the girl was 13 was strong as he acknowledged that he was okay with her being 13 after originally believing she was 18.id: 23282
The trial court prejudicially erred by failing to give the Mayberry instruction regarding a defendant’s reasonable but mistaken belief that the rape victim consented to intercourse.Defendant was convicted of attempted rape by force. However, the trial court erred by failing to instruct that defendant was not guilty of the charged offense if he reasonably but mistakenly believed the victim consented to intercourse. The error was prejudicial where he always maintained that the victim consented and the prosecution told the jury defendant’s intent was irrelevant.id: 22235
An honest and reasonable but mistaken belief that a sexual partner is not too intoxicated to give legal consent to sexual intercourse is a defense to rape by intoxication.Because actual consent of the victim is not a defense to a charge of rape by intoxication, a belief in the existence of such actual consent is irrelevant. However, an honest and reasonable but mistaken belief that a sexual partner is not too intoxicated to give legal consent to sexual intercourse is a defense to rape by intoxication.id: 15358
The trial court erred by refusing to allow defendant charged with supplying alcohol to a minor who caused a serious accident to show a mistake of fact as to age.Defendant invited guests to his house and served alcoholic beverages. One guest, who was 19 years old, left the party and caused an accident resulting in injury. Defendant was charged with violating Business and Professions Code section 25658, subd.(c) which prohibits buying alcohol for persons under 21 who later cause death or injury. Although the prosecutor was not required to prove knowledge of age in order to establish a violation of section 25658, subd.(c), defendant was entitled to raise an affirmative defense where he could prove he honestly and reasonably believed his guest was 21 years old. The trial court erred in refusing defendant's offer to prove this fact.id: 18065
Updated 2/26/2024The trial court did not err by failing to instruct that if the kidnapping victim was too drunk to lack the capacity to consent that defendant could not be convicted.Defendant was convicted of kidnapping and other offenses. The trial court did not prejudicially err by failing to instruct that if the kidnapping victim was so intoxicated as to lack the capacity to consent, then defendant could not be found guilty of kidnapping unless he acted with an illegal purpose or intent.id: 27006
Updated 2/2/2024Mistake of fact as to age is not a defense to attempted human trafficking of a minor.Defendant was convicted of human trafficking of a minor under Penal Code section 236.1(c). That provision prohibits the human trafficking and attempted human trafficking of a minor. Defendant was convicted under the attempt prong and argued the court erred by not instructing that the prosecution had to prove specific intent as to age. However, the crime is committed when defendant attempts, but fails, to traffic a minor even if the defendant lacks a specific intent regarding the victim’s age. Mistake of fact as to age is not a defense to attempted human trafficking under section 236.1(c).id: 27871
A john’s mistake-of-fact regarding consent did not apply to defendant. Defendant was convicted of rape in concert of a prostitute who had just had sex with a john. Defendant argued there was a mistake of fact as to whether the victim consented to the intercourse. However, even if the john did not have the meas rea for rape, defendant did.id: 26147
No instruction on the mistake-of-fact defense to the kidnap-murder special circumstance was required where the defense did not rely on that theory and there was no evidence to support it.Defendant argued the trial court had a sua sponte duty to instruct on a mistake of fact defense to the kidnapping for murder special circumstance because when he strangled her he thought he killed her, and movement of a living victim is required for the kidnapping. However, the court had no duty to instruct on the affirmative defense where the defendant did not rely on that theory at trial and it wasn’t supported by substandard evidence.id: 25179
The trial court did not err by excluding the testimony of a Chinese cultural expert suggesting that defendant reasonably believed the victim consented to the sex acts by sharing a glass of wine and loaning him various books.Defendant was charged with committing sex crimes against an acquaintance. The defense was consent or a reasonable and good faith belief in consent. The court did not err in excluding the opinion of an expert on Chinese culture suggesting defendant reasonably believed that by sharing a wine glass or books the victim agreed to an intimate encounter. Our society is not willing to tolerate a belief in consent that is based on the content of loaned books or the sharing of a glass of wine. The relevance of the proposed testimony was therefore minimal.id: 18654
The trial court did not err by failing to give the Mayberry instruction regarding a reasonable belief in consent where the defense was misidentification and defendant threatened the prostitute victims at gunpoint.Defendant argued the trial court erred by failing to instruct sua sponte pursuant to People v. Mayberry (1975) 15 Cal.3d 143, that it should find the defendant not guilty if he had a reasonable and good faith but mistaken belief that the victims consented to engage in sexual intercourse. However, the defense was not mistaken belief in consent but rather misidentification. Moreover, any claim that defendant believed the prostitute victims consented to the acts was groundless after he pulled his gun and threatened the women.id: 24216
The trial court did not err by failing to instruct on the reasonable good-faith belief that the victim consented where the defense was that defendant never touched the victim.Defendant argued the trial court erred by failing to instruct that he had a reasonable good-faith belief that the victim consented to the sex acts. However, there was no evidence to support the claim, and his defense was that he never touched the victim. Defendant was not entitled to the Mayberry instruction under these circumstances.id: 24140
The trial court did not have a sua sponte duty to instruct on mistake-of-fact as a defense to attempted petty theft.The trial court did not err by failing to instruct sua sponte on the claim-of-right and mistake-of-fact defenses to attempted petty theft. The court’s sua sponte instructional duties do not apply to defenses that serve to negate the mental state element, even though the court could have given a pinpoint instruction on the issue upon request by the defense. id: 23823
Mistake of fact defense instruction was not required for defendant who mistakenly estimated the amount of marijuana his plants would yield on the dosage needed for his condition. Defendant was convicted of marijuana possession and cultivation. He argued the trial court erred by failing to instruct on the mistake of fact defense because of evidence that he mistakenly estimated the amount of marijuana his plants would yield or the dosage needed for his medical condition. However, uncertainties were relevant for the jury to consider when evaluating the circumstances but they are not actual facts that were misunderstood by the defendant as normally contemplated by the mistake of fact defense. id: 23956
The trial court had no duty to instruct on the mistake of fact defense at defendant’s gross vehicular manslaughter by intoxication trial simply because his ingestion of energy drinks masked his perception of his intoxication level.Defendant was convicted of gross vehicle manslaughter while intoxicated. The trial court did not err by failing to instruct on the mistake of fact defense where defendant argued he mistakenly believed his ingestion of an energy drink masked his ability to perceive alcohol impairment. Defendant could not avoid liability under a mistake of fact defense simply because he held a mistaken belief about his impairment. id: 23964
Defendant’s erroneous belief that the victim was a burglar did not justify a mistake of fact instruction where he responded with multiple axe blows to the head. Defendant was convicted of murdering the victim with an axe. The trial court did not err by failing to instruct on the mistake of fact defense because defendant’s erroneous belief that the victim was engaged in a burglary did not make killing him with multiple axe blows an innocent act. Moreover, mistake of fact is not a true affirmative defense implicating the trial court’s sua sponte instructional obligation. id: 23976
Defendant’s act of forgetting the hoodie as he walked out of Walmart did not support an instruction on the mistake-of- fact defense.Defendant was convicted of petty theft for stealing a $20 hoodie from Walmart. He argued the trial court erred by failing to instruct on the defense of mistake-of-fact as the jury could reasonably have inferred he simply forgot about the hoodie which was draped over his shoulder as he went through the checkout line and paid for other things. While the evidence did support that reasonable inference, the mistake-of-fact defense only applies where the defendant has a mistaken belief in a set of circumstances, which if true would render the defendant’s conduct lawful. Even if the evidence supported the instruction there was no sua sponte duty to give it where it served only to negate the intent element of the charged crime. id: 23147
There was no evidence to support a claim of consent or mistaken belief in consent (Mayberry) that required instructions on the issue. Defendant argued the trial court
erred by refusing to instruct on consent, or the reasonable belief in consent, as a defense to rape.
However, there was no evidence in the record of equivocal conduct of the victim the defendant
could have reasonably mistaken for consent.id: 21346
Appropriation of lost property is not a specific intent offense.Defendant was convicted of appropriation of lost property under Penal Code section 485. That crime is a general intent offense and the trial court did not err in failing to instruct on the need for specific intent. Moreover, the court did not prejudicially err in failing to give a mistake of fact instruction because defendant's mistaken belief that the misappropriated circuit boards belonged to the insurance company would not have established that he lacked the requisite mental state.id: 21508
Mayberry instruction regarding reasonable belief in consent was not required where there was no evidence that defendant’s belief in consent was objectively reasonable.Defendant was convicted of rape and sodomy. He argued the trial court erred by failing to give the Mayberry instruction regarding his reasonable but mistaken belief in consent by the victim. However, the trial court properly refused to give the instruction where there was no substantial evidence to show defendant reasonably believed the victim consented. Defendant broke into the home the victim shared with her young daughter, carried a two foot long metal bar, forced himself on her as she tried to avoid him, and told her he had previously killed a cop and implied he would hurt her if she did not have sex with him.id: 21318
A defendant may not lawfully sell marijuana on a constitutional religious freedom theory. Defendant was a pro-marijuana activist who was an ordained minister in the Universal Life Church and started Temple 420 as an online ministry. He was convicted of possessing and selling marijuana. Contrary to his claim, the trial court did not err in excluding reference to the Religious Freedom Restoration Act, and the federal and state constitutions as part of his religious freedom defense. Moreover, the trial court did not err in failing to instruct on good faith mistake of law since there was no evidence that defendant thought the sale of marijuana was legal. id: 20670
The trial court had no duty to instruct on mistake of law as ignorance of the law is no defense, or mistake of fact where that was contrary to defendant’s position at trial.Defendant was charged with several offenses relating to his participation in a scheme to defraud insurance companies. Defendant argued the trial court should have instructed, sua sponte on mistake of law or fact since he did not think he did anything wrong as he tried to help injured people find lawyers and chiropractors. However, ignorance of the law is no excuse and the trial court had no duty to instruct on mistake of fact because that was contrary to defendant’s position at trial and was not supported by the evidence.id: 20511
The trial court properly refused to instruct on a mistake of fact as to defendant's belief that the victim was not too intoxicated to resist the intercourse.Defendant was convicted of raping an intoxicated woman. He argued the trial court erred by refusing to instruct on mistake of fact since there was evidence showing that he mistakenly believed the victim was not sufficiently intoxicated to be unable to resist. However, a belief that the victim was able to resist could not be reasonable if the perpetrator "reasonably should have known" that the victim was unable to resist. The instructions given were proper, and the court properly refused to instruct with CALJIC 4.35.id: 19320
The trial court did not err in failing to instruct on the mistake of fact defense where that was not the defense theory of the case.The trial court did not err in failing to instruct sua sponte on the mistake of fact defense, where the defense theory was that
defendant tried to prevent the attack on the victim, not that she aided the principal under the erroneous theory that the victim was already dead.id: 19159
Defendant who falsified his address when running for city council to comply with residency requirements was not entitled to expert testimony on the meaning of "residence" in the political arena.Defendant was running for city council but was not a city resident. To meet the residence requirement he used the address of a friend as a mailing address. He signed under penalty of perjury official forms giving that mailing address. He was convicted of perjury and Elections Code violations. Defendant was not entitled to mistake-of-fact instructions based on a mistaken definition of "residence" since his mistake in believing the law did not require him to sleep in the city was one of law not fact. Moreover, he was not entitled to expert testimony on the meaning of "residence" in the political arena since that term does have a different meaning for elected officials.id: 17323
A 15 year-old could not authorize another person to burn a cross on his parents property.Defendant was charged with burning a cross on another's property under Penal Code section 11411, subd.(c). He argued the court erred in preventing him from showing the cross-burning was authorized. However, defendant's 15 year-old friend Jarod was not legally entitled to authorize the cross burning on his parents property. Therefore, the court did not err in refusing to instruct on consent, and the prosecutor did not misstate the law in closing argument by asserting Jarod lacked authority to permit the act.id: 16073
It is not factually impossible to violate section 113 by manufacturing counterfeit government documents and selling them to U.S. citizens.Penal Code section 113 (enacted as part of Proposition 187) prohibits the manufacture, distribution or sales of false documents to conceal the true citizenship or resident alien status of another person. The defense of factual impossibility does not preclude conviction under section 113 if the purchasers of the false documents are United States citizens.id: 16074
Court did not err in failing to instruct on the affirmative defense of accident or mistake with regard to the offense of discharging a pollutant into navigable waters.Defendant argued the court erred in failing to instruct the jury on the affirmative defense of accident or mistake with regard to the offense of discharging a pollutant into navigable waters. However, knowledge that a material is a pollutant is not an element of the offense, and thus a mistake of law concerning the matter is not a defense.id: 15495
Since having sex with a 16 year-old is a felony although not as severe as if the victim was 14 the trial court did not err in failing to instruct on reasonable belief that the victim was 16.Under Penal Code section 261.5, an adult who has sex with a 16 year-old is guilty of a felony. The offense is aggravated if the victim is under 16. Defendant's reasonable belief that the victim was 16 years old was a defense to the non-forcible sex offenses. However, whether defendant reasonably and in good faith believed the victim as 16 rather than 14 is of no import. It was not a potential defense. Defendant was not entitled to a mistake of fact instruction.id: 14851
CALJIC 1.23.1 regarding consent does not shift the burden of proof on consent to the defense or violate due process.Defendant was convicted of assault with intent to commit unlawful oral copulation. The trial court instructed with CALJIC 1.23.1 that consent is the positive cooperation in act or in attitude pursuant to an exercise of free will and that a previous or current dating relationship is not sufficient to constitute consent. The instruction did not shift the burden of proof on consent to the defense or create a presumption of lack of consent. Considered with the other instructions it was clear the prosecution had the burden of proving lack of consent.id: 13156
Court did not err in failing to instruct on mistake of law where evidence did not support appellant's claim of a good faith mistake.Appellant was convicted of violating a child custody order. He argued that he believed the Washington custody order was invalid in California and the court erred in refusing to instruct the jury on mistake of law as a defense. However, if appellant truly believed the Washington order was unenforceable he would not have acted as he did: hide from his ex-wife and the law, and even flee the country.id: 13157
Honest but unreasonable mistake of fact instructions were not necessary given appellant's active role in the killing.Appellant argued the court erred in not instructing that an honest but unreasonable belief that the victims were dead when he struck them would negate intent to kill. While the mistake-of-fact theory may have some merit in the abstract, it was not supported in the present case. The defendant played an active role both in the acts which actually killed the victims and in the acts, which under his theory, he believed killed them.id: 13158
Instruction on mistake of fact based on a hallucinatory episode was not supported by the evidence.Defendant argued the trial court erred in failing to instruct on mistake of fact since at some critical moment defendant may have believed the policeman he killed was a public enemy of some kind, whom he would resist and vanquish. However, mistake of fact based on a hallucinatory episode was not present by the evidence produced in court and was not relied on by the defense.id: 13159
Mistake of fact defense did not apply to appellant who assisted a person he believed to be an agent of the police in the manufacture of a controlled substance.Appellant argued the trial court erred in failing to instruct sua sponte that police agents are immune from Health and Safety Code prosecutions and if he mistakenly believed he was helping an agent of the police he could not be found guilty. Appellant testified that he believed his friend Wolden was acting as an agent of the police when he discussed the manufacturing process with appellant and appellant agreed to allow Wolden to use his garage for his experiments. The mistake of fact defense did not apply to these facts because appellant's testimony revealed that while he did not intend to break the law, he did intend to assist in the manufacturing of a controlled substance. His belief that whatever immunity an informant had extended to him was an inexcusable mistake of law.id: 13160
Mistake of fact defense does not apply to felony committed while out on bail enhancement.After a bifurcated court trial, the trial judge found defendant committed the theft while out on bail from another offense pursuant to Penal Code section 12022.1. The court expressly found that defendant reasonably believed the earlier case was no longer pending. However, the mistake of fact defense does not apply to the allegation of an enhancement under section 12022.1.id: 13161
Mistake of age is not a defense to the charge of selling drugs to a minor.A defendant's mistake about the age of a person to whom he makes a drug sale is not a defense to the charge of furnishing a controlled substance to a minor under Health and Safety Code Section 11353.id: 10746
An implicit after-the-fact consent does not constitute an automatic defense to the crime of burglary and no sua sponte instruction on the subject was required.Defendant argued the trial court erred by failing to instruct the jury sua sponte that his sister's consent to his taking her property constituted a defense to the burglary charge. The defense had claimed defendant had silent permission to enter and take the property although he was never told that until long after the event had taken place. However, an implicit after-the-fact consent does not constitute an automatic defense to a burglary charge and the court was not required to so instruct.id: 10334
Instruction on rape defendant's reasonable but mistaken belief as to consent was not required where the defendant testified to actual consent and there was no evidence of equivocal conduct.. Substantial evidence did not warrant an instruction on reasonable and good faith but mistaken belief of consent to sexual intercourse where defendant testified that the victim actually consented and the victim testified the encounter occurred only after defendant punched and threatened her. Such an instruction is required where there is substantial evidence of <U>equivocal</U> conduct that could be reasonably and in good faith relied on to form a mistaken belief in consent, despite the alleged temporal context in which that equivocal conduct occurred. However, a reasonable mistake of fact may not be found if the jury finds that such equivocal conduct on the part of the victim was the product of force, violence, duress, menace, or fear of unlawful bodily injury on the person or another.id: 10078
A minor may not raise the mistake-of-age defense to the section 288 charge.A juvenile court found the minor had committed lewd acts upon a child under the age of 14. The minor argued that a reasonable, good-faith belief that the victim is 14 years old or older should be a defense to a minor in a Penal Code section 288 charge. However, allowing the minor to raise the mistake-of-age defense to a section 288 charge runs contrary to the purpose of the statute.id: 9912
Reasonable mistake of age defense is not available in a prosecution for kidnapping a person under the age of 14.A defendant charged with kidnapping a person under the age of 14 years (Penal Code sections 207, subdivision (a) and 208, subdivision (b)) may not rely on the defense of reasonable mistake as to the victim's age.id: 9780
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245