CALCRIM No. 3406. Mistake of Fact
Judicial Council of California Criminal Jury Instructions (2020 edition)Download PDF
3406.Mistake of Fact
The defendant is not guilty of <insert crime[s]> if (he/she)
did not have the intent or mental state required to commit the crime
because (he/she) [reasonably] did not know a fact or [reasonably and]
mistakenly believed a fact.
If the defendant’s conduct would have been lawful under the facts as
(he/she) [reasonably] believed them to be, (he/she) did not commit
If you find that the defendant believed that <insert alleged
mistaken facts> [and if you find that belief was reasonable], (he/she) did
not have the specific intent or mental state required for
If you have a reasonable doubt about whether the defendant had the
specific intent or mental state required for <insert
crime[s]>, you must find (him/her) not guilty of (that crime/those
New January 2006; Revised April 2008, December 2008, August 2014, September
The court must instruct on a defense when the defendant requests it and there is
substantial evidence supporting the defense. The court has a sua sponte duty to
instruct on a defense if there is substantial evidence supporting it and either the
defendant is relying on it or it is not inconsistent with the defendant’s theory of the
When the court concludes that the defense is supported by substantial evidence and
is inconsistent with the defendant’s theory of the case, however, it should ascertain
whether defendant wishes instruction on this alternate theory. (People v. Gonzales
(1999) 74 Cal.App.4th 382, 389-390 [88 Cal.Rptr.2d 111]; People v. Breverman
(1998) 19 Cal.4th 142, 157 [77 Cal.Rptr.2d 870, 960 P.2d 1094].)
Substantial evidence means evidence of a defense, which, if believed, would be
sufficient for a reasonable jury to find a reasonable doubt as to the defendant’s guilt.
(People v. Salas (2006) 37 Cal.4th 967, 982-983 [38 Cal.Rptr.3d 624, 127 P.3d 40].)
If the defendant is charged with a general intent crime, the trial court must instruct
with the bracketed language requiring that defendant’s belief be both actual and
If the mental state element at issue is either specific criminal intent or knowledge,
do not use the bracketed language requiring the belief to be reasonable. (People v.
Reyes (1997) 52 Cal.App.4th 975, 984 & fn. 6 [61 Cal.Rptr.2d 39]; People v.
Russell (2006) 144 Cal.App.4th 1415, 1425-1426 [51 Cal.Rptr.3d 263].)
Mistake of fact is not a defense to the following crimes under the circumstances
1. Involuntary manslaughter (People v. Velez (1983) 144 Cal.App.3d 558, 565-566
[192 Cal.Rptr. 686] [mistake of fact re whether gun could be fired]).
2. Furnishing cannabis to a minor (Health & Saf. Code, § 11352; People v. Lopez
(1969) 271 Cal.App.2d 754, 760-762 [77 Cal.Rptr. 59]).
3. Selling narcotics to a minor (Health & Saf. Code, § 11353; People v. Williams
(1991) 233 Cal.App.3d 407, 410-411 [284 Cal.Rptr. 454] [specific intent for the
crime of selling narcotics to a minor is the intent to sell cocaine, not to sell it
to a minor]).
4. Aggravated kidnapping of a child under the age of 14 (Pen. Code, § 208(b);
People v. Magpuso (1994) 23 Cal.App.4th 112, 118 [28 Cal.Rptr.2d 206]).
5. Unlawful sexual intercourse or oral copulation by person 21 or older with
minor under the age of 16 (Pen. Code, §§ 261.5(d), 287(b)(2); People v. Scott
(2000) 83 Cal.App.4th 784, 800-801 [100 Cal.Rptr.2d 70]).
6. Lewd and lascivious conduct with a child under the age of 14 (Pen. Code,
§ 288(a); People v. Olsen (1984) 36 Cal.3d 638, 645-646 [205 Cal.Rptr. 492,
685 P.2d 52]).
• Instructional Requirements. Pen. Code, § 26(3).
• Burden of Proof. People v. Mayberry (1975) 15 Cal.3d 143, 157 [125 Cal.Rptr.
745, 542 P.2d 1337].
• This Defense Applies to Attempted Lewd and Lascivious Conduct With Minor
Under 14. People v. Hanna (2013) 218 Cal.App.4th 455, 461 [160 Cal.Rptr.3d
Mistake of Fact Based on Involuntary Intoxication
A mistake of fact defense can be based on involuntary intoxication. (People v. Scott
(1983) 146 Cal.App.3d 823, 829-833 [194 Cal.Rptr. 633].) In Scott, the court held
that the defendant was entitled to an instruction on mistake of fact, as a matter of
law, where the evidence established that he unknowingly and involuntarily ingested
a hallucinogen. As a result he acted under the delusion that he was a secret agent in
a situation where it was necessary to steal vehicles in order to save his own life and
possibly that of the President. The court held that although defendant’s mistake of
fact was irrational, it was reasonable because of his delusional state and had the
mistaken facts been true, his actions would have been justified under the doctrine of
necessity. The court also stated that mistake of fact would not have been available if
defendant’s mental state had been caused by voluntary intoxication. (Id. at pp.
DEFENSES AND INSANITY CALCRIM No. 3406
829-833; see also People v. Kelly (1973) 10 Cal.3d 565, 573 [111 Cal.Rptr. 171,
516 P.2d 875] [mistake of fact based on voluntary intoxication is not a defense to a
general intent crime].)
Mistake of Fact Based on Mental Disease
Mistake of fact is not a defense to general criminal intent if the mistake is based on
mental disease. (People v. Gutierrez (1986) 180 Cal.App.3d 1076, 1084 [225
Cal.Rptr. 885]; see People v. Castillo (1987) 193 Cal.App.3d 119, 124-125 [238
Cal.Rptr. 207].) In Gutierrez, the defendant was charged with inflicting cruel injury
on a child, a general intent crime, because she beat her own children under the
delusion that they were evil birds she had to kill. The defendant’s abnormal mental
state was caused in part by mental illness. (People v. Gutierrez, supra, 180
Cal.App.3d at pp. 1079-1080.) The court concluded that evidence of her mental
illness was properly excluded at trial because mental illness could not form the basis
of her mistake of fact defense. (Id. at pp. 1083-1084.)
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 47.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.06 (Matthew Bender).
CALCRIM No. 3406 DEFENSES AND INSANITY