3407. Defenses: Mistake of Law
It is not a defense to the crime[s] of <insert crime[s]> that the defendant did not know (he/she) was breaking the law or that (he/she) believed (his/her) act was lawful.
There is no sua sponte duty to give this instruction. It is no defense to a crime that the defendant did not realize he or she was breaking the law when he or she acted. (People v. Vineberg (1981) 125 Cal.App.3d 127, 137 [177 Cal.Rptr. 819].) This is true even when the defendant claims he or she was acting in good faith on the mistaken advice of counsel. (People v. Snyder (1982) 32 Cal.3d 590, 593 [186 Cal.Rptr. 485, 652 P.2d 42] [defendant's mistaken belief, based on attorney's advice, that prior conviction was a misdemeanor no defense to felon in possession of a firearm]; People v. McCalla (1923) 63 Cal.App. 783, 795 [220 P. 436], disapproved on other grounds by People v. Elliot (1960) 59 Cal.2d 498 [6 Cal.Rptr. 753, 354 P.2d 225]; People v. Honig (1996) 48 Cal.App.4th 289, 347-348 [55 Cal.Rptr.2d 555]; People v. Smith (1966) 63 Cal.2d 779, 792- 793 [48 Cal.Rptr. 382, 409 P.2d 222] [no defense to felony murder that defendant did not know that entering a store intending to pass a forged check constituted burglary in California].)
The court should, however, exercise caution with specific intent crimes. A mistaken belief about legal status or rights may be a defense to a specific intent crime if the mistake is held in good faith. (People v. Vineberg (1981) 125 Cal.App.3d 127, 137 [177 Cal.Rptr. 819] [defendants' belief that they had a legal right to use clients' gold reserves to buy future contracts could be a defense if held in good faith]; (People v. Stewart (1976) 16 Cal.3d 133, 140 [127 Cal.Rptr. 117, 549 P.2d 1317] [defendant's good faith belief that he was legally authorized to use property could be defense to embezzlement]; People v. Flora (1991) 228 Cal.App.3d 662, 669-670 [279 Cal.Rptr. 17] [defendant's belief, if held in good faith, that out-of-state custody order was not enforceable in California could have been basis for defense to violating a child custody order]; see also 1 Witkin & Epstein, California Criminal Law (2d ed. 1988) Defenses, § 219.) Although concerned with knowledge of the law, a mistake about legal status or rights is a mistake of fact, not a mistake of law. (See CALCRIM No. 3406, Mistake of Fact.)
Instructional Requirements. People v. Vineberg (1981) 125 Cal.App.3d 127, 137 [177 Cal.Rptr. 819]; People v. Stewart (1976) 16 Cal.3d 133, 140 [127 Cal.Rptr. 117, 544 P.2d 1317]; People v. Flora (1991) 228 Cal.App.3d 662, 669-670 [279 Cal.Rptr. 17].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, §§ 37-38.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, § 73.07 (Matthew Bender).
Good Faith Reliance on Statute or Regulation
Good faith reliance on a facially valid statute or administrative regulation (which turns out to be void) may be considered an excusable mistake of law. Additionally, a good faith mistake-of-law defense may be established by special statute. (See 1 Witkin, California Criminal Law (2d ed. 1988) Reliance on Statute, § 220.)
(New January 2006)