CALCRIM No. 3407. Defenses: Mistake of Law
Judicial Council of California Criminal Jury Instructions (2023 edition)Download PDF
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.
New January 2006
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) 54 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, 544 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 (3d ed. 2000)
Defenses, § 37.) 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
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 & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 46.)
1 Witkin & Epstein, California Criminal Law (4th Ed. 2012) Defenses, §§ 45-46.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.07 (Matthew Bender).
CALCRIM No. 3407 DEFENSES AND INSANITY