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F 4.023a
Bigamy: Mistake Of Fact As Defense
(PC 281)
Upon a trial of a charge of bigamy, a person’s marriage to more than one person is lawful if the person had an honest and reasonable belief that [he] [she] was unmarried at the time of the second marriage. The burden is on the prosecution to prove beyond a reasonable doubt that defendant’s marriage was unlawful, that is, defendant did not have an honest and reasonable belief that [he] [she] was unmarried. If you have a reasonable doubt as to whether defendant honestly and reasonably believed that he was unmarried, then you must find the defendant not guilty.
Points and Authorities
A person’s honest and reasonable belief that he or she is not married (e.g., prior spouse is believed deceased or divorced) is an affirmative defense to a charge of bigamy under PC 281. (People v. Vogel (56) 46 C2d 798, 800-05 [299 P2d 850].) The above instruction sets forth this defense and the prosecution’s burden following an accepted CALJIC form. (See CJ 5.15 re: self-defense; see also, People v. Simon (95) 9 C4th 493, 500-01 [37 CR2d 278] [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; EC 502; FORECITE F 4.45a; FORECITE F 5.15a.
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
NOTES
If there are specific factors present which relate to the reasonableness of defendant’s belief (e.g., intoxication, mental illness, physical disability), further instruction may be necessary. (See e.g., FORECITE F 7.32a.)
