SERIES 3300 NON-CALCRIM DEFENSES
F 3311 Reliance on advice of counsel
TABLE OF CONTENTS
F 3311 Inst 1 Reliance On The Advice Of Counsel May Negate Specific Intent
F 3311 NOTES
F 3311 Note 1 Good Faith Reliance On Advice Of Attorney
Return to Series 3300 Table of Contents.
F 3311 Inst 1 Reliance On The Advice Of Counsel May Negate Specific Intent
Alternative a:
The defendant’s honest but mistaken belief that [his] [her] conduct did not violate the law, based in whole or part on the advice of counsel, may negate the intent necessary to convict [him] [her] of __________.
If [all the evidence] [the evidence of defendant’s reliance on counsel] leaves you with a reasonable doubt about whether the defendant’s mistaken belief negated the intent you must find that such intent was not formed.
Alternative b [Pinpoint Instruction CC 3400 Format]:
The prosecution must prove that the defendant had the specific intent to violate the law. The defendant contends (he/she) did not have intend to violate the law because (he/she) acted in whole or part on the advice of counsel. However, the defendant does not need to prove that (he/she) relied on counsel or that (he/she) lacked the intent to violate the law. Instead, the prosecution must prove every essential fact and element of the charge, including that defendant intended to violate the law, beyond a reasonable doubt.
If you have a reasonable doubt about whether the prosecution has met this burden you must vote to find the defendant not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Mistake Of Law To Negate Specific Intent—Under California law, ignorance or mistake of law can negate the existence of specific intent so long as the mistake is made honestly and in good faith. (People v. Smith (1966) 63 C2d 779, 793; People v. Goodin (1902) 136 C 455, 458-59; People v. Urziceanu (2005) 132 CA4th 747, 775-80; People v. Vineberg (1981) 125 CA3d 127, 137; see also Comment to CJ 4.36; CALCRIM 3407, Bench Notes.) Hence, mistaken reliance on the advice of counsel should be a basis for negating such specific intent. (Compare P v Chacon [cite & blurb from 4.006].)
As to reasonable doubt requirement see FORECITE PG III(D).
WARNING! Federal constitutional claims may be lost without proper federalization—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES
Whether a mistake of law claim is advanced in good faith does not depend solely upon whether the claimant believed he was acting lawfully; the circumstances must be indicative of good faith. (People v. Stewart (1976) 16 C3d 133, 140; see also People v. Flora (1991) 228 CA3d 662, 669; 1 Witkin & Epstein, Cal. Criminal Law (2nd Ed. 1988) Defenses, § 220, p. 254.)
CALJIC NOTE: See FORECITE F 4.003a and F 4.36a.
F 3311 NOTES
F 3311 Note 1 Good Faith Reliance On Advice Of Attorney
Private attorneys interpret and advise their clients on the application of statutes under all kinds of circumstances. Yet the average citizen cannot rely on a private lawyer’s erroneous advice as a defense to a general intent crime. (See People v. Chacon (2007) 40 C4th 558, 572; People v. Aresen (1949) 91 CA2d 26, 35; People v. McCalla (1923) 63 CA783, 793.) However, such reliance may negate specific intent. (See People v. Vineberg (1981) 125 CA3d 127, 137.)
