SERIES 3400 DEFENSES AND INSANITY
F 3406 Mistake Of Fact
TABLE OF CONTENTS
F 3406 Inst 1 Mistake Of Fact: Modification Of Burden Shifting Language
F 3406 Inst 2 (a & b) Bigamy: Mistake Of Fact As Defense (PC 281)
F 3406 Inst 3 Unlawful Sexual Intercourse: Mistake Of Fact As Defense (PC 261.5)
F 3406 Inst 4 Jurors Must Unanimously Reject Any Defenses Before Convicting
F 3406 Inst 5 Mistake Of Fact: Deletion Of Terms “General” and “Specific” Intent
F 3406 Notes
F 3406 Note 1 Mistake of Fact: CALCRIM Cross References And Research Notes
F 3406 Note 2 Right To Instruction On Mistake Of Fact
F 3406 Note 3 Claim Of Right: Overlap With Mistake Of Fact
F 3406 Note 4 Even If Knowledge Of Age Is Not An Element Of The Charge, Mistake Of Fact May Be An Affirmative Defense
F 3406 Note 5 Mistake Of Fact As To Specific Intent Or Mens Rea Need Not Be Reasonable
Return to Series 3400 Table of Contents.
F 3406 Inst 1 Mistake Of Fact: Modification Of Burden Shifting Language
*Replace CC 3406 [CC 3400 adaption]:
The prosecution must prove beyond a reasonable doubt that the defendant had the [specific intent] [and] [mental state] required for __________ <insert crime[s]>. The defendant contends that (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. The prosecution must prove the defendant had the required specific intent and/or mental state and committed the crime[s] with which (he/she) is charged. The defendant does not need to prove that (he/she) lacked the required [intent] [and] [mental state] or the (he/she) [reasonably] did not know a fact or [reasonably and] mistakenly believed a fact.
If you have a reasonable doubt about whether the defendant had [either] the required [intent] [and/or] [mental state] you must find (him/her) not guilty.
Points and Authorities
See FORECITE F 3402 Inst 1.
ALERT: Do not give bracketed “reasonably” language as to specific intent or mens rea elements. (See FORECITE F 3406 Note 5.)
F 3406 Inst 2 (a & b) Bigamy: Mistake Of Fact As Defense (PC 281)
Alternative a:
*Replace CC 3406 [CC 3400 adaption]:
The prosecution must prove beyond a reasonable doubt that the defendant had the [specific intent] [and] [mental state] required for __________ <insert crime[s]>. The defendant contends that (he/she) did not have the intent or mental state required to commit the crime because (he/she) [reasonably] did not know that (he/she) was married to _______________ <name of former spouse> when (he/she) married _______________ <name of new spouse>. The prosecution must prove the defendant had the required specific intent and/or mental state and committed the crime[s] with which (he/she) is charged. The defendant does not need to prove that (he/she) lacked the required [intent] [and] [mental state] or the (he/she) [reasonably] did not know a fact or [reasonably and] mistakenly believed a fact.
If you have a reasonable doubt about whether the defendant had [either] the required [intent] [and/or] [mental state] you must find (him/her) not guilty.
Alternative b:
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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Pinpoint Instruction Relating Defense Theory To Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
Mistake Of Fact As Defense To Bigamy—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 (1956) 46 C2d 798, 800-05.)
Alternative a, above, is adapted from CC 3400. Alternative b 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 (1995) 9 C4th 493, 500-01 [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.
ALERT: Do not give bracketed “reasonably” language as to specific intent or mens rea elements. (See FORECITE F 3406 Note 5.)
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
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 3425; F 7.32a.)
CALJIC NOTE: See FORECITE F 4.023a.
F 3406 Inst 3 Unlawful Sexual Intercourse: Mistake Of Fact As Defense (PC 261.5)
See FORECITE F 4.35c.
CALJIC NOTE: See FORECITE F 4.024a.
F 3406 Inst 4 Jurors Must Unanimously Reject Any Defenses Before Convicting
See FORECITE F 3500.2 Inst 4.
F 3406 Inst 5 Mistake Of Fact: Deletion Of Terms “General” and “Specific” Intent
Modify CC 3406 as follows: Delete references to “General” or “Specific” intent in the title and/or body of the instruction.
Points and Authorities
See FORECITE PG XI(H).
F 3406 Note 1 Mistake of Fact: CALCRIM Cross References And Research Notes
CALCRIM Cross-References:
CALCRIM 3404 [Accident]
Research Notes:
See CLARAWEB Forum, Defenses and Insanity – Series 3400
See also California Mandatory Criminal Jury Instruction Handbook (CJER) (2013) § 2.43
F 3406 Note 2 Right To Instruction On Mistake Of Fact
See People v. Russell (2006) 144 CA4th 1415, 1425-27.
F 3406 Note 3 Claim Of Right: Overlap With Mistake Of Fact
See People v. Russell (2006) 144 CA4th 1415, 1428-29 [“the defense can overlap”].
F 3406 Note 4 Even If Knowledge Of Age Is Not An Element Of The Charge, Mistake Of Fact May Be An Affirmative Defense
When knowledge of the victim’s age is an element of the charge the prosecution must prove that element beyond a reasonable doubt. (See, e.g., CC 1070; People v. Hernandez (1964) 61 C2d 529, 535-36.)
Moreover, even if knowledge of age is not an element, a good faith mistake of fact regarding the victim’s age may be an affirmative defense which the defendant is obligated to prove by a preponderance of evidence. (See People v. Jennings (2004) 34 C4th 254.)
F 3406 Note 5 Mistake Of Fact As To Specific Intent Or Mens Rea Need Not Be Reasonable
See People v. Russell (2006) 144 CA4th 1415, 1426-27; see also People v. Mares (2007) 155 CA4th 1007, 1010.