SERIES 3400 DEFENSES AND INSANITY
F 3407 Defenses: Mistake Of Law
TABLE OF CONTENTS
F 3407 Inst 1 Delete Mistake Of Law Instruction As Duplicative And Argumentative
F 3407 Inst 2 (a & b) Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
F 3407 Inst 3 Mistake Of Law May Negate Specific Intent
F 3407 Inst 4 Jurors Must Unanimously Reject Any Defenses Before Convicting
F 3407 Inst 5 Pinpoint Instruction On Mistake Of Law
F 3407 Inst 6 (a-c) Vagueness Of Law As Relevant To Mistake Of Law
Return to Series 3400 Table of Contents.
F 3407 Inst 1 Delete Mistake Of Law Instruction As Duplicative And Argumentative
*Modify CC 3407 as follows:
[Delete CALCRIM 3407]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—The jurors’ only function is to decide whether the elements of the charge have been proven beyond a reasonable doubt. (See FORECITE F 104.1 Inst 1.) So long as they are properly instructed on this duty and the required elements, any instruction on elements or facts not required to be decided is improper. (See FORECITE F 416.3 Inst 4.)
In the case of the required criminal intent, the element instructions should explain what must be found. Hence, it is improperly duplicative and argumentative to instruct on immaterial defenses such as mistake of law. (Ibid.)
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 5.4.1 [Instructions That Suggest An Opinion As To An Essential Fact, An Element Or Guilt]
FORECITE CG 5.4.2 [Argumentative Instructions Not Suggesting Opinion On Guilt]
FORECITE CG 5.4.3 [Undue Emphasis Of Specific Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 3407 Inst 2 (a & b) Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
*Add after CC 3407 [if CC 3407 is not deleted; but see FORECITE F 3404 Inst 1]:
Alternative a [fact not disputed]:
However, the fact that the defendant did not know (he/she) was breaking the law is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the alleged __________________] [______________ <insert alleged specific element to which the evidence relates>].
Alternative b [fact disputed]:
However, whether or not the defendant did not know (he/she) was breaking the law is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the alleged __________________] [______________ <insert alleged specific element to which the evidence relates>].
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 3407 Inst 3 Mistake Of Law May Negate Specific Intent
Alternative a:
*Replace CC 3407 with:
The defendant’s honest but mistaken belief that [his] [her] conduct did not violate the law may negate the intent necessary to convict [him] [her] of __________.
If the evidence 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]:
See FORECITE F 416.6 Inst 5.
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.)
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 3407 Inst 4 Jurors Must Unanimously Reject Any Defenses Before Convicting
See FORECITE F 3500.2 Inst 4.
F 3407 Inst 5 Pinpoint Instruction On Mistake Of Law
See FORECITE F 415.6 Inst 5.
F 3407 Inst 6 (a-c) Vagueness Of Law As Relevant To Mistake Of Law
Alternative a [CC 105, paragraph 3 format]:
*Add to CC 3407 as follows:
In evaluating whether the prosecution has proved beyond a reasonable doubt that the defendant specifically intended to violate the law, you may consider anything that reasonably bears on the defendant’s actual intent. Among the factors to consider is whether or not the statute was vague.
Alternative b [CC 3427]:
*Add to CC 3407:
Consider any evidence that the language of the statute was vague in attempting to decide whether the prosecution has proved beyond a reasonable doubt that the defendant specifically intended to violate the law.
Alternative c [CC 105/1156 format]:
Among the factors to consider in deciding whether the prosecution has proved beyond a reasonable doubt that the defendant specifically intended to violate the law is whether or not the statute was vague.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Vagueness Of Statute As Relevant To Mistake Of Law—See People v. Urziceanu (2005) 132 CA4th 747, 780-81 [evidence that law is vague bears on whether the defendant specifically intended to violate that law].
Right To Pinpoint Instruction Relating Defense Theory To Prosecution’s Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
Right To Requested Instruction On Relevant Individual Factors—The defense has the right to instruction on specific factors relevant to the defendant’s theory of the case. (See generally People v. Gurule (2002) 28 C4th 557, 660 [“criminal defendant has the right to instructions that pinpoint the theory of the defense case”]; see also e.g., CC 315 [Eyewitness Identification]; CC 335 [Accomplice Testimony: No Dispute Whether Witness Is Accomplice]; CC 336 [In-Custody Informant]; CC 350 [Character of Defendant]; CC 3427 [Involuntary Intoxication]; CC 3428 [Mental Impairment: Defense to Specific Intent or Mental State] and CC 3429 [Reasonable Person Standard for Physically Disabled Person].)
Moreover, the prosecution also is allowed to obtain instruction on specific evidentiary factors. (See e.g., CC 362 [Consciousness of Guilt: False Statements]; CC 370 [Motive]; CC 371 [Consciousness of Guilt: Suppression and Fabrication of Evidence]; CC 372 [Defendant’s Flight].) It would be unfair and a denial of due process to give such prosecution instructions and not give defense requested instruction on specific evidentiary factors. (See Wardius v. Oregon (73) 412 US 470 [37 LEd2d 82; 93 SCt 2208]; see also FORECITE F 372.4 Inst 1.)
