No Sua Sponte Duty To Instruct On Defense Theory That Negates An Element Of The Offense; IAC For Failure To Request Defense Theory Instruction
February 9th, 2015


People v. Hussain (2014) 231 Cal. App. 4th 261, 269-72, extended the holding of People v. Anderson (2011) 51 Cal.4th 989, 998 [trial courts do not have a duty to instruct sua sponte on the defense of accident] to a situation where the defendant relied claim of right to negate the felonious intent to steal necessary for conviction of theft or robbery. “Stated simply, a claim of right to take disputed property negates the criminal intent necessary for theft. [Citation.]” (Barnett v. State Farm General Ins. Co. (2011) 200 Cal.App.4th 536, 544; see also People v. Tufunga (1999) 21 Cal.4th 935, 938.) Accordingly, Hussain concluded that the rationale of Anderson applies with equal force to any defense which negates an element of the offense including claim of right:


Since the claim of right defense, like accident or mistake of fact, serves only to negate the mental state required for grand theft, under Anderson the trial court had no duty to instruct sua sponte on it. Absent a request from either counsel, the trial court did not err in failing to instruct with CALCRIM No. 1863.

(Hussain, supra, at 269, see also People v. Lawson (2013) 215 Cal.App.4th 108, 117 [“the rationale of Anderson is applied with equal force to the defense of mistake of fact, or any other defense that operates only to negate the mental state element of the crime.”].)


Despite rejecting the appellate claim Hussain nonetheless reversed the conviction based on a claim of ineffective assistance of counsel:


Counsel’s failure to request an instruction on the key point of his client’s defense [e.g., CC 1863], which would have supported his argument, deprived defendant of his constitutional right to effective assistance of counsel and requires reversal of his conviction.


Hussain, supra, 231 Cal App. 4th at 272.


PG V(A)  Sua Sponte Duties

PG V(A)(2)  Duty to Instruct on General Principles, Elements and Theories

PG V(A)(6)  Duty To Instruct On Defenses

PG V(K) Instruction on Inconsistent Defenses.




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