Mistake of fact need not be reasonable to negate specific intent  for burglary

People v. Hendrix (Cal., Aug. 22, 2022, No. S265668) 2022 WL 3581973

 Summary: Hendrix walked around a house to the backyard, opened a screen door, and unsuccessful tried  to open the locked glass door behind it. Hendrix then sat down on a bench and stayed there. Hendrix was sitting on the bench when police arrived. Hendrix told police he was there to visit his cousin, but Hendrix’s cousin did not, in fact, live in the house. Hendrix was charged with burglary.

The trial court gave the jury a standard mistake of fact instruction, which informed jurors that they should not convict Hendrix if they determined he lacked criminal intent because he mistakenly believed a relevant fact —that the house belonged to his cousin and not to a stranger. The instruction specified that the mistake had to be a reasonable one. To negate the specific criminal intent required for burglary, a defendant’s mistaken belief need not be reasonable, just genuinely held. The issue before the California  Supreme Court was whether the instructional error was prejudicial and requires reversal. The Court of Appeal, concluded that Hendrix’s claim of mistake was not credible and reversal was not required. The Supreme Court held that the instructional error precluded the jury from giving full consideration to a mistake of fact claim that was supported by substantial evidence. Resolution of the issue was central to the question whether Hendrix possessed the criminal intent necessary for conviction. Whether that claim is credible is a matter for a jury to decide. The Supreme the judgment of the Court of Appeal and remand for further proceedings.

Elements of burglary and mistake of fact

According to CALCRIM No. 1700: “The defendant is charged with burglary. To prove the defendant is guilty of this crime, the People must prove that: One, the defendant entered a structure; and two, when the defendant entered a structure he intended to commit theft.”

The  defense requested CALCRIM No. 3406, concerning mistake of fact. That instruction provides that the defendant is not guilty of the charged crime if he lacked the mental state required to commit the crime because of a mistaken belief or lack of knowledge. As the bench notes indicate, the instruction can be given in two ways, depending on whether the crime is one of general intent — in which case the defendant’s belief must be both actual and reasonable — or specific intent, in which case the defendant need hold only an actual but mistaken belief in the relevant fact. (Judicial Council of Cal., Crim. Jury Instns. (2021) Bench Notes to CALCRIM No. 3406;

The jury was thus instructed on mistake of fact as follows:

“The defendant is not guilty of burglary if he did not have the intent or mental state required to commit the crime because he reasonably did not know a fact or reasonably and mistakenly believed a fact.  If the defendant’s conduct would have been lawful under the facts as he reasonably believed them to be, he did not commit burglary.

Burglary is a specific intent crime. (People v. Thompson (1980) 27 Cal.3d 303, 313.) It requires not only that a defendant enter a structure, but that he do so with a particular objective in mind: larceny (or any other felony). (Pen. Code, § 459; People v. Wallace (2008) 44 Cal.4th 1032) As the criminal jury instructions make clear, an unreasonable but honest mistaken belief in a fact can negate the required showing of intent. (Judicial Council of Cal., Crim. Jury Instns., supra, Bench Notes to CALCRIM No. 3406.)

The Supreme Court granted review, limited to two questions: (1) What standard of prejudice applies to the trial court’s error in instructing on mistake of fact, and (2) whether the Court of Appeal erred in holding the error harmless.

Mistake of fact is, generally speaking, “not a true affirmative defense.” (Lawson, supra, 215 Cal.App.4th at p. 118.)  It is an assertion by the defendant that a particular factual error in his perception of the world led him to lack the mens rea required for the crime. (See Pen. Code, § 26, paragraph [3] [persons are not capable of committing crimes if they “committed the act … under an ignorance or mistake of fact, which disproves any criminal intent”]

The jury was instructed that burglary is a specific intent crime, so it should have received a specific intent mistake of fact instruction that recognized the possibility that a genuine, if unreasonable, belief would negate a finding of criminal intent.

Harmless Error

The trial court’s instruction on mistake of fact was erroneous. But not every error at trial requires reversal; the law requires us to affirm a jury verdict despite instructional error if the error was harmless. The harmless-error doctrine “recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681)

A reviewing court must reverse if “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Watson, supra, 46 Cal.2d at p. 836.) “ ‘ “We have made clear that a ‘probability’ in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.” ’ ” (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050.)

The mistake of fact instruction at Hendrix’s trial told the jury that Hendrix lacked the requisite mens rea if his mistaken belief that he was visiting Trevor’s house was reasonable — implying, of course, the same was not true if his belief was unreasonable. But Hendrix’s mistake did not need to be reasonable; it was enough if it was genuinely held. At least as the case was presented to the jury, if Hendrix believed he was visiting Trevor’s house, then Hendrix lacked the mens rea for the crime. The misinstruction at Hendrix’s trial effectively operated to impose an unwarranted reasonableness requirement on Hendrix’s mistake of fact claim.

The law recognizes even an unreasonable mistake as grounds for acquittal under the circumstances. And there was substantial to support the conclusion that Hendrix made an unreasonable mistake. Because there is at least a reasonable probability a jury making that assessment would have given a different answer had it received correct instructions in this case,  the instructional error was prejudicial and requires reversal. The Court of Appeal erred in concluding otherwise.

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