I. INTRODUCTION
A jury found defendant, Brent Kerrigan Lawson, guilty of petty theft for stealing a $20 hoodie from a Walmart store. (Pen. Code, § 484, subd. (a).)
On this appeal, defendant claims his conviction for petty theft must be reversed because the trial court erroneously failed to instruct the jury, sua sponte, on the defense of mistake of fact. He argues the jury could have reasonably inferred he simply forgot about the hoodie, which was draped over his shoulder as he passed through the checkout line, paid for other items, and walked out of the store. And given that he forgot about the hoodie, he argues the jury could have reasonably inferred he did not intend to steal it when he walked out of the store with it.
We agree the evidence supported a reasonable inference that defendant simply forgot about the hoodie and therefore did not intend to steal it. Nonetheless, the evidence that defendant forgot about the hoodie was insufficient to support an instruction on the defense of mistake of fact. (§ 26, class Three; CALCRIM No. 3406.) The mistake-of-fact defense operates to negate the requisite criminal intent or mens rea element of the crime, but applies only in limited circumstances, specifically when the defendant holds a mistaken belief in a fact or set of circumstances which, if existent or true, would render the defendant’s otherwise criminal conduct lawful. (See, e.g., People v. Hernandez (1964)
We further conclude that, even if there had been sufficient evidence to support an instmction on the defense of mistake of fact, the trial court did not have a duty to instmct on the defense sua sponte, or on any other defense that served only to negate the intent element of the charged crime, including
II. FACTS
A. Prosecution Evidence
On October 28, 2010, William Gibson was working as a loss prevention agent at the Walmart store in Rancho Cucamonga. Around 10:00 a.m., Gibson was doing paperwork and watching video surveillance of the store from inside his office next to the customer service registers. Around 10:10 a.m., defendant walked into the store and proceeded directly to the customer service area, where he returned some items and was issued a gift card.
After he received a call from the customer service desk that defendant was leaving the area, Gibson left his office and began following defendant inside the store. Gibson observed defendant as he went to the jewelry department, returned a pair of earrings, and received another gift card. The two gift cards defendant received were for approximately $104 and $124.
Defendant then proceeded to the menswear department where he selected a purple hoodie. After defendant selected the hoodie, he walked to the “middle action alley” of the store, an empty space in the center of the store that customers walk through. There, defendant took the hoodie off its hanger, put the sales tag inside the hoodie, threw the hoodie over his shoulder, and walked to the cash registers. The price of the hoodie was $20, and its sales tag had a bar code that is scanned at the register.
Defendant first walked to the area of register No. 15. He then proceeded to register No. 11 where he selected a pack of gum, and returned to register No. 15. At register No. 15, he had the cashier select some cigars or cigarettes for him. The cashier scanned the gum and cigarettes and defendant paid for them. Defendant did not take the hoodie off his shoulder or present it to the cashier. Five or six minutes passed between the time defendant selected the hoodie in the menswear department and the time he purchased the other items at the register.
After paying for the gum and cigarettes, defendant walked out of the store. As soon as he was outside the store, Gibson stopped him. The hoodie was
B. Defense Evidence
Defendant did not testify, and the defense presented no other evidence.
III. ANALYSIS
During closing argument, defendant’s trial counsel maintained that the prosecution failed to prove defendant intended to steal the hoodie when he walked out of the store with it on his shoulder. As submitted: “[D]id Mr. Gibson jump to the conclusion that [defendant] was stealing? Did the People prove this case beyond a reasonable doubt that [defendant] had the intent to deprive Walmart of their property? And the answer is no. Because [defendant] merely forgot. And that’s a reasonable interpretation of what occurred.” “How do we know that [defendant] didn’t just forget?”
Defendant contends the trial court erroneously failed to instruct the jury, sua sponte, on the defense of ignorance or mistake of fact. He argues: “Because there was sufficient evidence from which a reasonable jury could have found that [defendant] did not intend to steal the sweatshirt, and because the defense’s theory of the case was that [defendant] had committed nothing more than an absent-minded mistake (analogous to inadvertently pocketing a borrowed pen), the superior court had a sua sponte duty to instruct the jury on the defense of mistake of fact—which is a complete defense to a charge of petty theft.”
A. The “Defense ” of Mistake of Fact Does Not Apply to the Present Facts
Defendant’s claim that he simply forgot the hoodie was on his shoulder as he went through the checkout line and walked out of the store does not square with the requirements for the defense of ignorance or mistake of fact. As we explain, the defense of mistake of fact is simply inapplicable to these facts.
Defendant was charged with petty theft, specifically theft by larceny. (§ 484.) “The elements of theft by larceny are well settled: the offense is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with intent to steal the property, and (6) carries the property away. [Citations.] The
The requirement that a criminal act be accompanied by criminal intent or criminal negligence is a “firmly embedded” principle of Anglo-American criminal jurisprudence. (Staples v. United States (1994)
Section 26 lists classes of persons deemed incapable of committing crimes, and includes “[p]ersons who committed the act . . . charged under an ignorance or mistake of fact, which disproves any criminal intent” (§ 26, class Three); “without being conscious thereof’ (§ 26, class Four); or “through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence” (§ 26, class Five). Section 26 thus describes a range of circumstances or “defenses” which, the Legislature has recognized, operate to negate the mental state element of crimes and show there is no union of act and criminal intent or mental state. (See, e.g., People v. Jennings (2010)
Notwithstanding the myriad circumstances or “defenses” that may operate to negate the mental state element of a given crime, the particular “defense” of mistake of fact requires, at a minimum, an actual belief “in the existence of circumstances, which, if true, would make the act with which the person is charged an innocent act . . . .” (People v. Russell (2006)
Russell illustrates the proper application of the mistake-of-fact defense. In Russell, a person’s motorcycle broke down while he was riding it, and he pushed it to a nearby repair shop. (Russell, supra,
Defendant relies on Russell to support his claim that his act of forgetting about the hoodie constituted a mistake of fact. Russell is distinguishable because the evidence there showed that the defendant had an actual and reasonable belief in a set of circumstances—that the motorcycle had been abandoned—which, if true, would have shown he did not knowingly possess a stolen motorcycle. Here, by contrast, defendant’s alleged mistake of fact was that he forgot the hoodie was on his shoulder when he walked out of the
We observe that the mistake-of-fact defense would apply if defendant had been in the store earlier during the day, left his hoodie there, returned to get it, and, .believing that someone had hung it up, took it off the hanger and walked out with it over his shoulder. The act of walking out of the store with the hoodie and without paying for it would be innocent because in this hypothetical defendant would have believed, although mistakenly, that the hoodie he had left in the store earlier, and the one he had on his shoulder when he walked out of the store, was rightfully his.
The present case is similar to People v. Osborne (1978)
B. The Trial Court Had No Sua Sponte Duty to Instruct on Mistake of Fact or Any Similar Defense That Only Negated the Mental State Element of Theft by Larceny
Even if the evidence supported an instruction on mistake of fact, the trial court did not have a duty to instruct on the defense sua sponte. In Anderson, supra,
As Anderson explained: “ ‘In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury’s understanding óf the case.’ (People v. Martinez (2010)
The Anderson court further explained that the defense of accident serves only to negate the mental state element of the offense charged, and as such
Like the defense of accident, an instruction on the defense of mistake of fact would have served only to negate the mental state element of the crime of theft by larceny. Thus, at least as asserted here, the defense of mistake of fact was not a true affirmative defense. (See People v. Salas (2006)
As argued by defense counsel, defendant’s true defense was that he simply forgot the hoodie as he walked out of the store without paying for it, and for this reason he did not intend to steal it. The “I forgot about it” defense amounted to no more than a claim that defendant took the hoodie out of the store without intending to steal it. The jury was properly instructed on the mental state element of theft by larceny pursuant to CALCRIM No. 1800 [“[w]hen the defendant took the property, he intended to deprive the owner of it permanently . . . .”].) The instruction on the mental state element of theft by larceny was sufficient to frame the issue of defendant’s forgetfulness for the jury, which defense counsel so eloquently and expressly argued to the jury.
We observe that in the wake of Anderson, supra,
IV. DISPOSITION
The judgment is affirmed.
Hollenhorst, Acting P. L, and Codrington, 1, concurred.
Appellant’s petition for review by the Supreme Court was denied June 26, 2013, S210732.
Notes
All further statutory references are to the Penal Code unless otherwise indicated.
The court also found defendant had three prison priors (§ 667.5, subd. (b)) and sentenced him to five years in prison, consisting of the middle term of two years plus three years for the three prison priors.
The jury was instructed pursuant to CALCRIM No. 1800 that in order to prove defendant guilty of the crime of theft, the People had to prove he (1) took possession of property owned by someone else; (2) took the property without the owner’s or owner’s agent’s consent; (3) when he took the property, “he intended to deprive the owner of it permanently or to remove it from the owner’s or owner’s agent’s possession for such an extended period of time that the owner would be deprived of a major portion of the value or enjoyment of the property”; and (4) he moved the property even a small distance and kept it for any period of time, however brief. (Italics added.)
The “ ‘[a]ctus reus’ ” of a crime is defined as “ ‘the physical aspect of a crime, whereas the mens rea (guilty mind) involves the intent factor.’ [Citation.]” (Foster v. Snyder (1999)
In this critical respect, the present case differs from Russell and numerous other cases illustrating the traditional application of the mistake-of-fact defense. (E.g., People v. Goodman, supra,