Opinion
By infоrmation, defendant was charged with attempted receiving stolen property in violation of Penal Code sections 664 and 496. Defendant entered a plea of not guilty. Trial was by jury which found the defendant guilty as charged. Defendant was placed on probation. He appeals from the judgment (order granting probation). We reverse the judgment.
The sufficiency of the evidence admitted in the trial to sustain the conviction is not challenged on appeal. The facts stated herein are only those necessary to understand defendant’s contentions and our holding.
An undercover police officer sold certain items of jeweliy to defendant for $520 cash at defendant’s coin and stamp store. Thе officer told the defendant before the sale that these items had been stolen by him. These items were not in fact stolen property and never had been.
*475 The defendant testified that he believed the property was stolen and that the officer was really the thief. He further testified that the reason he purchased the items from the officer was that he was going to try to arrest the suspected thief because he was trying to sell stolen merchandise.
Instead, as soon as the officer had counted the money paid him by the defendant, he and his fellow officers immediately arrested the defendant.
The trial court’s instructions to the jury included CALJIC Nos. 3.31 (specific intent), 6.00 (attempt defined), 4.60 (entrapment—when a defense), 4.61 (furnishing opportunity is not entrapment) and a definition of the crime of attempted receiving stolen property set forth in full hereinafter. The instruction on entrapment as a defense (No. 4.60) was requested by the defense. No request was made by the defense for an instructiоn on mistake of fact (Pen. Code, § 26, subd. Four and CALJIC No. 4.35) and none was given sua sponte by the court.
The defendant contends as follows:
1. The trial court committed reversible error in failing to instruct sua sponte on mistake of fact and good faith trying to arrest the officer.
2. The trial court’s instruction on the crime of attemptеd receiving stolen property was erroneous.
3. He was denied effective counsel at trial because of her failure to request an instruction on mistake of fact and because of her erroneously requesting an instruction on entrapment as a defense.
Innocent Intent As Defense To Charge Of Attempted Receiving Stolen Property
Penal Code section 496 provides, in pertinent part: “1. Every person who buys or receives any property which has been stolen or which has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained ... is punishable . . . .” To establish guilt of the offense of receiving stolen property, proof of three elеments is required: (1) the property must have been stolen, (2) the accused must have received it in his possession, and (3) he must have known that it was stolen.
(People
v.
Martin
(1973)
*476
Former section 496 (repealed by Stats. 1951, ch. 97, § 1) as last amended provided, in pertinent part: “Evеry person
who for his own gain,
or
to prevent the owner from again possessing his property,
buys or receives any personal property, knowing the same to have been stolen . .. is punishable . . . .” (Italics added.) Under this statute, defendant’s guilty intent, consisting either of receiving the property for his own gain or to prevent thе owner from again possessing the property, was an element of the crime.
(People
v.
Ribolsi
(1891)
Under present section 496, while a specific fraudulent intent by the perpetrator (e.g., for his own gain or to prevent the owner from again possessing his рroperty) is not an element of the crime which the prosecution must prove, the absence of any such guilty intent is a defense which, if established, disproves the charge. (See
State
v.
Cohen
(1913)
When the property has not actually been stolen, but the person has the intent to receive stolen property and
believes
that the property is in fact stolen, the crime cоmmitted is that of
attempted
receiving of stolen property.
(People
v.
Rojas
(1961)
We hold that the innocent intent of returning the property to the true owner' is a defense to the charge of attempted receiving of stolen property. If the jury, under proper instructions, found it to be true that defendant in receiving the “stolen” proрerty only intended to effect the arrest of the thief, as he claimed twice in his testimony, such a finding would then necessarily include the idea that after the arrest the defendant and the property would be turned over to the police. The рolice would be the means by which the property would then be returned to the true owner.
*477 Duty, Sua Sponte, To Instruct On Innocent Intent
The duty of the trial court to instruct,
sua sponte,
on defenses is set forth as follows in
People
v.
Sedeno
(1974)
The defense here did not request an instruction on the theory of innocent intent as a defense to the charge. Also, it may not have appeared that the defendant was relying on such a defense and the trial judge cannot be asked to read the mind of defendant’s counsel as to what defenses he has strategically deсided to rely upon. However, there was substantial evidence supportive of such a defense and we hold that such a defense is not inconsistent with the defendant’s theory of the case.
Defendant requested an instruction on entrapment as a defense. (CALJIC No. 4.60.) The evidence certainly suggested such a defense as a possibility. The trial court would have been duty bound to have given an instruction on entrapment
sua sponte
if defense counsel had not requested it.
(People
v.
Grantham
(1972)
As a matter of legal theory, the defense of entraрment is not inconsistent with evidence that the defendant is not guilty of the crime charged; i.e., defendant may deny every element of the crime, yet allege that such acts as he did commit were induced by law enforcement officers.
(People
v.
Perez
(1965)
Was there then substantial evidence on the issue of innocent intent sufficient to alert the trial judge that it is an issue in the case? We hold that there was. “Needless to say, the trial court is not required to anticiрate every possible theory that may fit the facts or fill in every time a litigant or his counsel fails to discover some obscure but possible theory of the facts. As the court put it in
People
v.
Cram
(1970)
We therefore hold that the trial judge had the duty,
sua sponte,
to properly instruсt the jury on the defense of innocent intent. He failed to do so and we reverse the judgment. The error withdrew a defense requiring acquittal from consideration by the jury. The failure to give such an instruction resulted in a miscarriage of justice within the meaning of California Constitution, article VI, section 13.
(People
v.
Watson
(1956)
Although at this point we have disposed of the appeal by reversing the judgment, two more points should be clarified in the event of a retrial.
Mistake of Fact—Intent
Penal Code section 26 (four) provides in pеrtinent part as follows :
*479 “All persons are capable of committing crimes except those belonging to the following classes:
“Four—Persons who committed the act. . . charged under . . . mistake of fact, which disproves any criminal intent.” (Italics added.)
“In every crime or public offense there must exist а union, or joint operation of act and intent, or criminal negligence.” (Pen. Code, § 20.)
A good statement of the law on mistake of fact is “An act committed or an omission made under an ignorance or mistake of fact which disproves any criminal intent is not a crime. [U] Thus a person is not guilty of a crime if he commits an act or omits to act under an honest and reasonable belief in the existence of certain facts and circumstances which, if true, would make such act or omission lawful.” (Italics added.) (CALJIC No. 4.35.)
What constitutes this type of mistake of fact that becomes a defense to a criminal charge otherwise proven by the evidence is illustrated by
People
v.
Vogel
(1956)
The defendant’s mistake of fact belief that the undercover police officer was in fact the thief trying to sell stolen property to him is not such a mistake that, if true, would make his conduct in receiving the “stolen property” lawful. Every offender who deals with an undercover police officer is under a mistake of fact which operates to his extreme disadvantage, but this does not thereby make his criminal conduct lawful (i.e., decoy “prostitute,” undercover narcotic buys, etc.). The trial court was under no duty sua sponte or upon request to instruct on mistake of fact which did not amount to a defense under the evidence.
Instruction On Attempted Receiving Stolen Property
The trial court defined the charged crime as follows: “Evéry person who buys or receives any property which he believes has been stolen is guilty of the crime of attempted receiving stolen propеrty.” *480 Standing alone this is an erroneous oversimplification of the law as outlined hereinbefore. It omits the required intent to receive stolen property which the cases of Rojas and Moss, supra, define as an element of this crime.
Upon retrial of the case the instruction defining the crimе charged should be reworded so -as to include the omitted element of intent to receive stolen property.
Claimed Denial Of Effective Counsel
We need not and do not reach this contention, except as we have answered defendant’s contentions regarding mistake of fact and the entrapment instruction which was requested by defense counsel.
Our research failed to find any California cases on the defense of innocent intent as we have applied it to the offense charged. Defense counsel and for that matter, the trial judge, can hardly be criticized under such circumstances.
The judgment is reversed.
Files, P. J., and Kingsley, J., concurred.
Notes
Assigned by the Chairperson of the Judicial Council.