Under California a law, “A mistake of fact that disproves the required intent for a crime" can amount to a defense against alleged criminal responsibility if the defense can raise a reasonable doubt regarding the existence of an element negated by mistake of fact.  For a specific crime such as theft, the mistaken belief need only be an actual belief, and need not be reasonable.  Recently, in People v. Speck, the California Courts have taken another look at this law, affirming that where (1)  there is substantial evidence supporting the mistake of fact defense, and (2) the defense asks that the jury be instructed on the Mistake of Fact defense, the judge must give the relevant jury instruction. In Speck, the defendant was arrested after he was found to be driving a stolen car.  At the trial, he testified that he had borrowed the car with permission from the person he beleived owned the car.  

​The 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.  For general intent crimes, the defendant's mistaken belief must be both actual and reasonable, but if the mental state of the crime is a specific intent or knowledge, then the mistaken belief must only be actual. 

So what happens if you make a mistake about a fact that is relevant to your criminal charges because you were intoxicated.  Whether you can use the defense will ultimately come down to whether you were voluntarily or involuntarily intoxicated. Voluntarily intoxicated? You will not be able to use the defense.  But Involuntarily intoxicated? You might. 

​If you have any questions about whether a Mistake of Fact defense may help your case, feel free to contact Devina. 

​As we as a society evolve, we hope that our laws evolve as well.  Enacted as of January 1, 2022, California passed a law which helps to offer a little leniency in sentencing for defendants who suffered certain traumas. 
 
Our law has long allowed for defendants to enter into a plea bargain, accepting responsibility for their criminal conduct, and in exchange, the prosecutor or judge will make certain promises, commitments, concessions, assurances, or give the case certain considerations. That said, previously, working within California’s relatively rigid sentencing scheme, judges often lacked the discretion to impose a sentence which adequately addressed these underlying factors where vulnerable populations were involved. AB 124 aimed to address this problem. Following the passage of AB 124, the legislature has directed that the court must now impose the low term prison sentence when the defense submits acceptable proof (1) of childhood trauma, (2) they were a victim of human trafficking, or (3) they were a victim of domestic violence, unless there are circumstances in aggravation which outweigh this evidence in the particular case.
 
 
The reason for the change is that the legislature specifically recognized “survivors of sexual violence, intimate partner violence, and other severe forms of trauma are more likely to be incarcerated. In fact, according to the ACLU, nearly 60% of female state prisoners nationwide and more than 90% of certain female prison populations experienced physical or sexual abuse before being incarcerated. Yet, California's legal system currently lacks any consideration for the relevant experiences of survivors in the sentencing or resentencing process,” and writes “AB 124 would provide a path for courts to consider the full context of the trauma that contributed to a survivor's actions or inactions. It would create a trauma-informed response to sentencing that provides just outcomes for survivors. Currently, the societal trauma caused by criminalizing these individuals spans generations and perpetuates cycles of abuse and trauma. … AB 124 ensures that survivors of sexual violence are able to receive justice through our legal system."
 
According to the National Center for Youth Law: "According to the ACLU, nearly 60% of female state prisoners nationwide and as many as 94% of certain female prison populations have a history of physical or sexual abuse before being incarcerated” and according to the Public Policy Institute of California, “Black women make up 25% of the incarcerated population in California, which when considered alongside the reality that Black women are only 5% of the adult population yet are incarcerated at five times the rate of white women, demonstrates a deplorable overrepresentation of Black women in prison.” 
 
The State’s decision to enact this law also considered that "despite the body of research showing that the effect of trauma and abuse drives girls into the juvenile and criminal justice systems, the system itself typically overlooks the context of abuse when determining whether to arrest or charge a girl. Many trafficking survivors are incarcerated for crimes committed to protect themselves from further violence. Numerous studies show that survivors of coerced into participating in illegal activities by their abusive partners.”[1] Further, it’s widely known many victims of domestic violence of human trafficking are reluctant to report the abuse as they distrust the systems,  are worried about how their attacker will respond to a report, or believe that they aren’t actually victims at all, and that they deserved what happened to them.[2]
 
…So while there are a lot of reasons to be frustrated with the state of our criminal justice system, it appears we should have hope that we are moving in the right direction. 
 
If you’d like to talk to Devina about your criminal case, feel free to reach out.

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[1] Survived and Punished, "Research Across the Walls: A Guide to Participatory Research Projects and Partnerships to Free Criminalized Survivors").

[2] See Institute of Medicine and National Research Council, Confronting Commercial Sexual Exploitation and Sex Trafficking of Minors in the United States: A Guide for the Health Care Sector.

​Social and legal commentators have observed that gang enhancements seem to be rarely applied toward the most serious and violent offenses, but instead are often applied toward misdemeanor offenses, disproportionately affecting people of color. According to the Young Women's Freedom Center "California's gang enhancement laws have caused immeasurable damage to our communities by criminalizing culture and relationships among people in low-income Black and Latino communities. While no empirical studies have been conducted to show that gang enhancements deter crime or violence, it is well documented that they have been applied inconsistently and disproportionately against people of color: 92% of people who receive gang enhancements are people of color. Gang enhancements have been the drivers of mass incarceration because of their vague definitions and weak standards of proof.”
 
Senator Kamlager, author of the bill that meant to change all this stated that the bill “just asks for the charges to be proven when they’re levied against someone. Right now, our system allows a shaved head, tattoos, or even the color of your grandma’s house as reason to be charged with a gang enhancement. That’s antithetical to how our judicial process should operate and I am glad we are one step closer to a fix.”
 
A recent change in the law is seeking to address these concerns. With regards to gang enhancements, “The Step Forward Act” does four things to try to rebalance the scales of justice.   First, it shortens the list of predicate offenses which support a finding that a person is engaged in a “pattern of criminal gang activity,” by removing looting, felony vandalism, and five personal identity fraud crimes from the list.[1]Second, it states that the current charge cannot be deemed one of these predicate offenses. Third, it states that the alleged benefit to the gang must be something more than a reputational benefit. In other words, the criminal activity must be something akin to obtaining a financial gain, an act of retaliation, targeting a perceived or actual gang rival, or the intimidation of a potential witness or informant.  Lastly, the definition of what a constitutes a “criminal street gang” is modified, requiring not only that it’s an “organization,” but also that it’s an “organized association.”[2] In determining whether there is an “organized association” the courts will be looking for telltales like the group having as shot-callers, a hierarchy, economic organization initiation processes, specific colors, articles of clothing or a code of conduct.
 
These changes were made in hopes that defendants who live in low-income areas, especially those of color, will no longer be viewed as gang members, simply because of criteria which are, in most cases, out of their control. 

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[1] The list of predicate offenses can be found in penal code section 186.22(e)(1)(A) through (e)(1)(Z).

[2] The definition of a criminal street gang is now: “any ongoing organization, association, an ongoing, organized association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity.”