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Domestic Violence: Mistake of fact or Mistake of Law

At the Orange Law of David P Schwarz we have practiced many years of defending and prosecuting domestic violence cases. Please contact our office at 949 735 9266 or via the web. We can also be reached by email at dpslaw66@gmail.com.

As a domestic violence lawyer we will explain The legal significance of a defendant's mistake about a matter of law may vary depending on what law is mistaken. Generally, there are three types of laws that may be mistaken:

Mistake regarding some matter of law, usually of the civil law, that is relevant because the criminal prohibition incorporates a legal element into its definition. Larceny or theft requires the appropriation of property of another, knowing that it belongs to another.

Mistake regarding the existence or meaning of the criminal prohibition itself.

Mistake regarding the law that justifies what would otherwise be a criminal act, for example, execution of a public duty.

As a domestic violence attorney we will educate you that as a general rule, if the crime requires specific intent, mistake of law may negate that intent. Thus, in the first situation, when there exists a good faith dispute over the ownership or right to possession of a particular property, the taking may not constitute an act made with the requisite intent to steal.

At the Orange County Law Office of David P Schwarz we will explain to you there are requirements that have to be met for the mistake of law defense. However, the mistake of law defense may be meritorious only when that mistake can negate the existence of the mental state that is required as an essential element of the offense. In short, the law recognizes honest purpose, not dishonest ignorance of the law, as a defense to a charge of committing a crime requiring “specific intent.”

A domestic violence lawyer will explain that with respect to the latter two categories, the defense of reliance on an attorney's advice, a government official, or a particular interpretation of a statute, has been addressed by California courts. In general, this defense of mistake of law has been held to apply when the mistake was “reasonable,” or the act of the defendant does not necessarily provide notice of the act's illegal character.

In a seminal California case describing the differences between the mistake of fact and mistake of law defenses, People v. Flanagan, the court held that:

If a defendant had known that the organization which he was accused of joining advocated violence, and had he believed that this violence was legal, his defense would have been ignorance of the law and would not have justified an acquittal.

Mistaken belief that the organization had no such purpose constituted a mistake of fact, rather than one of law, and could be used as a defense.

Other California cases emphasize the necessary distinction between knowledge of an activity and believing erroneously that the activity is legal, from not having knowledge of the acts themselves.

CALJIC No. 4.36 states:

When the evidence shows that a person voluntarily did that which the law declares to be a crime, it is no defense that he [she] did not know that the act was unlawful or that he [she] believed it to be lawful.

The Comment to CALJIC No. 4.36 notes that this instruction would be inappropriate if the crime requires a specific intent or other mental state because a mistake of law may negate the existence of specific intent.

At the Orange County Law Office of David P Schwarz we are prepared to fight for our clients rights regarding domestic violence cases. Please contact our office at 949 735 9266 or via the web. We can also be reached by email at dpslaw66@gmail.com.

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