APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller, Judge. (Super.Ct.No. FWV1002699)
The opinion of the court was delivered by: King J.
CERTIFIED FOR PUBLICATION
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).)*fn1 The trial court found that defendant had four prior convictions for theft or burglary and served time for the offenses, making his current crime petty theft with prior convictions. (§ 666.)*fn2
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 that the jury could have reasonably inferred that 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 that the jury could have reasonably inferred that he did not intend to steal it when he walked out of the store with it.
We agree that 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, par. Three.) 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) 61 Cal.2d 529, 535-536; People v. Goodman (1970) 8 Cal.App.3d 705, 709.) Defendant's act of forgetting about the hoodie did not amount to a mistaken belief in a set of circumstances which, if true, would have made his act of walking out of the store with it lawful.
We further conclude that, even if there had been sufficient evidence to support an instruction on the defense of mistake of fact, the trial court did not have a duty to instruct on the defense sua sponte, or on any other defense that served only to negate the intent element of the charged crime, including defendant's true defense that he simply forgot about the hoodie. (People v. Anderson (2011) 51 Cal.4th 989, 996-999 [no duty to instruct sua sponte on defense of accident because the defense merely negates an element of the charged crime]; People v. Saille (1991) 54 Cal.3d 1103, 1117.) We therefore affirm the judgment.
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 sweater with a 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 ...