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Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Neva B. SNYDER, Defendant and Appellant.

Cr. 10863.

Decided: June 29, 1981

Harry D. Roth, Davis, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., and Robert D. Marshall, Deputy Atty. Gen., for plaintiff and respondent.

Neva B. Snyder appeals from her conviction of possession of a concealable firearm by a convicted felon1 (Pen.Code, s 12021).

During trial, the court sustained an objection to a question directed to defendant's knowledge of her prior criminal status. She was asked by her counsel, “Now Mrs. Snyder, have you ever been convicted of what's called a felony?

“A Well, I didn't think I had until this came up.

“Q Why did you not think you had been convicted of a felony?

“MR. O'MARA: Objection, irrelevant.

“THE WITNESS: Well, because we never did

“THE COURT: Wait just a moment. I'll sustain the objection.”

Out of the presence of the jury, defendant's offer of proof revealed that after her marijuana conviction, she had registered to vote several times and on each occasion had replied negatively to the question concerning any prior convictions of a felony. Her explanation for denying the fact her prior conviction was a felony was: “Because because I (have) never been in a jail or a prison and we were told by our attorney at the time that we were pleading guilty that it would not be a felony, it would be a misdemeanor.”

Upon these facts and relying upon People v. Bray (1975) 52 Cal.App.3d 494, 124 Cal.Rptr. 913, defendant asserts the court erred by refusing to allow her to testify to the jury as to her understanding or knowledge about the prior conviction and not submitting to the jury CALJIC instruction Nos. 1.21, 4.35, and She is wrong.

The trial court made a preliminary determination of relevancy in a hearing conducted out of the presence of the jury as required by Evidence Code section 402. Whether evidence is allowed or rejected lies in the sound discretion of the trial court, and its decision will not be reversed on appeal unless there is a manifest abuse of discretion causing a miscarriage of justice. (Cal.Const., art. VI, s 13; Evid.Code, ss 352, 353, 354; People v. Remiro (1979) 89 Cal.App.3d 809, 843, 153 Cal.Rptr. 89.) No such showing has been made here.

Moreover, defendant's reliance on People v. Bray, supra, 52 Cal.App.3d 494, 124 Cal.Rptr. 913, is misplaced as that case is factually inapposite. In Bray, defendant had been convicted in Kansas as an accessory after the fact and placed on summary probation. After completing his probation, he became a resident of California. While here, he registered to vote and on the registration form stated that he had been convicted of a felony but submitted an accompanying explanatory statement. He was subsequently permitted to vote by the registrar. He also registered to work as a security guard and again submitted a statement regarding his criminal background. The California Bureau of Collection and Investigative Services registered him as a guard or patrolman.

He made several other applications requiring disclosure of his criminal background, including an application for the purchase of a gun; in that one he responded that he was not a felon nor had he been convicted of a crime requiring incarceration for more than a year. On one application he placed a question mark in the appropriate space concerning his criminal status.

His conduct clearly indicated his misunderstanding of his status in California with reference to his Kansas conviction. His confusion was shared by various California officials, including the voting registrar, Bureau of Collections, and his California prosecutor. (See People v. Bray, supra, 52 Cal.App.3d at pp. 498-499, 124 Cal.Rptr. 913.)

“The facts here (Bray) were unusual, defendant had been led to believe by state regulatory agencies that he was not a felon, and throughout the trial defendant laid the proper foundation for the requested instructions.” (Witkin, Cal.Crimes (1978 Supp. to vol. 1) s 154A.) The court in Bray obviously felt that circumstances, although hybrid in nature, more closely constituted a mistake of fact than a mistake of law.

The only similarity between Bray and this proceeding lies in the fact each defendant attempted to or did register to vote after being convicted of a felony. At that point the paths of similarity divaricate. Defendant Snyder merely stated that she had not been convicted of a felony and did not attempt to explain to the authorities the nature of her criminal background. Bray is simply not applicable.

In this instance the defendant asserts the mistake of law, her status as a felon, rather than a mistake of fact, or a convoluted hybrid as in Bray, supra, as a defense. A mistake of law is not recognized as a defense to the charged crime. (See People v. Autterson (1968) 261 Cal.App.2d 627, 631, 68 Cal.Rptr. 113; Brown v. State Department of Health (1978) 86 Cal.App.3d 548, 554, 150 Cal.Rptr. 344.)

In the Bray decision the court characterized the underlying circumstances as “very unusual ” and concluded the opinion by stating: “This decision should not be interpreted to mean instructions on mistake or ignorance of fact and knowledge of the facts are required every time a defendant claims he did not know he was a felon. Here Bray had been convicted in Kansas of what for California is an unusual crime, ‘accessory after the fact’ and even the prosecutor claimed difficulty in knowing whether it was a felony. In addition, Bray on more than one occasion had been led to believe by state regulatory agencies he was not a felon; he was allowed to vote, he was registered in an occupation allowing him to carry a gun, and he was allowed to buy and register the gun. Throughout the trial, Bray laid the proper foundation for the instructions and he requested them. It is only in very unusual circumstances such as these that the giving of these instructions is necessary.” (Emphasis ours.)

Here the record fails to show similar factual ignorance or confusion with regard to the circumstances surrounding the prior conviction. Bray is clearly distinguishable. (See People v. Howard (1976) 63 Cal.App.3d 249, 257, 133 Cal.Rptr. 689.)

The judgment is affirmed.

I concur.

This case presents in stark simplicity the issue whether misconception of her status as a convicted felon by a defendant charged with violation of Penal Code section 12021 is a mistake of fact or a mistake of law. Generally, the former is a defense, the latter is not. (1 Witkin, Cal. Crimes (1963) Defenses, ss 148-154, pp. 141-149.)

Defendant admitted knowledge of her prior conviction in 1973 for possession of marijuana for sale (former Health & Saf. Code, s 11531). The trial court then rejected her offer to prove that she pled guilty to the marijuana charge on the assurance of her attorney that it was a misdemeanor and that she was thereafter placed on straight probation.

Sale of marijuana is a felony notwithstanding that probation is granted (former Health & Saf. Code, s 11531; Stats. 1970, ch. 1098, p. 1950; Pen. Code, s 17, subd. (a)). Does defendant's erroneous belief that the conviction is for a misdemeanor amount to mistake of fact or of law? A defendant's conviction of a particular offense, the time and place and the underlying circumstances thereof are matters of fact. The legal consequences of such a conviction constitute a question of law. Here defendant was under no misapprehension concerning the fact of her conviction; rather she claimed she misapprehended its legal consequences. However, the fact that it was her lawyer who was the source of her mistaken belief does not relieve her of responsibility for her later conduct. (1 Witkin, Cal. Crimes, supra, s 150, pp. 143-144.)

People v. Bray (1975) 52 Cal.App.3d 494, 124 Cal.Rptr. 913 is distinguishable. There encouragement by the state of defendant's mistaken belief as to his status, plus official condonation of defendant's acquisition of a firearm, created a situation not unlike estoppel, even bordering on entrapment. No circumstances even remotely similar exist here. In any event, to the extent Bray may be read to indicate that defendant's mistake was one of fact, not law, it constitutes an unfortunate mischaracterization and should not be followed.

The ultimate issue here is accountability for one's conduct. We live in a free society in which the dignity and autonomy of the individual are celebrated. Such freedom necessarily carries a price. The quid pro quo is individual acceptance of responsibility for intentional conduct notwithstanding one's actual ignorance of its legal significance; the actor is presumed to know the law, proceeding contrarily at his peril. The seeming harshness of the rule is mitigated by the availability to the diligent of means accurately to determine the requirements of the law. Defendant intentionally possessed concealable firearms knowing she had been convicted of possession of marijuana for sale. The risks of such conduct properly fall upon her.


1.  In 1973, she and her husband Ellis were convicted of possession of marijuana for sale (Health & Saf. Code, s 11531 now s 11360), a felony.

2.  CALJIC No. 1.21: “ ‘KNOWINGLY’ DEFINED“The word ‘knowingly’, as used in my instructions, imports only a knowledge of the existence of the facts in question, when those facts are such as bring the act or omission within the provision of the law. The word does not require in its meaning any knowledge of the unlawfulness of such act or omission.”CALJIC No. 4.35: “IGNORANCE OR MISTAKE OF FACT“An act committed or an omission made under an ignorance or mistake of fact which disproves any criminal intent is not a crime. (P) 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.”CALJIC No. 3.31.5:“In violation of the crime charged in Section 12021 of the Penal Code the information namely, the possession of a concealed weapon by an ex-felon, there must exist a union or joint operation of act or conduct and a certain mental state in the mind of the perpetrator and unless such mental state exists the crime to which it relates is not committed. (P) In the crime of 12021 of the Penal Code, the necessary mental state is knowledge on the part of the Defendant that he has been previously convicted of a felony offense.”The instructions, if given, would have required the jury to find defendant knew she was a felon. Her knowledge of possession of the concealed firearms was conceded.

EVANS, Associate Justice.

YOUNG, J.*, concurs.