P. v. Hunt

Filed 5/31/06 P. v. Hunt CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Susanne S. Shaw, Judge. Reversed.

Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Raquel M. Gonzalez and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Myklor Falene Hunt of possession of methamphetamine and unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a); all further statutory references are to this code unless otherwise indicated), but acquitted her of residential burglary. Defendant contends the trial court erroneously excluded evidence she claims would support a mistake of fact defense, i.e., an actual, honest belief she had the owner's permission to drive a new 2004 Nissan Maxima. She also argues the trial court erred by failing to instruct the jury sua sponte on the doctrine of mistake of fact and, finally, that she received ineffective assistance of counsel because her attorney failed to request a mistake of fact jury instruction. As we explain below, reversal is required because the trial court's misunderstanding of the mistake of fact defense resulted in the exclusion of virtually all of defendant's evidence. Had her mistake of fact evidence not been excluded, she would have been entitled to have the trial court instruct the jury sua sponte on mistake of fact.

I

FACTUAL AND PROCEDURAL BACKGROUND

Defendant admitted taking the keys to the Maxima from Katherine Rich's Newport Beach condominium on June 22, 2004. She drove the car to a restaurant where her daughter worked. Defendant claimed she had Rich's tacit permission to drive the car based on her close relationship with Rich and her frequent use of other vehicles owned by Rich. At trial, Rich testified defendant was a mere acquaintance and she never gave defendant permission, express or implied, to drive the Maxima.

In contrast, defendant testified her relationship with Rich was more involved than Rich admitted. According to defendant, they had known each other for years, she often cared for Rich's husband who suffered from Parkinson's and Alzheimer's, and moreover, she supplied Rich with cocaine and methamphetamine. Defendant also claimed that, before she took the Maxima, she and Rich spent the previous two nights together, sharing drugs. And early on June 22d, defendant had a friend drop her and defendant's son off at Rich's home so defendant could deliver some methamphetamine to her. As defendant went to open Rich's home with a key Rich provided, Rich's husband opened the door and let defendant inside. Defendant did not feel comfortable leaving the drugs for Rich. She knew the keys to the Maxima were in the kitchen and, taking them, she told Rich's husband she would return later.

Arriving back at her home around 8:00 a.m. after walking her dog, Rich noticed her Nissan was missing. She called the police after learning from her husband that defendant had visited. The police located the car at the restaurant, and defendant's daughter gave them the keys.

Investigators interviewed defendant. Officer Kent Eischen of the Newport Beach Police Department testified defendant admitted she did not have permission to drive the Maxima and that â€