Supreme Court of California Justia
Docket No. S265668
People v. Hendrix

Plaintiff and Respondent,
Defendant and Appellant.
Second Appellate District, Division Six
Ventura County Superior Court
2017025915, 2018037331
August 22, 2022
Justice Kruger authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Groban, Jenkins, and Guerrero concurred.

Opinion of the Court by Kruger, J.
Early one October morning, defendant Isaiah Hendrix
walked up to a house in Oxnard, knocked on the door, and rang
the doorbell. Hearing no response, Hendrix walked around the
house to the backyard, opened a screen door, and attempted to
open the locked glass door behind it. Then, failing that, Hendrix
sat down on a bench and stayed there. Hendrix was sitting on
the bench when police arrived. Hendrix told police he was there
to visit his cousin, but Hendrix’s cousin did not, in fact, live in
the house. Hendrix was charged with burglary.
At trial, the court gave the jury a standard mistake of fact
instruction, which informed jurors that they should not convict
Hendrix if they determined he lacked criminal intent because he
mistakenly believed a relevant fact — namely, that the house
belonged to his cousin and not to a stranger. But the instruction
specified that the mistake in question had to be a reasonable
one. All parties now acknowledge this was error: To negate the
specific criminal intent required for burglary, a defendant’s
mistaken belief need not be reasonable, just genuinely held. The
question before us is whether the instructional error was
prejudicial and thus requires reversal. The Court of Appeal,
concluding Hendrix’s claim of mistake was not credible in any
event, answered no. We reach a different conclusion. The
instructional error effectively precluded the jury from giving full
consideration to a mistake of fact claim that was supported by
substantial evidence, where resolution of the issue was central
Opinion of the Court by Kruger, J.
to the question whether Hendrix possessed the criminal intent
necessary for conviction. Whether that claim is credible is a
matter for a jury to decide. We reverse the judgment of the
Court of Appeal and remand for further proceedings.
The case before the jury turned on a single question: what
was Isaiah Hendrix doing at the house in Oxnard?
Surveillance video captured Hendrix there around 7:00
a.m. The video showed Hendrix pacing back and forth in front
of the house, then walking up to the front door, where he
knocked and pressed the video doorbell. He then walked around
the house and opened a side gate into the yard. He pushed open
the backyard screen door, then attempted to open the glass
sliding door behind it.
Artrose Tuano, who lived in the house, was home at the
time. Tuano testified that he had never seen Hendrix before;
that the screen door into the house was locked; and that he
called the police when Hendrix tried to “jimmy” it open. When
police arrived, they found Hendrix sitting on a bench in the
backyard. Officer Christian Aldrete of the Oxnard Police
Department testified that when he confronted Hendrix in the
backyard, Hendrix was sitting calmly and looked “surprised” to
see him. Officer Randi Vines testified that a search of Hendrix
revealed no burglary tools; Hendrix was carrying only a water
Hendrix immediately offered an explanation for his
presence at the Oxnard house: He claimed to be looking for his
cousin Trevor at the house, and asserted that a friend told him
Trevor had moved there. Trevor did not, in fact, live at the
Opinion of the Court by Kruger, J.
address. Officer Vines, who, as a matter of chance, knew cousin
Trevor from high school, testified at trial that Trevor lived
several blocks away. Hendrix was arrested and charged with
first degree burglary. (Pen. Code, §§ 459, 460.)1
At trial, the prosecution introduced evidence to cast doubt
on Hendrix’s explanation for his presence at the Oxnard house.
It played a recording of a call from Ventura County Jail in which
Hendrix asked his mother to come up with somebody who could
testify they had given him the wrong address. She responded:
“Oh. No. You need to do — one of your friends [to] do that crap.
I ain’t getting nobody caught up or doing any type of drama or
lying.” The conversation moved on from there. On another
recorded call, Hendrix’s uncle stated that Hendrix had been
doing some “crazy shit,” including “breaking in people’s houses,”
and asked “what were you doing?” Hendrix responded by
muttering “I don’t know,” then laughing and chiding his uncle
for “talking smack.” Nicole Rodriguez, a supervisor at the
Oxnard Costco, testified that Hendrix had previously stolen
from the store by deploying an excuse that he was looking for a
relative. Hendrix, she explained, had appeared at the Costco
First degree burglary is defined as entry into an inhabited
dwelling with the intent to commit a felony. (Pen. Code, §§ 459,
460.) “ ‘[A] burglary is complete upon the slightest partial entry
of any kind, with the requisite intent.’ ” (People v. Valencia
(2002) 28 Cal.4th 1, 8, disapproved on other grounds by People
v. Yarbrough (2012) 54 Cal.4th 889, 894.) In this case Hendrix
concedes he committed an entry — albeit a very slight one —
when he briefly extended his hand past the open screen door; he
notes that People v. McEntire (2016) 247 Cal.App.4th 484, 491–
493, found the entry requirement satisfied based on a similar
breach of screen-door space. Hendrix’s arguments instead focus
on whether he committed the entry with the requisite criminal
Opinion of the Court by Kruger, J.
without a membership card, claiming to be looking for his
mother. Rodriguez agreed to accompany Hendrix while he
searched for her. But upon arriving at the alcohol section,
Hendrix grabbed a bottle of tequila and left the store without
The defense rested without presenting witnesses or
evidence. In closing, the defense’s central argument to the jury
was that Hendrix had made a crucial mistake of fact about who
lived at the house, which explained why, after knocking on the
front door and trying to open the back door, Hendrix simply sat
down in the backyard and waited for Trevor to arrive. The
prosecution disputed there had been any mistake.
Before it retired to deliberate, the jury was instructed on
the elements of burglary according to CALCRIM No. 1700: “The
defendant is charged with burglary. To prove the defendant is
guilty of this crime, the People must prove that: One, the
defendant entered a structure; and two, when the defendant
entered a structure he intended to commit theft. To decide
whether the defendant intended to commit theft, please refer to
the separate instructions I give you on the crime.”2
To guide the jury’s consideration of the intent element, the
defense requested CALCRIM No. 3406, concerning mistake of
The trial court instructed on theft with CALCRIM
No. 1800 that “[t]o prove the defendant is guilty of this crime,
the People must prove that the defendant was in possession of
property of someone else,” that “[h]e took the property without
the owner’s consent,” and that “he took the property and he
moved the property even a small distance and kept it for any
period of time, however brief.”
Opinion of the Court by Kruger, J.
fact. That instruction provides that the defendant is not guilty
of the charged crime if he lacked the mental state required to
commit the crime because of a mistaken belief or lack of
knowledge. As the bench notes indicate, the instruction can be
given in two ways, depending on whether the crime is one of
general intent — in which case the defendant’s belief must be
both actual and reasonable — or specific intent, in which case
the defendant need hold only an actual but mistaken belief in
the relevant fact. (Judicial Council of Cal., Crim. Jury Instns.
(2021) Bench Notes to CALCRIM No. 3406; see generally, e.g.,
People v. Lawson (2013) 215 Cal.App.4th 108, 115 (Lawson).
Although the prosecutor here did not object to the defense’s
request to give the mistake of fact instruction, he asked that the
court give the version of the instruction applicable to general
intent crimes, which requires proof of an actual and reasonable
mistaken belief. The court agreed to do so. The jury was thus
instructed on mistake of fact as follows:
“The defendant is not guilty of burglary if he did not have
the intent or mental state required to commit the crime because
he reasonably did not know a fact or reasonably and mistakenly
believed a fact. [¶] If the defendant’s conduct would have been
lawful under the facts as he reasonably believed them to be, he
did not commit burglary. [¶] If you find the defendant believed
that the defendant’s cousin Trevor resided at the home and if
you find that belief was reasonable
, the defendant did not have
a specific intent or mental state required for burglary. [¶] If
you have a reasonable doubt about whether the defendant had
the specific intent or mental state required for burglary, you
must find him not guilty of that crime.” (Italics added.
Opinion of the Court by Kruger, J.
As the parties now agree, the inclusion of the italicized
language was error.3 Burglary is a specific intent crime. (People
v. Thompson
(1980) 27 Cal.3d 303, 313.) It requires not only
that a defendant enter a structure, but that he do so with a
particular objective in mind: larceny (or any other felony). (Pen.
Code, § 459; People v. Wallace (2008) 44 Cal.4th 1032, 1077; see
People v. Hood (1969) 1 Cal.3d 444, 457 [specific intent refers to
“defendant’s intent to do some further act or achieve some
additional consequence” besides commission of a proscribed
act].) As the criminal jury instructions themselves make clear,
an unreasonable but honest mistaken belief in a fact can negate
the required showing of intent. (Judicial Council of Cal., Crim.
Jury Instns., supra, Bench Notes to CALCRIM No. 3406.
Following a series of otherwise unremarkable
instructions, the case went to the jury. It found Hendrix guilty
of first degree burglary and the court sentenced him to a term of
10 years.
On appeal, the People conceded the mistake of fact
instruction was erroneous but argued the error was harmless.
A divided Court of Appeal agreed. Applying the harmless error
standard for state law error set out in People v. Watson (1956
46 Cal.2d 818 (Watson), the majority concluded there was “no
reasonable probability [Hendrix] would have obtained a more
favorable result” in the absence of the instructional error.
(People v. Hendrix (2020) 55 Cal.App.5th 1092, 1097 (Hendrix).
The defense did not object to the prosecutor’s request to
use the general-intent version of the instruction. The Attorney
General does not, however, dispute that Hendrix’s challenge to
the instruction is cognizable on appeal. (See, e.g., People v.
Hudson (2006) 38 Cal.4th 1002, 1011–1012 (Hudson).
Opinion of the Court by Kruger, J.
The court took the view that Hendrix’s purported belief that he
was at Trevor’s house was a “fabrication” that “did not make
sense to the jury” and “does not cohere on appeal either.” (Id. at
pp. 1098, 1097.
In dissent, Justice Tangeman viewed the erroneous
mistake of fact instruction as tantamount to “misinstruction on
an element of the offense.” (Hendrix, supra, 55 Cal.App.5th at
p. 1100 (dis. opn. of Tangeman, J.).) Justice Tangeman would
consequently have applied a more demanding standard of
harmless error review — the federal “beyond a reasonable
doubt” standard set out in Chapman v. California (1967) 386
U.S. 18, applicable to errors under the federal Constitution.
Applying that standard, Justice Tangeman would have
We granted review, limited to two questions: (1) What
standard of prejudice applies to the trial court’s error in
instructing on mistake of fact, and (2) whether the Court of
Appeal erred in holding the error harmless.
The type of mistake of fact claim Hendrix raised in this
case is often described as a “defense” to the charge. (See, e.g.,
People v. Hanna (2013) 218 Cal.App.4th 455, 462.) But the term
is somewhat misleading, because mistake of fact is, generally
speaking, “not a true affirmative defense.” (Lawson, supra, 215
Cal.App.4th at p. 118.)4 It is, rather, an assertion by the
There is a recognized exception for certain public welfare
offenses where the prosecution is not required to prove
knowledge or intent of a particular fact, such as the age of a
would-be purchaser of alcohol, but where we nonetheless allow
Opinion of the Court by Kruger, J.
defendant that a particular factual error in his perception of the
world led him to lack the mens rea required for the crime. (See
Pen. Code, § 26, paragraph [3] [persons are not capable of
committing crimes if they “committed the act . . . under an
ignorance or mistake of fact, which disproves any criminal
intent”]; Lawson, at p. 111 [“The mistake-of-fact defense
operates to negate the requisite criminal intent or mens rea
element of the crime”]; People v. Anderson (2011) 51 Cal.4th 989,
996–998 [same conclusion with respect to similar “defense” of
accident]; see also, e.g., State v. Sexton (N.J. 1999) 733 A.2d
1125, 1128–1130 [discussing the relationship between mistake
of fact and mens rea].
Say a defendant is charged for theft of a box of oranges.
(People v. Photo (1941) 45 Cal.App.2d 345, 346.) He claims he
mistakenly thought the oranges were his. If the defendant
indeed believed the oranges were his, it is necessarily true that
he did not intend to steal them from someone else. His mistake
of fact claim, then, is simply one particular way of saying he
lacked the mens rea required for theft. (Id. at p. 353.) In this
way mistake of fact operates as a kind of failure-of-proof defense,
reflecting a defendant’s attempt to suggest the prosecution
failed in its burden to establish beyond a reasonable doubt that
the defendant acted with the criminal intent required for the
offense. (1 Wharton’s Criminal Law (16th ed. 2021) Mistake of
Fact, § 13.2, pp. 384–387.) “ ‘If the defendant’s ignorance or
mistake makes proof of a required culpability element
impossible, the prosecution will necessarily fail in its proof of the
offense.’ ” (State v. Sexton, supra, 733 A.2d at pp. 1128–1129,
the defendant to raise mistake as an affirmative defense. (See
In re Jennings (2004) 34 Cal.4th 254, 280–281.
Opinion of the Court by Kruger, J.
quoting Robinson & Grall, Element Analysis in Defining
Criminal Liability: The Model Penal Code and Beyond
35 Stan. L.Rev. 681, 726–727.
In this case, Hendrix’s mistake of fact claim was raised in
connection with the question whether he intended to commit
theft once inside the Oxnard house. Whether the jury credited
the claim would determine whether he possessed the requisite
criminal intent: that is, whether he was innocently intending to
look for his cousin Trevor or culpably intending to carry out a
burglary.5 The prosecutor’s theory of Hendrix’s intent was
captured in the positive phrasing of the substantive mens rea
instruction: Hendrix intended to burglarize the home.
Hendrix’s theory of intent was captured in the negative
phrasing of the mistake of fact instruction: He intended to visit
Trevor, not carry out a burglary. Because they ultimately help
the jury answer the same question — Hendrix’s state of mind at
the time he entered the home — the two instructions should
have been aligned: The jury was instructed, if not in so many
words, that burglary is a specific intent crime, so it should have
received a specific intent mistake of fact instruction that
There is one explanation of Hendrix’s actions that would
break this mirror-image connection between mistake of fact and
mens rea: if Hendrix indeed believed that the house was
Trevor’s, but intended to burglarize his own cousin’s house. The
People argue that, by not acknowledging this possibility, the
mistake of fact instruction was misleading in a way that actually
favored Hendrix, rather than the People. As a theoretical
matter, the People might have a point. But the theoretical
possibility that Hendrix intended to burglarize his cousin Trevor
was raised and rejected at trial: The parties briefly wrangled
over the burglarizing-Trevor’s-house theory while crafting the
jury instructions, but the judge dismissed the idea as “a little bit
far fetched” and that theory was never presented to the jury.
Opinion of the Court by Kruger, J.
recognized the possibility that a genuine, if unreasonable, belief
would negate a finding of criminal intent. (People v. Givan
(2015) 233 Cal.App.4th 335, 350; Lawson, supra, 215
Cal.App.4th at p. 115.) The jury instead received a more limited
mistake of fact instruction geared toward general intent crimes,
generating the problem in this case.
It is undisputed that the trial court’s instruction on
mistake of fact was erroneous. But not every error at trial
requires reversal; the law requires us to affirm a jury verdict
despite instructional error if the error was harmless. Indeed, in
California, harmless-error review is a matter of constitutional
mandate: “The California Constitution imposes upon this court
an obligation to conduct ‘an examination of the entire cause’ and
reverse a judgment below for error only upon determining that
a ‘miscarriage of justice’ has occurred.” (People v. Sivongxxay
(2017) 3 Cal.5th 151, 178, quoting Cal. Const., art. VI, § 13.) As
the high court has explained, the harmless-error doctrine
“recognizes the principle that the central purpose of a criminal
trial is to decide the factual question of the defendant’s guilt or
innocence, [citation], and promotes public respect for the
criminal process by focusing on the underlying fairness of the
trial rather than on the virtually inevitable presence of
immaterial error.” (Delaware v. Van Arsdall (1986) 475 U.S.
673, 681, citing R. Traynor, The Riddle of Harmless Error (1970
p. 50.
The central question before us is whether the instructional
error at issue was prejudicial and thus requires reversal of the
resulting conviction. We conclude it was.
Opinion of the Court by Kruger, J.
At the outset, we address the threshold question of the
standard for evaluating prejudice. The “generally applicable
California test for harmless error” is set forth in Watson, supra,
46 Cal.2d 818. (People v. Breverman (1998) 19 Cal.4th 142, 176.
Under the Watson test, we deem an error harmless unless it is
“reasonably probable” the outcome would have been different in
the absence of the error. (Watson, at p. 836.) As a general
matter, this test applies to “ ‘ “incorrect, ambiguous, conflicting,
or wrongly omitted instructions that do not amount to federal
constitutional error.” ’ ” (People v. Beltran (2013) 56 Cal.4th
935, 955.
“In contrast, we evaluate the harmlessness of violations of
the federal Constitution under the standard set forth in
Chapman v. California[, supra,] 386 U.S. 18.” (People v.
, supra, 5 Cal.5th at p. 195.) This “stricter” standard of
review requires reversal unless the error is “harmless beyond a
reasonable doubt.” (People v. Dominguez (2006) 39 Cal.4th
1141, 1160.) Among the constitutional errors subject to
Chapman review is misinstruction of the jury on one or more
elements of the offense. (People v. Wilkins (2013) 56 Cal.4th 333,
351 (Wilkins); Hudson, supra, 38 Cal.4th at p. 1013.) This is
because the federal Constitution requires “criminal convictions
to rest upon a jury determination that the defendant is guilty of
every element of the crime with which he is charged, beyond a
reasonable doubt.” (United States v. Gaudin (1995) 515 U.S.
506, 510; accord, Victor v. Nebraska (1994) 511 U.S. 1, 5;
Sullivan v. Louisiana (1993) 508 U.S. 275, 277–278.) A jury
misinstruction that relieves the prosecution of its burden to
prove an element of the crime — by either misdescribing the
element or omitting it entirely — violates this requirement.
Opinion of the Court by Kruger, J.
(See Neder v. United States (1999) 527 U.S. 1, 10 [“In both
cases — misdescriptions and omissions — the erroneous
instruction precludes the jury from making a finding on the
actual element of the offense”].
Here, the Attorney General defends the Court of Appeal’s
decision to apply the ordinary Watson test for state law error.
Hendrix, by contrast, urges us to adopt the view of Justice
Tangeman’s dissent below: that the trial court’s misinstruction
on mistake of fact was tantamount to a misinstruction on the
mental, or mens rea, element of the offense, requiring the
application of Chapman review. (Hendrix, supra, 55
Cal.App.5th at p. 1100 (dis. opn. of Tangeman, J.).
We recently considered a similar issue in People v. Molano
(2019) 7 Cal.5th 620, 670, in which we addressed a criminal
defendant’s claim that a trial judge erroneously failed to modify
a reasonable-mistake-of-fact instruction on rape in a manner
that would have informed the jury that an unreasonable belief
in the victim’s consent, if genuinely held, would also negate the
specific intent to commit rape. After first finding the claim of
error forfeited, and only assuming without deciding the validity
of the theory, we concluded any error in failing to instruct on an
unreasonable-mistake defense was harmless. We treated the
error as one of state law, citing Court of Appeal precedent for
the proposition that “ ‘[e]rror in failing to instruct on the
mistake-of-fact defense is subject to the harmless error test set
forth in People v. Watson.’ ” (Molano, at p. 670.
Molano cited several Court of Appeal cases, including
People v. Givan, supra, 233 Cal.App.4th 335, which involved a
mistake of fact claim based on the defendant’s voluntary
intoxication (id. at pp. 339, 347–349). Voluntary intoxication,
Opinion of the Court by Kruger, J.
like mistake of fact, is an issue that “bears on the question of
whether the defendant actually had the requisite specific
mental state.” (People v. Saille (1991) 54 Cal.3d 1103, 1119.
We have reviewed instructional errors regarding a defense of
voluntary intoxication under Watson. (See People v. Pearson
(2012) 53 Cal.4th 306, 325; People v. Jackson (1989) 49 Cal.3d
1170, 1195.
Hendrix contends that, in order to prove he harbored the
requisite criminal intent to steal, the prosecution in his case was
required to prove beyond a reasonable doubt that he did not
make a mistake about Trevor’s residence. (See People v.
(1975) 15 Cal.3d 143, 157; People v. Frye (1992) 7
Cal.App.4th 1148, 1159; People v. Bolden (1990) 217 Cal.App.3d
1591, 1600–1601; People v. Howard (1996) 47 Cal.App.4th 1526,
1533, disapproved on another ground by People v. Fuhrman
(1997) 16 Cal.4th 930, 947, fn. 11.) The error here, in Hendrix’s
view, lessened the prosecution’s burden of proof on that point.
Hendrix compares the result to the error in the escape rule
instruction at issue in Wilkins, supra, 56 Cal.4th 333, to which
we applied Chapman, not Watson, on review. In that case, the
defendant stole a set of kitchen appliances from a home and fled
down the 91 freeway in a pickup truck. (Id. at p. 338.) Some 62
miles later, a stove fell off the back of the truck and killed
another motorist. (Id. at pp. 338–339.) Wilkins was convicted
of felony murder on the theory that the death of the motorist
occurred during the commission of a burglary. (Id. at p. 340.
But the trial court erroneously declined to give an instruction on
the “escape rule” — the rule that “ ‘[t]he crime of burglary
continues until the perpetrator has actually reached a
temporary place of safety.’ ” (Id. at p. 341.) The People argued
Watson applied on review for harmless error (id. at p. 348), but
Opinion of the Court by Kruger, J.
we disagreed and instead evaluated the error under Chapman,
concluding the error “amounted to misinstruction on an element
of the offense.” (Id. at p. 350.) Hendrix argues the same result
ought to obtain here, notwithstanding Molano.
The Attorney General disputes Hendrix’s characterization
of the error, as well as the analogy to the escape rule at issue in
Wilkins. Ultimately, however, we need not resolve this dispute
about the proper characterization of the error for purposes of
applying Chapman or Watson, because the erroneous mistake of
fact instruction was prejudicial even under the less stringent
standard set out in Watson.
Under Watson, a reviewing court must reverse if “it is
reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the
error.” (Watson, supra, 46 Cal.2d at p. 836.) “ ‘ “We have made
clear that a ‘probability’ in this context does not mean more
likely than not, but merely a reasonable chance, more than an
abstract possibility.” ’ ” (Richardson v. Superior Court (2008) 43
Cal.4th 1040, 1050, italics omitted.
The mistake of fact instruction at Hendrix’s trial told the
jury that Hendrix lacked the requisite mens rea if his mistaken
belief that he was visiting Trevor’s house was reasonable —
implying, of course, the same was not true if his belief was
unreasonable. But Hendrix’s mistake did not need to be
reasonable; it was enough if it was genuinely held. At least as
the case was presented to the jury, if Hendrix believed he was
visiting Trevor’s house, then Hendrix necessarily lacked the
mens rea for the crime. The misinstruction at Hendrix’s trial
effectively operated to impose an unwarranted reasonableness
Opinion of the Court by Kruger, J.
requirement on Hendrix’s mistake of fact claim. Nor was that
error cured, as the Attorney General urges, by the presence of a
correct instruction on burglary. Although the mens rea
instruction did correctly tell the jury that the intent to commit
theft was required for a conviction, the mistake of fact
instruction incorrectly implied that an unreasonable mistake
would be insufficient to negate that intent. (See People v. Speck
(2022) 74 Cal.App.5th 784, 793 [failure to give mistake of fact
instruction was not cured by correct instruction on mens rea
element of the crime where “intent was the primary issue in
dispute”]; see id. at pp. 790–795.
The potential effect of the error was considerable in this
case, where Hendrix’s mistake of fact claim was the central
disputed issue at trial. Competing assessments of Hendrix’s
mental state occupied the vast majority of closing argument.
The prosecutor admitted that the mens rea element was where
“the most dispute is going to be in this case,” since “there was a
significant amount of evidence directed towards this element
during the trial.” After arguing that the jury should interpret
Hendrix’s actions on the surveillance video as an attempt to
burgle Tuano’s home, the prosecutor emphasized facts casting
doubt on Hendrix’s alternative explanation for his arrival at the
house. According to the prosecutor, Hendrix could not possibly
have believed Trevor lived at the house. “The cousin’s house is
in the same general area, a few blocks away, but it’s not in a
similar relationship to any of the nearby landmarks. It’s on the
other side of Gonzales Road. It’s on the other side of a high
school.” There was “no evidence that Trevor lives there,” even
though “that’s the story that the defendant supplied.” “He’s not
in the right neighborhood, he’s not on the right side of Gonzales
Road. There’s no evidence of another explanation other than a
Opinion of the Court by Kruger, J.
theft that fits all the evidence in this case.” Rather, “common
sense says when someone is trying to get into a house that they
think is empty that they have no connection to, that they don’t
have any reason to be there, then the rational common sense
explanation, the thing that everyone knows is that it’s to steal.”
Ultimately, the prosecutor told the jury, “you’re presented with
this conflict between the direct evidence of the defendant’s
statement of his intent and all of the circumstantial evidence in
the case. And you have to say, okay, what explains everything?
What fits with everything?” And the answer was simple:
“there’s only one reasonable interpretation of all the evidence in
this case . . . the defendant is guilty of Count 1, residential
burglary.” According to the prosecutor, Hendrix’s alternative
theory — that he had made a mistake of fact and intended to
visit his cousin Trevor — was utterly incredible: there was “not
any credible evidence of an alternative intent” and “we know”
Hendrix’s mistake of fact story was “a pack of lies.”
The defense argued just the opposite: Hendrix “went [to
the house] with the intent to find his cousin, not to break in.”
Defense counsel added: “From the very beginning, when the
officers had their guns drawn he told them, ‘I’m here looking for
Trevor.’ ” Defense counsel emphasized that Hendrix had been
sitting on the backyard bench for seven minutes before officers
arrived. “Is that the act of a burglar or is that the act of someone
waiting and trying to find their cousin?” “[W]hen Mr. Hendrix
is knocking at the door, is it reasonable that he’s looking for his
cousin? Yes. How do we know it’s reasonable? His cousin lives
two blocks away.” And the defense repeatedly emphasized its
reliance on the mistake of fact theory: “If you find that the
defendant believed that his cousin Trevor resided at the home
Opinion of the Court by Kruger, J.
and if you find that belief is reasonable, you must find him not
guilty. You must.”
The jurors’ attention was thus directed to deciding which
narrative was correct: an opportunistic burglary of a stranger,
or a social visit to a house Hendrix believed was Trevor’s. On
this crucial point the erroneous mistake of fact instruction was
highly relevant — and also highly likely to mislead the jury. At
least one juror could easily have considered Hendrix’s purported
belief unreasonable — for example, because the Tuano home (as
the prosecutor emphasized) was not sufficiently close to Trevor’s
actual address — and applied the erroneous reasonableness
requirement to rule out Hendrix’s mistake-of-fact theory from
Certainly, as the Court of Appeal emphasized, the
evidence supporting Hendrix’s mistake of fact defense was not
overwhelming. (Hendrix, supra, 55 Cal.App.5th at p. 1097.
And there was evidence pointing in the other direction. The
prosecution introduced evidence suggesting that Hendrix did
not in fact believe that Trevor lived at the house, including
evidence that Hendrix had previously told a similar family-
related story when stealing from the Oxnard Costco; that he
failed to deny his uncle’s statement over the telephone that he
had been “breaking in people’s houses”; and that his recorded
conversation with his mother, in which he asked her to find
“somebody” who could be a witness for him at trial and did not
respond to her statement that this task could involve her in
“drama or lying,” indicated that, at a minimum, Hendrix did not
recall who had told him Trevor lived at the house — and perhaps
that no one had done so, and Hendrix may have been trying to
procure someone to lie on his behalf. The prosecution relied
extensively on this evidence at closing argument to rebut
Opinion of the Court by Kruger, J.
Hendrix’s contention that he was mistaken about who lived in
the house and intended not to steal, but to visit his cousin.
Ultimately, however, the question is not whether the
jurors could have concluded that Hendrix was intentionally
lying — certainly they could — but instead whether the nature
of the evidence leaves us “ ‘in serious doubt as to whether the
error affected the result.’ ” (People v. Mower (2002) 28 Cal.4th
457, 484.) And there are reasons for serious doubt in this case,
including evidence of conduct difficult to explain as part of an
intended burglary: Why, if Hendrix was attempting to break
into a stranger’s home, did he choose to remain seated in the
backyard, where police found him several minutes later? And
why, if his intent was to commit burglary, did he have no
burglary tools? A jury could reasonably understand the security
footage of Hendrix’s meandering approach to the house as casing
the home in preparation for burglary — but a jury could also see
the footage as capturing a bumbling and disjointed attempt to
locate Trevor, capped by a frustrated decision to sit down on the
backyard bench and wait.
Although the main issue at trial was whether Hendrix
genuinely believed that Trevor lived at the house — and not
specifically whether Hendrix’s belief was reasonable — a juror
viewing all the evidence would naturally have considered the
possibility that Hendrix was neither intentionally lying nor
harboring a reasonable belief, but was instead unreasonably
(though honestly) mistaken about where his cousin really lived.
Indeed, defense counsel expressly noted the possibility of
confusion at closing argument: “[W]hat the D.A. wants you to
do is believe that every single act that someone makes always
can lead to a logical explanation. And people don’t always do
things that make sense. Sometimes people are on drugs.
Opinion of the Court by Kruger, J.
Sometimes people are not on their drugs. And sometimes the
things people do don’t make sense.” A jury considering the
evidence in this case would have had considerable reason to
believe that Hendrix’s actions fell into that last category.
Given the evidence before the jury, there is “ ‘ “more than
an abstract possibility” ’ ” (Richardson v. Superior Court, supra,
43 Cal.4th at p. 1050, italics omitted) that at least one juror
thought Hendrix genuinely believed the house belonged to a
relative and that this juror or jurors were influenced by the
erroneous mistake of fact instruction to discount that belief as
unreasonable under the circumstances.6 As Hendrix points out,
the circumstances surrounding the deliberations are at least
consistent with this conclusion. It appears the jury did not find
We have not previously decided whether a hung jury, as
opposed to an acquittal, is a “more favorable” (Watson, supra, 46
Cal.2d at p. 836) outcome for purposes of harmless error review
under Watson. (See People v. Soojian (2010) 190 Cal.App.4th
491, 518–521.) But several Court of Appeal cases have
answered that question in the affirmative. (See People v. Doane
(2021) 66 Cal.App.5th 965, 984 [“Here, the question is whether
it is reasonably probable that, absent the errors, at least one
juror would have voted to acquit Doane of gross vehicular
manslaughter”]; People v. Dryden (2021) 60 Cal.App.5th 1007,
1025 [“we consider whether it is reasonably probable that one or
more jurors would conclude that the prosecution failed to meet
its burden of proving beyond a reasonable doubt that defendant
did not act in lawful self-defense if this case were tried without
the erroneous admission of the prior acts evidence”]; People v.
Zaheer (2020) 54 Cal.App.5th 326, 341 [“there is a reasonable
chance that at least one juror relied on the prospect of a different
car to reconcile his or her doubts about the reliability of
Martha’s testimony”]; cf. People v. Winkler (2020) 56
Cal.App.5th 1102, 1171 [finding error harmless because there
was no reasonable probability that “even a hung jury would have
been achieved”].) We do the same today.
Opinion of the Court by Kruger, J.
this to be an open-and-shut case, despite the fact that Hendrix’s
actions at the Oxnard house were recorded on video for the jury’s
review. The jury reported a deadlock midway through
deliberations and requested a transcript or readback of
Hendrix’s jailhouse phone calls, suggesting a particular concern
with what those calls could reveal about Hendrix’s intentions at
the house.
The Attorney General rightly notes that the jurors were
entitled to consider the reasonableness of Hendrix’s purported
belief as one factor in answering the ultimate question in the
case: whether Hendrix intended to steal or actually and in good
faith believed that the house he entered belonged to Trevor. It
is generally true that a person is less likely to hold an
unreasonable belief than a reasonable one, and the jurors were
entitled to consider unreasonableness as a factor in this case.
(See People v. Watt (2014) 229 Cal.App.4th 1215, 1218; People v.
(1979) 99 Cal.App.3d Supp. 1, 11.) The jurors were not,
however, instructed to consider the reasonableness of Hendrix’s
belief merely as proof of its genuineness. They were instead
instructed that Hendrix should not be found guilty if his belief
was both reasonable and genuine — leaving the distinct, and
incorrect, impression that Hendrix’s mistake of fact argument
would have no purchase if his mistake was unreasonable.
In concluding otherwise, the Court of Appeal appeared to
ask the wrong question, and for that reason arrived at the wrong
answer. Watson instructs a reviewing court to ask whether
there is a reasonable probability the jury might have reached a
different result had it been instructed correctly. (Watson, supra,
46 Cal.2d at p. 836.) In other words, Watson asks the court to
imagine what the jury would have done in the counterfactual
world in which it received correct instructions. While the court
Opinion of the Court by Kruger, J.
should undertake that task in light of the “ ‘entire cause,
including the evidence’ ” (ibid.), the reviewing court should focus
solely on whether “the error affected the outcome” (People v.
, supra, 19 Cal.4th at p. 165), not on whether the
court personally believes that outcome was correct. The
distinction is vitally important. An appellate court may, of
course, consider the strength of the evidence against the
defendant in determining whether the absence of a single,
discrete error at trial would have made a difference to the trial’s
overall outcome. (See id. at p. 177 [in conducting harmless error
analysis, “an appellate court may consider, among other things,
whether the evidence supporting the existing judgment is so
relatively strong, and the evidence supporting a different
outcome is so comparatively weak, that there is no reasonable
probability the error of which the defendant complains affected
the result”].) The court may not, however, rest a harmless error
ruling on its own reweighing or reinterpretation of the evidence.
These are questions solely for the jury, and a reviewing court
must, at bottom, ground its analysis in what the “jury is likely
to have done,” not how the court believes the jury should have
analyzed the evidence before it. (Ibid., italics omitted.
In finding the instructional error at Hendrix’s trial
harmless, the Court of Appeal leaned heavily on its own view of
the facts, rather than focusing its analysis on the error’s likely
effect on the jury’s consideration of those facts. The majority
opined that “the story [Hendrix] told the police was a
fabrication.” (Hendrix, supra, 55 Cal.App.5th at p. 1098.) In
reaching that conclusion, the majority stepped into the role of
the jury, weighing competing evidence before coming to its own
conclusions about disputed facts in the case. The majority
correctly recognized, for example, that “[t]here is no evidence of
Opinion of the Court by Kruger, J.
what [Hendrix] was thinking while sitting in the backyard”;
remarked that Hendrix “obviously” has “some mental
impairment” that could have affected his state of mind; and
observed that while sitting in the backyard, Hendrix could have
been either “pondering on the whereabouts of cousin Trevor” or
“pondering on his next attempted point of entry.” (Id. at p. 1098,
fn. 3.) These were all, of course, central questions for the jury —
questions the majority proceeded to answer itself. “[W]e do not
believe,” the majority concluded on this point, “that a friend told
him that cousin Trevor had moved to the victim’s house. It
seems much more likely, consistent with the prosecutor’s theory,
that appellant made up this excuse to avoid arrest.” (Ibid.
The majority also appears to have offered its own
interpretation of the security footage — concluding that
Hendrix’s conduct in approaching the house constituted the
“method of operation for a residential burglar,” opining that the
evidence revealed “multiple forcible attempts to enter the house
and a garage,” and asking: “Would a person who subjectively
believes that a cousin lives at a residence also think that the
cousin would allow forcible entry for a social visit?” (Hendrix,
supra, 55 Cal.App.5th at p. 1098.) The court then “emphasized
that [Hendrix] did not testify that he subjectively believed
cousin Trevor lived at the scene of the burglary.” (Ibid.) (In
point of fact, Hendrix did not testify at all, as was his Fifth
Amendment right.) And the court came to a firm conclusion
about the meaning of Hendrix’s mumbled “I don’t know”
response to his uncle on the jailhouse recording: “This is not the
comment of a person who subjectively believed that cousin
Trevor lived in the house.” (Hendrix, at p. 1098.
The Court of Appeal’s analysis amounted, in sum, to a
determination that Hendrix’s story was false because it was
Opinion of the Court by Kruger, J.
unreasonable, convenient, and because the limited evidence
supporting it was outweighed by other evidence. But the law
recognizes unreasonable mistakes as negating the specific
intent required for burglary; a defendant’s factual claim is not
false merely because it helps his case; and although the proof of
Hendrix’s belief may have been limited, it was nonetheless
sufficiently substantial to raise a genuinely contested issue. The
overall effect of the Court of Appeal’s approach was to substitute
the court’s judgment for that of Hendrix’s jury regarding the
central question in the case: what Hendrix really believed when
he approached the Oxnard house. It may well be that a properly
instructed jury would have agreed with the Court of Appeal’s
assessment of the evidence. But it was the jury’s assessment,
not the Court of Appeal’s, to make.
In sum, there is “ ‘ “a reasonable chance, more than an
abstract possibility” ’ ” that Hendrix’s jury would have come to
a different verdict had it been correctly told that it should not
find Hendrix guilty if it believed Hendrix made an honest, but
unreasonable, mistake. (Richardson v. Superior Court, supra,
43 Cal.4th at p. 1050, italics omitted.) The law recognizes even
an unreasonable mistake as grounds for acquittal under the
circumstances. And there was substantial evidence — not
overwhelming evidence, but realistic evidence — to support the
conclusion that Hendrix made an unreasonable mistake.
Because there is at least a reasonable probability a jury making
that assessment would have given a different answer had it
received correct instructions in this case, we conclude the
instructional error was prejudicial and requires reversal. The
Court of Appeal erred in concluding otherwise.
Opinion of the Court by Kruger, J.
We reverse the judgment of the Court of Appeal and
remand for further proceedings consistent with this opinion.
We Concur:


See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Hendrix

Procedural Posture
(see XX below
Original Appeal
Original Proceeding
Review Granted
(published) XX 55 Cal.App.5th 1092
Review Granted (unpublished)
Rehearing Granted
Opinion No.
Date Filed: August 22, 2022

County: Ventura
Judge: Paul W. Baelly

Adrian Dresel-Velasquez, under appointment by the Supreme Court,
for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen, Idan Ivri and John Yang,
Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for
publication with opinion):

Adrian Dresel-Velasquez
P.O. Box 3443
Santa Barbara, CA 93130
(916) 215-3519
John Yang
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 269-6105
Opinion Information
Date:Docket Number:
Mon, 08/22/2022S265668