Filed 12/15/17
                 CERTIFIED FOR PUBLICATION


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                         DIVISION ONE


THE PEOPLE,                               B275518

       Plaintiff and Respondent,          (Los Angeles County
                                          Super. Ct. No. GA097057)
       v.

JASMINE NICOLE RICHARDS,

       Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of
Los Angeles County. Elaine Lu, Judge. Reversed with
directions.
      Covington & Burling, Doug Sprague, Neha Jaganathan,
Rebecca Van Tassell, John Nelson and KeAndra Barlow for
Defendant and Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Steven D. Mathews, Supervising Deputy
Attorney General, Robert C. Schneider, Deputy Attorney
General, for Plaintiff and Respondent.
         ____________________________________________
       Defendant and appellant Jasmine Nicole Richards appeals
from the judgment following a jury trial in which she was
convicted of one count of attempting to take another person from
the lawful custody of a peace officer by means of a riot in
violation of Penal Code sections 405a and 664.1 Imposition of
sentence was suspended and Richards was placed on probation,
including a condition of 90 days in county jail.
       Richards was a participant in a “Black Lives Matter”
demonstration on August 29, 2015. During the demonstration,
several demonstrators, including Richards, attempted to prevent
police officers from arresting a suspect, Benita Escoe, who had
been involved in an earlier altercation at a restaurant. The
evidence showed that Richards and at least one other
demonstrator physically attempted to take Escoe away from the
police while an officer was attempting to handcuff Escoe.
       On appeal, Richards argues that: (1) the trial court
erroneously failed to give a sua sponte jury instruction on the
lesser included offense of rescue; (2) the trial court erred in
declining to give an instruction on mistake of fact based upon the
defense theory that Richards did not know Escoe was in lawful
police custody; and (3) the trial court made several erroneous and
prejudicial evidentiary rulings. We agree that attempted rescue
is a lesser included offense of an attempted violation of section
405a, and that the trial court committed reversible error in
failing to give a sua sponte instruction on attempted rescue. We
find no error with respect to the other issues that Richards
raises. We therefore reverse the conviction and remand for


      1Subsequent undesignated statutory references are to the
Penal Code.




                                2
retrial or, at the discretion of the prosecution, for resentencing on
the lesser included offense of attempted rescue under section
4550.
                    FACTUAL BACKGROUND
1.    Prosecution Evidence
      a.      Events at the restaurant
      On August 29, 2015, about 4:20 p.m., Pasadena Police
Officers Krikorian and Covarrubias received a call about a
possible battery incident at the Las Comadres restaurant on Fair
Oaks Avenue. When they arrived at the scene, two other officers
were already there and had detained someone, who was later
identified as Benita Escoe. Krikorian spoke to a woman named
Guadelupe Rodriguez, who told Krikorian that she had received a
telephone call from her mother, Augustina Rodriquez, telling her
that a suspect had punched Augustina in the face and then left
the store where Augustina worked. Guadelupe said that she
confronted the suspect, Escoe, and that Escoe then punched and
kicked her while Guadelupe hit back in self-defense. The
altercation concerned a dispute at Augustina’s restaurant
concerning the restaurant’s refusal to accept Escoe’s credit card.
      Krikorian spoke to Escoe, who did not want to talk other
than to express a concern about getting her phone back.
Krikorian and Covarrubias decided that they would place Escoe
under arrest for battery. The officers informed Escoe that she
was under arrest.
      At that point, about 10 to 15 persons who were
demonstrating across Fair Oaks Avenue at La Pintoresca Park,
including Richards, approached the officers. They were chanting,
“Black Lives Matter,” and also yelling profanities at the officers.
The demonstrators formed a half-circle around the officers, who




                                 3
were attempting to put Escoe in a police car. Escoe walked away
into the group of demonstrators, which formed a “bubble” around
her. Richards told Escoe that she did not need to tell the officers
anything, and, “You stay here with me; I got you.” The officers
backed away from the situation to avoid a physical confrontation.
Krikorian called for assistance.
       b.    Events at the park
       The police had learned of the demonstration in advance and
had been monitoring it with patrol units and a helicopter.
Several officers responded to Krikorian’s call for assistance,
including Officers Garcia and Bzdigian. Bzdigian observed a
small group of protesters move Escoe across the street and into
the park.
       After the officers had verified that the victims were willing
to proceed with a citizen’s arrest and prosecution of Escoe,
Bzdigian and Garcia drove around to the other side of the park,
on Raymond Avenue, where they were met by several more
officers. The officers had formulated a plan to arrest Escoe at a
time when she separated herself from the group. The protesters
were yelling various slogans at the officers, such as “fuck the
police” and “justice for Kendrec McDade.”
       Before driving around the park to the Raymond Avenue
side, Garcia had observed Escoe walking over to a bush in the
park with two or three demonstrators, where Escoe attempted to
conceal herself. While the majority of the demonstrators was
occupied with Bzdigian and Garcia on the Raymond Avenue side,
Officers Ling and Cordova drove around to the Fair Oaks side of
the park in an effort to apprehend Escoe away from most of the
demonstrators. As Ling and Cordova drove into the park from
the Fair Oaks side, Bzdigian and Garcia started walking from the




                                 4
other side of the park toward Escoe. Escoe then started walking
toward the group of demonstrators. At that point, Richards said
something to the crowd that Garcia interpreted as a direction to
surround the officers.
       The officers made a video recording of events at the park,
which was introduced and played at trial. The transcript of the
recording quotes Richards saying around this time: “No cop zone!
No cop zone. What the fuck is ya’ll doing? And this is—C’mon
ya’ll. Step away, ’cause they’re surrounding us. Come here.
C’mon. Everybody move as a unit. Listen to my voice. Let’s
move. Can’t you see what the police is doing? And we’ll move
around they ass.”
       As the officers approached Escoe, the crowd surrounded
her. Garcia walked through the demonstrators and advised the
crowd that the officers were going to arrest Escoe, “and that if
anybody interfered, they would be arrested for interfering with
our investigation.”
       An unidentified man was standing next to Escoe. Garcia
walked up to Escoe, grabbed her left arm, and told her that she
was under arrest. Escoe tried to pull away. At that point,
Richards stepped between them, and the unidentified man
started pulling Escoe by her other arm. Bzdigian arrived and the
officers were able to pull Escoe away from Richards and the
unidentified man, and Garcia attempted to place Escoe in
handcuffs.
       As Garcia was attempting to apply a handcuff to Escoe’s
left hand, Richards “jumped in” and grabbed Escoe by her other
arm, pulling Escoe away from Garcia. Garcia said, “I don’t want
to hurt anyone. I don’t want to hurt anyone.” Bzdigian used his




                               5
forearm to push Richards to the ground. Ling arrived and helped
Garcia place the other handcuff on Escoe.
       After Bzdigian pushed Richards, she said, “He slammed
me. He slammed me on the ground. You’re ’bout to get fucked
up. Black lives matter is out here. I didn’t . . . .” After some
additional exchanges, Richards told the officers, “Put your badge
down, get fucked up”; “You see them slammed me. And I never
touched them. All right. Fuck you, bitch! Put your badge down.
Put your badge down! Put your stick down, see what happens.”
       After Bzdigian pushed Richards to the ground, another
protester in the group also stated, “God gon’ strike all of ya’ll
down to hell. Ya’ll think ya’ll doing good shit? God gon’ strike all
of ya’ll down. Fuck that I ain’t no fucking friendly people. Fuck
cops, nigga. P-D-L. Ya’ll ain’t shit. Every last one of you.”
Bzdigian testified that the initials “PDL” referred to “Pasadena
Denver Lanes,” a street gang in the city of Pasadena.
       Escoe ultimately pleaded no contest to one count of
misdemeanor battery and one count of resisting an officer in the
performance of his or her duty.
2.     The Defense Case
       Richards did not present any evidence in her case. During
closing, Richards argued that Escoe was not in lawful custody;
Escoe was not in custody at all at the time that the officers pulled
her away from Richards; the demonstrators were engaged in a
peaceful protest, not a riot; there was no force or violence, or
immediate threat of force or violence; and there was no proof
beyond a reasonable doubt that Richards had a specific intent to
take Escoe from the police.




                                 6
                            DISCUSSION
1.     The Trial Court Committed Prejudicial Error in
       Failing to Give a Sua Sponte Instruction on a Lesser
       Included Offense
       Richards was convicted of an attempted violation of section
405a. That section punishes anyone who “participates in the
taking by means of a riot of another person from the lawful
custody of a peace officer.”2 Section 404, subdivision (a) defines
“riot” as “[a]ny use of force or violence, disturbing the public
peace, or any threat to use force or violence, if accompanied by
immediate power of execution, by two or more persons acting
together, and without authority of law.”
       Richards argues that the jury should have been instructed
on the elements of attempted rescue under section 4550 as well
as the charged offense of an attempted violation of section 405a.
Section 4550 punishes anyone “who rescues or attempts to
rescue, or aids another person in rescuing or attempting to rescue
any prisoner from any prison, or prison road camp or any jail or
county road camp, or from any officer or person having him or her
in lawful custody.” (§ 4550.)

      2 Before it was amended in 2015, section 405a labeled the
offense that it defines as “lynching.” (See Stats. 2015, ch. 47, § 1;
People v. Jones (1971) 19 Cal.App.3d 437, 442–443 (Jones).) That
term as applied to section 405a differs from the popular sense of a
“lynching.” Under section 405a, there is no requirement that a
person be taken from the police with the intention to impose an
extra-legal summary punishment. (Jones, at p. 443.) The term
“lynching” appears in the cases interpreting section 405a, and the
parties therefore occasionally use the term as well. We similarly
sometimes use the term, without any intention to import its
historical or popular meaning.




                                 7
       During the jury instruction conference, the trial court
informed the parties that it had identified no lesser included
offenses, and the parties agreed that there were none. However,
“California law has long provided that even absent a request, and
over any party’s objection, a trial court must instruct a criminal
jury on any lesser offense ‘necessarily included’ in the charged
offense, if there is substantial evidence that only the lesser crime
was committed.” (People v. Birks (1998) 19 Cal.4th 108, 112
(Birks).) This rule ensures that “the jury may consider all
supportable crimes necessarily included within the charge itself,
thus encouraging the most accurate verdict permitted by the
pleadings and the evidence.” (Ibid.) The rule also “prevents
either party, whether by design or inadvertence, from forcing an
all-or-nothing choice between conviction of the stated offense on
the one hand, or complete acquittal on the other.” (Id. at p. 119.)
       “ ‘[A] lesser offense is necessarily included in a greater
offense if either the statutory elements of the greater offense, or
the facts actually alleged in the accusatory pleading, include all
the elements of the lesser offense, such that the greater cannot be
committed without also committing the lesser.’ ” (People v. Smith
(2013) 57 Cal.4th 232, 240, quoting Birks, supra, 19 Cal.4th at
pp. 117–118.) A trial court’s failure to give a sua sponte
instruction on a lesser included offense is reviewed under the de
novo standard. (People v. Zamani (2010) 183 Cal.App.4th 854,
875.)
       We agree with Richards that the offense of attempted
rescue defined in section 4550 is a lesser included offense of an
attempted violation of section 405a. All of the statutory elements
of attempted rescue are included within the offense of an
attempted violation of section 405a. As relevant here, under




                                 8
section 4550 the elements of attempted rescue are: (1) an
attempt (2) by one person or in connection with others (3) to
rescue a prisoner (4) from the lawful custody of an officer or other
person. The elements of an attempted violation of section 405a
are (1) an attempt (2) to participate (3) in the taking of another
person (4) by means of a riot (5) from the lawful custody of a
police officer. (§§ 405a, 664.)
       Thus, an attempted violation of section 405a contains all
the elements of attempted rescue, along with the additional
element that the taking must be “by means of a riot.” (§ 405a.)
As the court explained in Jones, “Although both sections deal
with the taking of persons from lawful custody, the anti-lynch
law concerns only the taking by means of riot, which presents
greater danger to the officers and populace than a single act of
only a few disciplined persons.” (Jones, supra, 19 Cal.App.3d at
p. 445.)3
       Respondent argues that attempted rescue under section
4550 is not a lesser included offense of an attempted violation of
section 405a because the punishment for a violation of section
4550 is greater than the punishment for an attempted violation
of section 405a. Respondent cites no authority for the proposition
that the severity of possible punishment can be a determining

      3 Although section 4550 uses the term “prisoner” rather
than “person,” that section does not include any definition of a
“prisoner” other than someone who is in the custody of law
enforcement. (See Jones, supra, 19 Cal.App.3d at pp. 441–442
[defendant was guilty of lynching based upon his participation in
taking a person who had just been arrested from the backseat of
a police vehicle].) This element is included in the requirement in
both section 4550 and section 405a that the offender take another
person who is in “lawful custody.”




                                 9
factor in whether a particular crime is a lesser included offense of
another crime. The severity of punishment is not an element of
either the “elements” test or the “accusatory pleading” test that
our Supreme Court has identified as the proper methodologies for
identifying lesser included offenses. (See People v. Shockley
(2013) 58 Cal.4th 400, 404.) However, we need not decide this
legal issue, as the predicate for respondent’s argument is missing
here. A violation of section 4550 in fact may result in less
punishment than an attempted violation of section 405a.
       Respondent compares only the sentencing range for an
attempted violation of section 405a4 with the sentence for a
violation of section 4550 when the latter violation is punished as
a felony. But a violation of section 4550 is a “wobbler” offense
that may be punished either as a felony or a misdemeanor.5 Even


      4 Violation of section 405a is a felony “punishable by
imprisonment pursuant to subdivision (h) of Section 1170 for two,
three or four years.” (§ 405a.) Under section 664, conviction for
an attempted violation of section 405a is punishable by
imprisonment “for one-half the term of imprisonment prescribed
upon a conviction of the offense attempted,” i.e., for 12, 18, or 24
months. (§ 664, subd. (a); In re Maria D. (2011) 199 Cal.App.4th
109, 114 (Maria D.).)
      5 Section 4550, subdivision (b) applies to the unlawful
rescue of any prisoner other than one who was “in custody upon a
conviction of a felony punishable with death.” (§ 4550, subd. (a).)
Violation of section 4550, subdivision (b) may be punished by
“imprisonment pursuant to subdivision (h) of Section 1170, or by
imprisonment in the county jail not to exceed one year.” If
sentenced under the former provision, the violation is a felony,
which under section 1170, subdivision (h) would be punished by
imprisonment for sixteen months, or two or three years. (§ 1170,
subd. (h)(1).) If a violation of section 4550 is sentenced under the




                                10
if severity of punishment were a relevant factor in identifying a
lesser included offense, respondent cannot credibly claim that the
punishment for a violation of section 4550 is more severe than
the punishment for an attempted violation of section 405a when
the former can be a misdemeanor and the latter is always a
felony.
       Because attempted rescue is a lesser included offense of an
attempted violation of section 405a, the trial court was required
to instruct on attempted rescue if the evidence raised “ ‘a
question as to whether all of the elements of the charged offense
were present,” and there was evidence that “the offense was less
than that charged.’ ” (People v. Breverman (1998) 19 Cal.4th 142,
154 (Breverman).) To warrant instruction, the evidence that a
defendant is guilty of only the lesser offense must merely be
“ ‘substantial enough to merit consideration’ by the jury.” (Id. at
p. 162, quoting People v. Flannel (1979) 25 Cal.3d 668, 684,
fn. 12.)
       To prove that Richards was guilty of an attempted violation
of section 405a and not just a violation of section 4550, the
prosecution had to prove that Richards had the specific intent to
participate in an attempt to take Escoe from the custody of the
police “by means of a riot.” (§§ 21a, 405a.) A riot requires the
actual or threatened use of force or violence “by two or more
persons acting together, and without authority of law.” (§ 404,
subd. (a), italics added.) Thus, to show an attempted violation of
section 405a, the prosecution needed to prove that Richards

latter provision, or if the sentencing court declares the violation
to be a misdemeanor when granting probation without imposing
sentence, a violation of section 4550, subdivision (b) is a
misdemeanor. (§ 17, subd. (b)(1), (3).)




                                 11
intended to participate in taking Escoe from the police through
the use of force or threats “by two or more persons acting
together.” (Ibid.)6
        The evidence at trial established that Richards and at least
one other person actually used force in resisting the police efforts
to take Escoe. An unidentified man pulled on Escoe while the
officers were trying to take her away. Richards then grabbed and
pulled on Escoe at the same time that Officer Garcia had Escoe’s
arm and was trying to handcuff her. Richards is clearly visible
on the video pulling on Escoe at the same time the officers were
trying to pull Escoe away.
        However, the jury could have reasonably concluded that
Richards did not form the intent to use force or violence (or the
threat of force or violence) together with another person. (§ 404,
subd. (a).) As the video confirms, the relevant events transpired
very quickly. Only four or five seconds elapse on the recording
between the time that Richards grabs Escoe and the time that
Bzdigian pushes Richards to the ground. During that time
Richards is not clearly using force together with anyone else.
When Richards appears on the video pulling on Escoe, she does so
herself. Thus, the jury could have reasonably found either that
Richards did not act together with another person in using force,
or, if she did, the events happened so quickly that Richards did
not do so intentionally. Based upon that conclusion, the jury



      6 The jury was instructed that a riot “occurs when two or
more people, acting together and without legal authority, disturb
the public peace by using force or violence or by threatening to
use force or violence with the immediate ability to carry out those
threats.”




                                12
could have found that Richards failed to form the intent to take
Escoe from the police “by means of a riot.” (§ 405a.)7
       In light of this evidence, the trial court’s error in failing to
instruct on the lesser included offense of attempted rescue was
prejudicial. “[T]he failure to instruct sua sponte on a lesser
included offense in a noncapital case is, at most, an error of
California law alone, and is thus subject only to state standards
of reversibility.” (Breverman, supra, 19 Cal.4th at p. 165.) Under
those standards, reversal is required when “an examination of
the entire record establishes a reasonable probability that the
error affected the outcome.” (Ibid.; Cal. Const., art. VI, § 13;
People v. Watson (1956) 46 Cal.2d 818, 836.)
       The video recording was the most significant piece of
evidence at trial. The prosecutor used it extensively in
examining witnesses and in closing argument. The defense also
relied on it heavily, urging the jury to “play that video again and
again,” because “there is no riot.”
       The recording shows a demonstration that, while insulting
and profane toward the officers, was peaceful with the exception
of the brief scuffle over Escoe. Richards’s efforts to pull Escoe
away from the police lasted only seconds. If the jury had been
given another alternative to convict Richards for her interference
with the police, the jury could easily have concluded that
Richards’s resort to the minimal force apparent on the video was


      7 Events that occurred on the Fair Oaks side of the park
when officers Krikorian and Covarrubias initially attempted to
arrest Escoe were not recorded on video. However, the evidence
did not establish any use of force at that time. Rather, the
demonstrators formed a “bubble” around Escoe and moved her
away from the officers.




                                  13
impulsive and did not involve the intentional participation with
others in the actual or threatened use of force or violence that
was necessary for a riot. Under this evidence, there was a
reasonable probability that the absence of an instruction on
attempted rescue affected the outcome.
       We therefore must reverse the judgment. When a greater
offense must be reversed, but a lesser included offense could be
affirmed, “we give the prosecutor the option of retrying the
greater offense, or accepting a reduction to the lesser offense.”
(People v. Kelly (1992) 1 Cal.4th 495, 528.) As discussed further
below, we reject Richards’s other claims of error. Thus, although
Richards’s conviction for attempted violation of section 405a must
be reversed, a conviction for attempted rescue under section 4550
could be affirmed. We will therefore give the prosecution the
option of either retrying Richards on the charged felony count of
an attempted violation of section 405a or permitting resentencing
under section 4550.
2.     The Trial Court Did Not Err in Declining Richards’s
       Request for an Instruction on Mistake of Fact
       At trial, Richards requested a jury instruction on mistake
of fact (CALCRIM No. 3406), arguing that she could not be
convicted of an attempted violation of section 405a if she believed
that Escoe was not in the “lawful custody” of the police. The trial
court rejected the instruction. The court ruled that, while the
prosecution must prove Escoe was in fact in lawful custody, it
need not prove that Richards knew the custody was lawful. The
court reasoned that, if the law were otherwise, “any time before
the police ever want to take anybody in custody, there would be
potential objectors in the public who can come and approach the




                                14
police and say, no, you can’t take her into custody.” The court
concluded that this would “not be a workable system.”
       For the reasons discussed below, the trial court did not err
in rejecting the proposed instruction. The trial court correctly
concluded that an attempted violation of section 405a does not
require knowledge that the person a defendant attempted to take
from the police was in lawful custody.
       a.     Knowledge of the lawfulness of police conduct is
              not a necessary element of an attempted
              violation of section 405a
       Whether the trial court should have given a mistake of fact
instruction depends in part upon the state of mind necessary for
conviction of an attempted violation of section 405a. That is a
legal question, and we therefore review it under the de novo
standard. (See People v. Braslaw (2015) 233 Cal.App.4th 1239,
1244.)
       Richards claims that the trial court erred in refusing the
requested instruction because a belief that Escoe was not in the
lawful custody of the police negates the intent element of an
attempted violation of section 405a. Richards argues that, to be
guilty of such an attempt, a defendant must intend to take
another person from lawful police custody. For a number of
reasons we conclude that the intent element of an attempted
violation of section 405a should not be defined to include
knowledge of the lawfulness of police conduct.
       First, neither the language of the statute nor the principle
underlying the punishment of attempts justifies such a standard.
Section 405a does not define any specific intent element for the
completed crime. Anyone who “participates” in the proscribed
activity falls within the scope of the statute. (See People v.




                                15
Patino (1979) 95 Cal.App.3d 11, 27 [“It is clear that the offense of
lynching [citation] is a general intent crime, rather than a
specific intent crime”].) “Lawful custody” is an element of the
completed crime, but the statute does not require knowledge of
the lawfulness of police custody as a separate element.
       Richards does not argue that section 405a requires any
specific intent, but rather relies on the rule that, to be guilty of
an unlawful attempt, a defendant must have the specific intent to
commit the underlying offense. (See § 21a.) That rule is based
on the principle that “ ‘ “[o]ne of the purposes of the criminal law
is to protect society from those who intend to injure it. When it is
established that the defendant intended to commit a specific
crime and that in carrying out this intention he committed an act
that caused harm or sufficient danger of harm, it is immaterial
that for some collateral reason he could not complete the
intended crime.” ’ ” (People v. Medina (2007) 41 Cal.4th 685, 694
(Medina), quoting People v. Toledo (2001) 26 Cal.4th 221, 229–
230.)
       The crux of the offense that section 405a establishes—and
the essence of the harm to society punished by that offense—is
taking a person from the custody of a peace officer by means of a
riot. While the person must be in lawful custody to establish the
completed offense, the threat to social order exists whether or not
a person attempting that offense actually knows that the person
he or she takes is held lawfully.
       Second, reading such a knowledge requirement into the
offense of attempted violation of section 405a would be
inconsistent with the law on mistake as a defense. There are
circumstances in which a good faith mistake about the legal
significance of the relevant facts may negate a defendant’s




                                16
specific intent and constitute a defense to a crime. For example,
a mistaken belief about the ownership status of property can be a
defense to the receipt of stolen property (People v. Russell (2006)
144 Cal.App.4th 1415, 1431); a good faith mistake about the
defendant’s legal right to take or use property can be a defense to
theft or embezzlement (People v. Vineberg (1981) 125 Cal.App.3d
127, 137; People v. Stewart (1976) 16 Cal.3d 133, 139); and a
mistake about the validity of a child custody order might
constitute a defense to a crime of violating that order (People v.
Flora (1991) 228 Cal.App.3d 662, 669–670). However, in such
cases the mistaken belief “must relate to a set of circumstances
which, if existent or true, would make the act charged an
innocent act.” (People v. Lawson (2013) 215 Cal.App.4th 108, 115,
italics added.) Such a belief precludes the finding of wrongful
intent that is generally required to establish the mens rea for a
criminal offense. (See id. at p. 114; § 26 [the classes of persons
who are incapable of committing crimes include those “who
committed the act . . . charged under an ignorance or mistake of
fact, which disproves any criminal intent”].)
       Thus, when a mistake concerns only the severity of an
offense, and the defendant’s conduct remains unlawful even
under the defendant’s mistaken view of the facts, courts have not
recognized mistake as a defense. For example, in People v.
Branch (2010) 184 Cal.App.4th 516 (Branch), the court held that
the defendant was not entitled to an instruction that the
defendant’s good faith, reasonable belief the victim was 18 years
old was a defense to the charges of attempted pimping and
pandering of a minor under the age of 16. (Id. at pp. 520–522.)
The court distinguished that case from cases that recognized the
defense of mistake concerning the age of the victim in




                                17
prosecutions for sexual intercourse with a minor and contributing
to the delinquency of a minor. (Id. at pp. 521–522, citing People
v. Hernandez (1964) 61 Cal.2d 529; People v. Atchison (1978) 22
Cal.3d 181.) The court observed that, unlike those cases, the
defendant’s conduct in Branch (attempted pimping and
pandering) would be criminal regardless of the victim’s age.
       The court in Branch analogized the attempted pandering in
that case to the conduct of selling cocaine to a minor at issue in
People v. Williams (1991) 233 Cal.App.3d 407. The court in
Williams reasoned that “[t]he specific intent for the crime of
selling cocaine to a minor is the intent to sell cocaine, not the
intent to sell it to a minor. [Citations.] It follows that ignorance
as to the age of the offeree neither disproves criminal intent nor
negates an evil design on the part of the offeror. It therefore does
not give rise to a ‘mistake of fact’ defense to the intent element of
the crime.” (Id. at p. 411.)
       Similarly, here, attempting to take someone from the police
by means of a riot is criminal even if the defendant believes that
the police custody is unlawful. At a minimum, such conduct
involves participation, or attempted participation, in a riot, and
may also be an unlawful disturbance of the peace. (See §§ 405,
415.) In addition, the “use of force or violence” against the police,
or a “threat to use force or violence” that is “accompanied by
immediate power of execution” (§ 404, subd. (a)), will likely also
amount to a criminal assault or battery. (§§ 240, 242.)8 The



      8Battery can occur even when contact is indirect, such as
grabbing an object out of a victim’s hand. (See In re B.L. (2015)
239 Cal.App.4th 1491, 1496 [finding battery where a student
knocked a walkie-talkie out of the hand of a physical education




                                 18
unlawfulness of an arrest is not a defense to assault or battery
used to resist arrest. (See § 834a [“If a person has knowledge, or
by the exercise of reasonable care, should have knowledge, that
he is being arrested by a peace officer, it is the duty of such
person to refrain from using force or any weapon to resist such
arrest”]; People v. Curtis (1969) 70 Cal.2d 347, 351–353 (Curtis).)9
       Third, recognizing a mistaken belief about the lawfulness of
police custody as a defense to an attempted violation of section
405a would violate public policy. The defense of mistake of fact is
not appropriate where its recognition would excuse behavior that
violates a strong public policy. (See Branch, supra, 184
Cal.App.4th at p. 522; People v. Olsen (1984) 36 Cal.3d 638, 646
(Olsen) [declining to recognize the defense of reasonable mistake
about the victim’s age in a prosecution for lewd or lascivious
conduct with a minor under the age of 14 because doing so would

teacher].) Here, there was evidence that Richards attempted to
pull Escoe away from the officer who was holding her.
      9  In Curtis, our Supreme Court affirmed a line of cases
holding that section 834a applies to unlawful as well as lawful
arrests, explaining that the section eliminates “the common law
defense of resistance to unlawful arrest.” (Curtis, supra, 70
Cal.2d at p. 354; id. at pp. 351–352.) Although the unlawfulness
of police conduct may be a defense to violations that specifically
punish interference with police in the performance of their lawful
“duty” (such as violations of sections 69 and 148), it is not a
defense to simple assault or battery in resisting arrest. (Curtis,
at pp. 355–356; In re Manuel G. (1997) 16 Cal.4th 805, 815–816.)
If the person being arrested has no right to resist the arrest with
force, a third party has no right to defend that person with force.
(Cf. People v. Craig (1907) 152 Cal. 42, 50 [under the common law
and § 694, a third party cannot interfere with an arrest “except in
aid of a lawful resistance by the person threatened”].)




                                19
contradict the “strong public policy to protect children of tender
years”].)
       There is a public policy against the use of force as a self-
help remedy for police misconduct. That public policy underlies
the requirement in section 834a that a person may not use force
to resist an unlawful arrest. As our Supreme Court observed in
Curtis: “In a day when police are armed with lethal and chemical
weapons, and possess scientific communication and detection
devices readily available for use, it has become highly unlikely
that a suspect, using reasonable force, can escape from or
effectively deter an arrest, whether lawful or unlawful. His
accomplishment is generally limited to temporary evasion,
merely rendering the officer’s task more difficult or prolonged.
Thus self-help as a practical remedy is anachronistic, whatever
may have been its original justification or efficacy in an era when
the common law doctrine permitting resistance evolved.” (Curtis,
supra, 70 Cal.2d at p. 353; see Evans v. City of Bakersfield (1994)
22 Cal.App.4th 321, 332 (Evans) [concluding that the reasoning
in Curtis precludes the use of force to resist an unlawful
detention as well as an unlawful arrest].)
       Richards concedes that “there may be public policy reasons
against allowing a mistake of fact defense with respect to the
completed crime of section 405a,” but argues that “these
considerations do not apply to the charge of attempt.” We do not
agree. As discussed above, the law punishes criminal attempts
because of the danger that the attempted conduct poses to
society. (Medina, supra, 41 Cal.4th at p. 694.) An attempt to
take someone from the police by means of a riot poses a danger to
police and others even if the perpetrator believes that the police
have acted unlawfully, and even if the attempt is unsuccessful.




                                20
Indeed, as our Supreme Court observed in Curtis, in light of the
modern tools available to the police the use of force to resist or
escape custody is more likely to result in an unsuccessful attempt
than in successful resistance. (Curtis, supra, 70 Cal.2d at p.
353.)10
      Fourth, a standard that makes proof of intent dependent
upon a defendant’s subjective belief concerning the lawfulness of
police conduct is impractical. As Richards recognizes, if the
lawfulness of police custody is an element of the intent required
for an attempted violation of section 405a, any honest belief in
the unlawfulness of the custody, no matter how unreasonable,
would constitute a defense. (People v. Watkins (1992) 2

      10  Richards cites People v. Hanna (2013) 218 Cal.App.4th
455 for the proposition that policy considerations that preclude a
mistake of fact defense to a completed crime do not apply to an
attempted commission of that crime. The court in Hanna
distinguished our Supreme Court’s decision in Olsen, supra, 36
Cal.3d 638, that public policy precludes a mistake of fact defense
to commission of a lewd act on a child under the age of 14 on the
ground that the defendant in Olsen was convicted of the
completed offense and the defendant in Hanna was charged with
an attempt. (Hanna, at p. 461.) The court did not explain why it
concluded that the policy considerations were different for an
attempted and a completed act of lewd conduct with a minor
under age 14, and we need not consider that issue here. The
court apparently based its decision on the fact that the purported
belief of the defendant in that case that the minor in question
was over 18 would have made the defendant’s conduct lawful.
(See id. at pp. 461–462.) As discussed above, that principle does
not apply here. We do not read Hanna as holding that policy
reasons can never preclude a mistake of fact defense for an
attempted crime, nor do we interpret Olsen as suggesting such a
broad rule.




                                21
Cal.App.4th 589, 594.) But persons charged with an attempted
violation of section 405a will not necessarily know all the factual
circumstances surrounding an arrest, much less understand the
legal significance of those circumstances.11 A subjective standard
in these circumstances makes conviction dependent on the
defendant’s imperfect knowledge of events as filtered through the
defendant’s personal life experience and world view. The
observations of the court in Evans are equally apt here: “[W]e
are swayed by the commonsense realization that the propriety of
a detention is often the subject of a vigorously contested ‘motion
to suppress’ presented in court long after the initial incident. If
the ultimate determination of the lawfulness of the detention is a
troublesome question for trained legal minds, should there be a
rule of law allowing spur-of-the moment physical force triggered
by the detainee’s lay perception of the detention’s legal
justification? The mere positing of the question provides the
answer. No.” (Evans, supra, 22 Cal.App.4th at pp. 332–333.)
       Richards relies on the statement in Maria D. that “in order
to be guilty of attempted lynching, a defendant must harbor a


      11 That is the case here. Most of Richards’s argument at
trial concerning the legality of Escoe’s detention addressed events
that occurred in connection with Escoe’s previous altercation at
the restaurant. Richards was not present for that incident and
had no firsthand knowledge of what occurred. Richards
apparently had some information from Escoe, as reflected in
Richards’s statement recorded on the video that “[t]he girl that
you guys are harassing had her phone stolen but you was
treating her as if she was the one that did it. Why is the black
person always . . . why can’t we be the victim?” However, there is
nothing in the record indicating that Richards had any
knowledge of the events at the restaurant from any other source.




                                22
specific intent to free a lawfully detained person.” (Maria D.,
supra, 199 Cal.App.4th at p. 116.) That case did not concern the
precise knowledge element required for attempted lynching, but
rather considered and rejected the appellant’s argument that the
offense of attempted lynching should not be recognized because it
is already included within the less serious offense of inciting a
riot under section 404.6, subdivision (a). (Id. at pp. 115–116.)
The court distinguished the intent necessary for attempted
lynching from the intent necessary under section 404.6, which
“requires proof that a defendant have the specific intent to do
nothing more than cause a riot.” (Id. at p. 116.) The important
distinction in that case was between an intent simply to cause a
riot and an intent to participate in a riot to free someone from the
police. The case did not hold that actual knowledge of lawful
police custody is necessary for conviction of an attempted
lynching, and we do not find it persuasive on that point here.
       We therefore conclude that the trial court did not err in
refusing an instruction that Richards’s belief in the unlawfulness
of Escoe’s custody constituted a defense.
       b.    Knowledge that a person is in the legal
             “custody” of the police is not an element of an
             attempted violation of section 405a
       Richards also argues that the trial court erred in refusing
an instruction that Richards was not guilty if she mistakenly
believed that Escoe was not in police custody at all. We conclude
that such an instruction was not warranted under the facts of
this case.
       For the same reasons discussed above, knowledge that a
person is in police “custody” as defined by the law is not
necessary to prove an attempted violation of section 405a. All




                                23
that is necessary is an intent to participate in taking a person
from the police by means of a riot. Such conduct is unlawful and
poses the same dangers to police and others, even if a defendant
believes that the police do not actually have the person in
“custody” in a legal sense. A rule requiring knowledge of the
legal status of custody would raise the same policy and practical
problems as a rule requiring knowledge that the police acted
lawfully in taking the person into custody.
       The evidence in this case leaves no doubt that Richards
knowingly attempted to take Escoe away from the police.
Richards clearly knew that the officers were police; indeed, that
was the basis for her announcement that the park was a “[n]o cop
zone” and her admonishment that “[t]he police are trying to come
in the park.” The officers also announced that “[i]f anyone assists
[Escoe], they’re going to get arrested.” The evidence also showed
that Richards tried to take Escoe from the officers. Garcia
testified that Richards tried to pull Escoe away from him after
Garcia had grabbed Escoe’s arm and had told her she was under
arrest.12 Richards’s attempt is clearly visible in the video
recording.
       While Richards disputes whether she intended to incite or
participate in a riot, she acknowledges that she “and two other
individuals were physically involved in attempting to extract
Escoe.” Whether Richards knew that this attempted extraction


      12 In light of this evidence, we need not consider whether a
mistake of fact instruction might be appropriate in other
circumstances that create a reasonable doubt as to whether a
defendant actually knew that he or she was attempting to take a
person from the police (for example, if there is a question the
persons involved were actually police officers).




                                24
occurred while Escoe was in formal police custody was irrelevant
to the element of intent under section 405a. It was sufficient that
Richards intended to take Escoe from the police.13
      A trial court is not required to give an instruction on
mistake that is not supported by substantial evidence. (People v.
Meneses (2008) 165 Cal.App.4th 1648, 1665–1666.) We therefore
find no error in the trial court’s refusal to give a mistake
instruction here.
3.    The Trial Court Did Not Err in its Evidentiary
      Rulings
      Richards claims that the trial court committed reversible
error with respect to two evidentiary rulings. First, she argues
that the trial court should not have permitted testimony
explaining that the protester’s statement about “PDL” referred to
a gang affiliation. Second, she claims that the trial court should
have excluded evidence concerning Escoe’s no contest pleas. We
conclude that the trial court acted within its discretion with

      13 The instructions that the trial court gave adequately
informed the jury that it must find that Richards intended to
take Escoe from the police. The court instructed the jury that it
must find “[t]he defendant intended to unlawfully take a person
from the lawful custody of a peace officer by means of a riot.” The
instructions further defined the elements of section 405a by
including the requirement that “[t]he defendant intended to take
the other person from the lawful custody of a peace officer when
the defendant willfully participated in the riot.” While these
instructions were arguably ambiguous as to whether Richards
must have actually known that Escoe was in “lawful custody,”
that ambiguity is irrelevant because, as discussed above, such
knowledge was not necessary for conviction. The instructions did
clearly inform the jury that it must find an intent to take a
person from the police by means of a riot.




                                25
respect to each of these decisions. (People v. Albarran (2007) 149
Cal.App4th 214, 225 [trial court’s evidentiary rulings are
reviewed for abuse of discretion].)
       First, the protester’s statement referring to the PDL gang
was directly relevant to an element of the charged offense. A
defendant may be convicted under section 405a if he or she
“participates” in taking another person from the lawful custody of
the police “by means of a riot.” (§ 405a.) As discussed above, a
riot may be established by proof of actual force or violence or by
“any threat to use force or violence, if accompanied by immediate
power of execution.” (§ 404, subd. (a).) Part of Richards’s defense
at trial was that she did not participate in a riot. Evidence that
one of the protesters announced a gang affiliation in a
threatening manner was relevant to the existence of a threat to
the officers that might constitute a riot under section 404,
subdivision (a).
       Richards argues that the protestor’s statement was
irrelevant because it was made after Escoe had already been led
away and the “alleged attempted taking had ended.” But
Richards was charged with an attempt, which requires specific
intent, and her state of mind was therefore an important issue.
Evidence that another participant in the demonstration made
threatening, gang-related statements was relevant to the nature
of the demonstration, and therefore to Richards’s state of mind in
participating in the demonstration, regardless of when those
statements were made.
       Nor did the trial court err in deciding that the testimony
about gang affiliation was not unduly prejudicial. The testimony
did not attempt to link Richards to a gang or suggest that the
jury make such an inference. It simply explained the significance




                                26
of the reference to “PDL” and why the officers could believe it was
threatening.
       Second, the trial court acted within its discretion in
concluding that evidence of Escoe’s conviction was relevant to
rebut one of Richards’s defenses. Richards claimed at trial that
Escoe was not in lawful police custody because there were no
legal grounds for her arrest. Moreover, the jury was instructed
that it must find that the officers “were lawfully performing their
duties as a peace officer,” and that “[a] peace officer is not
lawfully performing his or her duties if he or she is unlawfully
arresting or detaining someone.” In light of Richards’s defense
and the prosecution’s burden as described in the instructions, the
trial court reasonably concluded that Escoe’s plea was relevant to
rebut any “mistaken impression that, in fact, the suspect
[(Escoe)] could have been an innocent victim.” The conclusion
was logically based on the fact that the evidence “goes to the
lawfulness of the custody.”
       Like the protester’s statement referring to a gang, evidence
concerning Escoe’s plea was also not unfairly prejudicial. The
plea concerned a third party, not Richards. It did not implicate
Richards in any unrelated criminal conduct. There was no
testimony concerning any of the underlying facts leading to
Escoe’s conviction.
       We therefore conclude that the trial court properly acted
within its discretion in admitting both of these items of evidence.




                                27
                           DISPOSITION
       The judgment is reversed and the case is remanded for
further proceedings pursuant to the procedure outlined in People
v. Hayes (2006) 142 Cal.App.4th 175, 184, and People v. Brown
(2016) 245 Cal.App.4th 140, 173. If, after the filing of the
remittitur in the trial court, the prosecution does not bring
Richards to retrial on the charged offense of an attempted
violation of section 405a within the time limit of Penal Code
section 1382, subdivision (a)(2), the trial court shall proceed as if
the remittitur constituted a modification of the judgment to
reflect a conviction of the lesser included offense of attempted
rescue in violation of Penal Code section 4550, and shall
resentence Richards accordingly.
       CERTIFIED FOR PUBLICATION.




                                            LUI, J.
We concur:




      CHANEY, Acting P. J.




      JOHNSON, J.




                                 28
