People v. Hsiung

Filed 4/30/26
                CERTIFIED FOR PARTIAL PUBLICATION *

       IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                        FIRST APPELLATE DISTRICT

                                DIVISION FIVE


 THE PEOPLE,
         Plaintiff and Respondent,             A169697
 v.
 WAYNE HANSEN HSIUNG,                          (Sonoma County
         Defendant and Appellant.              Super. Ct. No. SCR721464)


       This appeal relates to the right of a criminal defendant to present a
complete defense to the jury, including the right to present evidence
regarding the defendant’s misconceptions regarding the legality of his or her
conduct when the charged offenses are specific intent crimes.
       Defendant, Wayne Hansen Hsiung, was convicted on two counts of
trespass and one count of conspiracy to commit trespass relating to his
involvement in animal rights protests at two Sonoma County poultry farms.
On appeal, defendant seeks reversal of these counts, arguing: (1) the trial
court prejudicially erred by finding his defense of necessity legally
unavailable; (2) the court deprived him of his constitutional right to present a
complete defense by refusing to instruct the jury or permit him to present
evidence or argument related to his good faith mistake of law that his actions


       * Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this

opinion is certified for publication with the exception of part III of the
discussion.


                                        1
were legally justified under the necessity defense; (3) Penal Code section 31, 1
the aiding and abetting statute on which the jury was instructed, violates the
First Amendment to the extent it criminalizes a defendant’s “promotion” of
another person’s illegal conduct; (4) section 602, subdivision (o), the basis of
count 2, trespass by refusing or failing to leave property, violates the First
Amendment as a content-based restriction on speech; (5) the court
prejudicially erred by failing to adequately respond to a jury question
regarding the meaning of “promote”; and (6) the prosecutor denigrated his
de facto religious beliefs in ethical veganism and animal rights to the jury.
      We reject all these arguments except one. We agree with defendant
that the trial court erroneously limited his presentation of evidence to the
jury related to his two-prong mistake of law defense. Accordingly, we reverse
count 1, conspiracy to commit trespass by refusing to leave private property
(§§ 182, subd. (a)(1), 602, subd. (o)), and count 4, trespass with intent to
interfere with a lawful business (§ 602, subd. (k)), and remand for further
proceedings as to these counts. We affirm the judgment as to count 2 (§ 602,
subd. (o)).
              FACTUAL AND PROCEDURAL BACKGROUND
      Defendant cofounded a grassroots animal rights network called Direct
Action Everywhere, or DxE. Through DxE, defendant and other animal
rights advocates engaged in “open rescues,” a nonviolent tactic in which an
individual or group concerned about animal suffering enters private
commercial property without permission for the purpose of documenting the
conditions of animals confined therein and, if necessary, rescues animals
deemed to be in urgent need of veterinary care. The advocates then shared
information, including photographs and video footage, relating to the

      1 Unless otherwise stated, all statutory citations are to the Penal Code.




                                        2
conditions found during the rescues with the public and law enforcement in
order to address the suspected animal suffering.
I.    The Amended Information.
      On September 26, 2023, an amended information was filed charging
defendant with felony conspiracy to commit trespass by refusing to leave
private property (§§ 182, subd. (a)(1), 602, subd. (o); count 1); misdemeanor
trespass by refusing to leave private property (§ 602, subd. (o); count 2);
felony conspiracy to commit trespass with intent to interfere with a lawful
business (§§ 182, subd. (a)(1), 602, subd. (k); count 3); and misdemeanor
trespass with intent to interfere with a lawful business (§ 602, subd. (k);
count 4).
      These charges arose from two open rescue incidents involving
defendant and his DxE colleagues at poultry farms in Sonoma County. The
first incident took place at Sunrise Farms on May 29, 2018, and the second
incident took place at Reichardt Duck Farm on June 3, 2019.
II.   The Trial.
      Trial began on September 8, 2023, and lasted several weeks.
Defendant represented himself in propria persona. Many witnesses were
called, including representatives from Sunrise Farms and Reichardt Duck
Farm, DxE activists, local law enforcement officials, legal professionals, and
veterinarians. Defendant testified in his own defense. The following
evidence was presented.
      A.    Sunrise Farms.
      Sunrise Farms (Sunrise) is a privately owned commercial egg farm in
Sonoma County with a flock of around 800,000 hens as of 2018. Sunrise is
not open to the general public.




                                        3
      In July 2016, defendant and his DxE colleagues began investigating
Sunrise due to concerns that Sunrise was not complying with animal welfare
laws. On several occasions, defendant entered Sunrise through unlocked
doors and observed animals that he believed were suffering. In photographs
and video footage, defendant documented apparently sick, injured, immobile,
and severely neglected animals.
      Defendant shared his information with several individuals, including a
veterinarian, Dr. Sherstin Rosenberg, and a criminal law professor, Hadar
Aviram. Dr. Rosenberg confirmed to defendant that, in her opinion, the video
footage showed severe overcrowding at the farm as well as animals suffering
from visible illnesses or injuries that made it difficult for them to access food
and water. Professor Aviram agreed. She provided defendant a written
opinion on May 17, 2018, offering legal justifications for taking actions to
assist the animals at Sunrise. 2
      Defendant and his colleagues also took their concerns to state and local
law enforcement agencies, including the Sonoma County District Attorney’s
Office and Sheriff’s Office. However, the agencies took no action.
      Ultimately, defendant concluded the only way to address what he
considered an “ongoing emergency” at Sunrise was to take more direct action.
Accordingly, defendant organized an open rescue on May 29, 2018, the last
day of the multiday 2018 Animal Liberation Conference, held in the San


      2 As we discuss post, the trial court excluded or limited portions of

Professor Aviram’s testimony regarding the fact that she advised defendant,
albeit mistakenly, that he and his colleagues were legally justified in
trespassing at Sunrise to prevent animals from suffering imminent harm.
The court did, however, permit Professor Aviram to testify regarding her
more limited opinion that a statute (§ 597e) authorized them to trespass in
order to provide food or water to those animals that had been deprived of food
or water for over 12 hours.


                                        4
Francisco Bay Area. During this open rescue incident, defendant and several
hundred DxE activists engaged in various forms of protest, including
entering private barns, recording and photographing animal conditions,
locking people to farm machinery, rescuing animals that appeared to be
severely injured or distressed, and holding a candlelight vigil just outside the
property. Defendant carried with him Professor Aviram’s written opinion
that their actions were legally justified to prevent ongoing animal suffering,
as well as his prior photographs and footage reflecting the animals’ condition.
      Michael Weber, an owner of Sunrise, testified that, when he arrived at
the farm during the incident, he told the group to leave, insisting they had no
right to be there. Defendant referred him to Professor Aviram’s opinion and
insisted their actions were justified. Defendant, with numerous followers,
then walked directly passed Weber toward a large barn, despite Weber’s
protestations that they posed a biosecurity risk to his animals.
      A DxE activist nonetheless opened the barn door, prompting a struggle
between farm employees and activists as the employees tried to close the
door. A co-owner of the farm repeatedly directed the activists to leave,
warning they were on private property. They did not. Instead, they headed
toward a second barn housing more chickens. Once there, the activists
entered and removed several chickens, insisting they had a right to be there
to save the chickens. Eventually, law enforcement arrived and defendant
and many others were arrested.
      The entire incident was live streamed and shared on social media.
      B.    Reichardt Duck Farm.
      Since approximately 2014, DxE activists were also concerned about the
treatment of animals on Reichardt Duck Farm (Reichardt), a privately owned
commercial duck farm in Sonoma County. Although Reichardt was not open



                                       5
to the public, the activists collected information regarding the farm’s
practices through public record requests and by entering the premises to
document what they believed to be ducks suffering from injury and disease
and without access to food or water.
        Defendant was not involved in the activists’ investigation of Reichardt;
however, he was aware of it. He shared with Dr. Rosenberg and a former
federal prosecutor, Bonnie Klapper, video footage taken on Reichardt
property that he obtained from the activists. Dr. Rosenberg opined that the
footage indeed showed animals that appeared to be suffering from severe
injuries or illnesses. Klapper, in turn, opined that the activists would be
legally justified in entering the property to aid or rescue the ducks and to
provide them food and water. 3
        On June 3, 2019, soon after defendant obtained the opinions of
Dr. Rosenberg and Klapper, and during the Animal Liberation Conference in
Berkeley, activists affiliated with DxE entered Reichardt and rescued several
ducks, bringing them to a veterinarian to receive food, water, and medical
treatment. Some of the activists also locked themselves to Reichardt’s front
gate.
        Defendant, who disagreed with using lockdowns as an activist tool, did
not participate in the activists’ June 3, 2019 open rescue incident. He did,
however, provide them with legal advice and guidance while they were
planning it. During the incident, the activists used bike locks to lock
themselves by the neck to the farm’s processing line. When the line began
moving unexpectantly, farm workers were able to stop it before anyone was



        3 Discussed post, the trial court excluded evidence that Klapper opined

that the defense of necessity provided a legal justification for defendant’s and
defendant’s colleagues’ actions.


                                        6
seriously injured. However, the line was damaged as a result. The activists
then formed a human blockade to prevent ingress and egress from the farm
while a few individuals removed duck carcasses from the property.
      Later that day, defendant appeared outside the farm to lead a peaceful
vigil, during which he voiced support for the other activists. Defendant
encouraged people to provide, and did provide, food and water to those who
needed it, including law enforcement and farm workers. He discussed his
belief, based on the opinions of Klapper and others, that their actions were
lawful. He also tried to encourage law enforcement to investigate in
exchange for the activists’ leaving the area. He was again arrested at the
scene.
      C.    Theories and Evidence Excluded from Trial.
      The trial court made several rulings before and during trial that
impacted defendant’s presentation of his theory of the case. For one,
defendant sought to present a defense based on the legal doctrine of
necessity. Defendant reasoned that he believed, based on legal opinions he
received prior to his commission of the charged offenses, that he was justified
in trespassing on the poultry farms in order to prevent alleged cruelty to the
animals there. He also sought to present a related defense of mistake of law,
based on his belief that the necessity doctrine justified his actions. According
to defendant, even if his belief were mistaken, it was nonetheless relevant to
whether he had the requisite state of mind to commit the specific intent
crimes charged in counts 1, 3, and 4.
      The trial court ruled that the necessity defense was, as a matter of law,
inapplicable in this case. As such, the trial court also precluded defendant
from presenting a mistake of law defense based on necessity and from
presenting any evidence or argument on the necessity issue. The court did,



                                        7
however, allow defendant to present a more limited defense based on section
597e, a statute that authorizes trespass under certain circumstances in order
to provide food or water to an impounded animal that has been deprived of
food or water for over 12 hours. Accordingly, the jury was given a mistake of
law instruction relating to defendant’s alleged belief that section 597e
justified his and his colleagues’ actions.
III.   The Jury’s Deliberations.
       The jury began deliberating on October 24, 2023. During their
deliberations, jurors had numerous questions regarding defendant’s mistake
of law defense. In particular, the jury queried whether the relevant jury
instruction on mistake of law as a defense (CALCRIM No. 3411) applied to
mistakes of law generally or only to mistakes of law relating to section 597e.
The trial court directed jurors back to the relevant instructions and clarified
that they could only consider mistakes of law as to section 597e.
IV.    The Verdict and Subsequent Appeal.
       On November 2, 2023, after many days of deliberation, the jury
convicted defendant of counts 1, 2, and 4 but could not reach a verdict on
count 3. The prosecution elected not to retry count 3, and it was
subsequently dismissed. This timely appeal followed.
                                 DISCUSSION
       Defendant raises the following issues on appeal: (1) Did the trial court
prejudicially err by excluding his necessity defense as a matter of law; (2) did
the court prejudicially err by refusing to permit the jury to consider his
mistake of law defense predicated on necessity and excluding related
evidence; (3) does section 31 violate the First Amendment to the extent it
criminalizes a defendant’s “promotion” of another person’s illegal conduct;
(4) did the court prejudicially err by refusing to provide a substantive



                                        8
response to a jury question regarding the meaning of “promote”; (5) does
section 602, subdivision (o) violate the First Amendment as a content-based
restriction on free speech; and (6) did the trial court prejudicially err by
permitting the prosecutor to repeatedly disparage his de facto religious
beliefs in animal rights? We address each issue post as appropriate. 4
I.    Necessity Defense.
      At trial, defendant sought to raise a defense of necessity and provided
an offer of proof with respect to its elements. In particular, defendant also
proffered evidence that he committed the charged offenses because he
believed, based on legal and veterinary opinions he obtained from experts,
that his actions were lawful because they were necessary to prevent ongoing
animal suffering on the poultry farms. Defendant thus asked the court to
instruct the jury on this defense pursuant to CALCRIM No. 3403. 5




      4 We have read and considered the briefs filed in support of defendant

by amici curiae Climate Defense Project, Professor Kristen Stilt, Nonhuman
Rights Project, Professor Jens Bülte, Professor Matthew Liebman et al.,
Animal Justice, and Center for Constitutional Rights et al.
      5 CALCRIM No. 3403 provides:       “In order to establish th[e necessity]
defense, the defendant must prove that:
       “1. (He/She) acted in an emergency to prevent a significant bodily harm
or evil to (himself/herself/ [or] someone else);
       “2. (He/She) had no adequate legal alternative;
       “3. The defendant’s acts did not create a greater danger than the one
avoided;
       “4. When the defendant acted, (he/she) actually believed that the act
was necessary to prevent the threatened harm or evil;
       “5. A reasonable person would also have believed that the act was
necessary under the circumstances;
       “AND
       “6. The defendant did not substantially contribute to the emergency.”
(1st bracketed insertion added.)

                                        9
      The trial court denied defendant’s request, finding that a necessity
defense was not, as a matter of law, available to prevent harm to animals.
The trial court alternatively found that the necessity defense required a
showing of immediacy of a perceived danger, which was undermined by the
undisputed fact that the crimes occurred during a planned action. On appeal,
defendant challenges the court’s ruling as prejudicial error.
      Generally, a trial court is required to instruct the jury on a defendant’s
proposed defense if there is substantial evidence to support the defense.
(People v. Salas (2006) 37 Cal.4th 967, 982.) When, as here, the trial court
refuses to give an instruction on the grounds that the proposed defense is
legally unavailable, our standard of review is de novo. (People v. Morales
(2021) 69 Cal.App.5th 978, 990.)
      Traditionally, the defense of necessity has covered situations in which
physical forces beyond the defendant’s control rendered illegal conduct “the
lesser of two evils.” (People v. Heath (1989) 207 Cal.App.3d 892, 899 (Heath).)
“California appellate courts have recognized the necessity defense ‘despite
the absence of any statutory articulation of this defense and rulings from the
California Supreme Court that the common law is not a part of the criminal
law in California.’ ” (In re Eichorn (1998) 69 Cal.App.4th 382, 388 (Eichorn).)
      “The defense of necessity generally recognizes that ‘ “the harm or evil
sought to be avoided by [defendant’s] conduct is greater than that sought to
be prevented by the law defining the offense charged.” ’ ” (People v. Coffman
and Marlow (2004) 34 Cal.4th 1, 100.) As such, the necessity defense is
permitted based on public policy considerations. (People v. Kearns (1997) 55
Cal.App.4th 1128, 1134–1135.) In other words, “[n]ecessity does not negate
any element of the crime, but represents a public policy decision not to
punish such an individual despite proof of the crime.” (Heath, supra, 207



                                       10
Cal.App.3d at p. 901.) However, because the necessity defense “ ‘represents a
public policy decision not to punish . . . an individual despite proof of the
crime’ ” (Eichorn, supra, 69 Cal.App.4th at p. 389), the defense is “very
limited” (People v. Beach (1987) 194 Cal.App.3d 955, 971).
      Whether necessity exists is generally a question of fact. (Eichorn,
supra, 69 Cal.App.4th at p. 389.) To justify an instruction on the necessity
defense, the defendant must proffer evidence sufficient to establish that he or
she “violated the law (1) to prevent a significant evil, (2) with no adequate
alternative, (3) without creating a greater danger than the one avoided,
(4) with a good faith belief in the necessity, (5) with such belief being
objectively reasonable, and (6) under circumstances in which he [or she] did
not substantially contribute to the emergency.” (People v. Pepper (1996) 41
Cal.App.4th 1029, 1035; Heath, supra, 207 Cal.App.3d at p. 901; see
CALCRIM No. 3403.) If the defendant fails to proffer substantial evidence on
any of these six elements, the trial court may refuse to give a necessity
instruction. (See People v. Trippet (1997) 56 Cal.App.4th 1532, 1539
(Trippet); In re Weller (1985) 164 Cal.App.3d 44, 48–50.)
      Here, the trial court refused to instruct the jury on defendant’s
proposed necessity defense after concluding, as a matter of law, that the
defense only applies to a defendant who broke the law to prevent significant
harm to a human rather than a “non-human.”
      On appeal, defendant counters that no California court has carved out
an animal exception to the “significant evil” element of the necessity defense.
Instead, he says, courts have looked to whether a California public policy is
implicated by the alleged harm in a necessity case. Thus, he reasons,
because preventing animal cruelty is public policy in California, animal




                                        11
cruelty may be considered a “significant evil” for purposes of the necessity
defense in a particular case.
      Defendant is correct that, because the necessity defense is based on
public policy, “we must look to public policy to determine whether the defense
was available to the defendant on the facts presented here.” (People v.
Youngblood (2001) 91 Cal.App.4th 66, 73 [only the Legislature is vested with
the responsibility to declare the state’s public policy] (Youngblood).) If public
policy considerations do not support a necessity defense, the court need not
give the instruction. (See id. at pp. 73–74 [necessity defense unavailable to
defendant who hoarded dozens of cats to prevent them from being euthanized
because California law expressly authorizes cat euthanasia]; People v.
Garziano (1991) 230 Cal.App.3d 241, 242 [necessity defense unavailable to
defendant who committed crimes while demonstrating outside an abortion
clinic because abortion is a protected right]; United States v. Oakland
Cannabis Buyers’ Cooperative (2001) 532 U.S. 483, 491 [149 L.Ed.2d 722]
[necessity defense must not be applied in a manner that would be at odds
with the Legislature’s “ ‘determination of values’ ”]; People v. Galambos
(2002) 104 Cal.App.4th 1147, 1152 [“An unexpressed common law defense
should not be engrafted onto a statutory scheme that embodies an
inconsistent policy determination”].)
      Relevant here, there is a clear legislative determination, embodied in
section 597, that animal cruelty is against public policy in California. (§ 597,
subd. (b) [“whoever, having the charge or custody of an animal . . . , subjects
an animal to needless suffering, or inflicts unnecessary cruelty upon the
animal, or in any manner abuses an animal, or fails to provide the animal
with proper food, drink, or shelter, or protection from the weather . . . , is, for
each offense, guilty of a crime”]; see Farm Sanctuary, Inc. v. Department of



                                        12
Food & Agriculture (1998) 63 Cal.App.4th 495, 504 [“ ‘It has long been the
public policy of this country to avoid unnecessary cruelty to animals’ ”].)
However, the existence of this public policy does not mean self-help is an
available remedy to prevent suspected animal cruelty occurring on someone
else’s private property, particularly when such property is a commercial farm
regulated by a separate statutory scheme, to wit, the Food and Agricultural
Code. (See Food & Agr. Code, § 9164 [“In order to prevent the spread of any
livestock disease, it is unlawful for any person, that does not have a written
permit issued by the director, to remove, or cause to be removed, any
livestock from slaughterhouse pens, yards, corrals, or similar holding places
where livestock is held for the purpose of immediate slaughter, except
directly into the slaughterhouse that controls such pens, yards, corrals, or
similar holding places”].)
      Moreover, even were we to accept defendant’s public policy argument,
this alone would not support a necessity instruction. As stated ante, there
must be substantial evidence supporting each of the elements of the defense
in order to warrant bringing it to the jury. Assuming arguendo a defendant
who commits a crime to prevent animal cruelty could be entitled to present a
necessity defense in an appropriate case, this is not such a case. 6


      6 Neither this court nor the California Supreme Court has ruled that

the necessity defense applies exclusively to situations involving physical
harm to a human. As noted by defendant and amici curiae, at least one
appellate court in this state has considered the necessity defense in a case
involving the risk of harm to animals without dismissing the defense as
legally unavailable—yet, without specifically addressing whether the
common law supports the applicability of the necessity defense in such a case.
(Youngblood, supra, 91 Cal.App.4th at pp. 72–74.) Courts in other states and
various legal treatises, in turn, have included property damages as a type of
harm that can trigger the necessity defense in criminal cases. (E.g., Strong v.
State (Alaska Ct. App. 2022) 508 P.3d 1127, 1131–1133 & fn. 18 [trial court

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      Defendant contends both his offer of proof and the trial evidence were
sufficient to support each element of the necessity defense. His offer
demonstrated that: (1) defendant believed he had no choice but to trespass on
the poultry farms to prevent “ongoing and unlawful harm to animals” that
was documented in photographs and video footage; (2) no adequate legal
course of action was available since “ ‘he had reached out to the authorities
for assistance on dozens of occasions (including on the morning of the May 29
demonstration at Sunrise)’ to no avail”; (3) his actions did not create a greater
danger than the one avoided because all activists wore “veterinarian-
approved biosecurity gear” while entering barns and were trained in
nonviolence; (4) his good faith belief in the necessity was based on opinions he
received from legal and veterinary experts; (5) his belief was objectively
reasonable based on “multiple investigations . . . that showed animals
suffering and opinions to that effect”; and (6) he did not contribute to the
“animal suffering.” (See People v. Pepper, supra, 41 Cal.App.4th at p. 1035.)
      We disagree that defendant’s offer of proof is sufficient to support a
necessity defense, as did the trial court in its alternative ruling. California


erred in finding as a matter of law that boat damage and destruction of
salmon catch resulting from hydraulic spill did not constitute a “ ‘significant
evil’ ” for purposes of the necessity defense], citing 2 LaFave, Substantive
Criminal Law (3d ed. 2018) § 10.1(d)(1), p. 166 [recognizing that “ ‘[t]he harm
avoided need not be physical harm (death or bodily injury)’; it ‘may . . . be
harm to property’ ”]; 2 Robinson, Criminal Law Defenses (July 2021 supp.)
§ 124(g)(3), pp. 62–63 [observing that, although some states limit the
necessity defense to cases involving threats of personal injury, that approach
is not the universal view and it does not accord with the policy rationale
behind the defense; “[s]ince the proportionality requirement demands that
the harm resisted must always be greater than that actually caused, there
can be no danger in leaving the triggering conditions open to seemingly minor
threats”].) To be sure, this debate raises interesting issues. However, for
reasons discussed post, we need not delve into them.


                                       14
case law is clear: “ ‘[T]here must be a showing of imminence of peril before
the defense of necessity is applicable. A defendant is “not entitled to a claim
of . . . necessity unless and until he demonstrates that, given the imminence
of the threat, violation of [the law] was the only reasonable alternative.”
United States v. Bailey (1980) 444 U.S. 394, 411 [62 L.Ed.2d 575, 591, 100
S.Ct. 624]. The uniform requirement of California authority discussing the
necessity defense is that the situation presented to the defendant be of an
emergency nature, that there be threatened physical harm, and that there
was no legal alternative course of action available.’ (People v. Weber (1984)
162 Cal.App.3d Supp. 1, 5 [208 Cal.Rptr. 719]; People v. Heath, supra, 207
Cal.App.3d at p. 901 [same]; People v. Patrick [(1981)] 126 Cal.App.3d [952,]
960 [‘a well-established central element [of the necessity defense] involves the
emergency nature of the situation, i.e., the imminence of the greater harm
which the illegal act seeks to prevent’].)” (People v. Galambos, supra, 104
Cal.App.4th at pp. 1162–1163, 1st, 6th & 7th bracketed insertions added, 1st
& 3d italics added.) 7
      Thus, stated otherwise: “ ‘The situation presented to the defendant
[relying on a necessity defense] must be of an emergency nature, threatening
physical harm, and lacking an alternative, legal course of action. . . . An
important factor of the necessity defense involves the balancing of the harm
to be avoided as opposed to the costs of the criminal conduct. . . . [T]he
threatened harm is in the immediate future, which contemplates the



      7 As noted in People v. Patrick, supra, in “[s]ome formulations of the

necessity defense [the instructions] specifically include an ‘imminence’
requirement,” while “[i]n others, the immediacy of the danger becomes a
factor in assessing the reasonableness of the actor’s belief regarding the
magnitude of the ‘greater harm’ he seeks to prevent.” (126 Cal.App.3d at p.
960, fn. 6.)


                                       15
defendant having time to balance alternative courses of conduct. [Citation.]
The defendant has the time, however limited, to form the general intent
required for the crime, although under some outside pressure.’ ” (Eichorn,
supra, 69 Cal.App.4th at pp. 387, 389–391, 1st & 2d bracketed insertions
added [defendant, a homeless man who violated an ordinance banning
sleeping in parks, was entitled to an instruction on the necessity defense
based on evidence that lack of sleep constituted a significant evil and he had
no means to procure an alternative place to sleep].)
      As these principles reflect, “the defense of necessity more properly
applies to situations when the person asserting the defense is faced with an
extraordinary, or at least unusual, situation. The basic context of this
defense is that, ‘[u]nder the force of extreme circumstances, conduct which
would otherwise constitute a crime is justifiable and not criminal; the actor
engages in the conduct out of necessity to prevent a greater harm from
occurring.’ (1 Wharton, Criminal Law [(15th ed. 1994)] Defenses, § 90, p.
614, fn. omitted.) . . . This would be consistent with the classic settings in
which the defense of necessity has been discussed, such as to steal food to
prevent starvation, or to sacrifice the life of another to avoid ‘drowning,
starvation, or other catastrophe.’ (1 Witkin & Epstein, Cal. Criminal Law
[(3d ed. 2000)] Defenses, § 55, p. 391.)” (People v. Lee (2005) 131 Cal.App.4th
1413, 1429–1430.)
      Defendant’s case (People v. Lovercamp (1974) 43 Cal.App.3d 823
(Lovercamp)) is instructive. There, an inmate was convicted of escaping from
prison after the trial court refused to instruct the jury on the inmate’s theory
that she escaped to avoid an imminent sexual attack by a group of fellow
inmates. Reversing, the reviewing court held that “a limited defense of
necessity is available if the following conditions exist: (1) The prisoner is



                                        16
faced with a specific threat of death, forcible sexual attack or substantial
bodily injury in the immediate future; [¶] (2) There is no time for a complaint
to the authorities or there exists a history of futile complaints which make
any result from such complaints illusory; [¶] (3) There is no time or
opportunity to resort to the courts; [¶] (4) There is no evidence of force or
violence used towards prison personnel or other ‘innocent’ persons in the
escape; and [¶] (5) The prisoner immediately reports to the proper authorities
when he has attained a position of safety from the immediate threat.” (Id. at
pp. 825, 831–832, 833, fn. omitted.)
      The Lovercamp court took pains to explain the limited nature of its
holding given the traditional role of necessity in our common law: “In a
humane society some attention must be given to the individual dilemma. In
doing so the court must use extreme caution lest the overriding interest of the
public be overlooked. The question that must be resolved involves looking to
all the choices available to the defendant and then determining whether the
act of escape was the only viable and reasonable choice available. . . . While
we conclude that under certain circumstances a defense of necessity may be
proven by the defendant, at the same time we place rigid limitations on the
viability of the defense in order to insure that the rights and interests of
society will not be impinged upon. We have not formulated a new rule of law
but rather have applied rules long ago established in a manner which effects
fundamental justice.” (Lovercamp, supra, 43 Cal.App.3d at p. 827.)
      Here, in contrast, the “long ago established [rules]” underlining the
defense of necessity (Lovercamp, supra, 43 Cal.App.3d at p. 827) do not
support its application given the absence of any showing of an emergency
situation threatening imminent harm. (See Trippet, supra, 56 Cal.App.4th at
p. 1539 [“The standard for evaluating the sufficiency of the evidentiary



                                        17
foundation [for a necessity instruction] is whether a reasonable jury,
accepting all the evidence as true, could find the defendant’s actions justified
by necessity”].) Indeed, as defendant himself acknowledged: “[T]hese were
not hasty decisions . . . , these were actions that were taken in good faith with
every effort made to comply with the law.”
         The record is in accord. Defendant and other DxE activists described
preparations that began well in advance of the Sunrise incident on May 29,
2018, and the Reichardt incident on June 13, 2019. These preparations
involved: (1) obtaining legal advice from lawyers regarding the implications
of the activists’ plans; (2) hiring a veterinarian to opine on the conditions of
the animals living on the poultry farms based on video and photographic
evidence previously gathered by activists; and (3) organizing and training
groups of activists to participate in various protest activities that included
peaceful vigils outside the properties, a lockdown on farm property, and
animal rescues from inside barns conducted by activists donning biohazard
suits.
         Indeed, the fact that both incidents, Sunrise in 2018 and Reichardt in
2019, occurred during or just before the Animal Liberation Conference, a
large animal rights activism event in Berkeley, reflect the level of detail and
advanced planning that went into them.
         This evidence undermines any claim that defendant had no choice but
to commit trespass because he was acting in an emergency situation to
prevent imminent, significant harm to animals. To be sure, the dictionary
defines “emergency” as “an unforeseen combination of circumstances or the
resulting state that calls for immediate action.” (Merriam-Webster’s
Unabridged Dict. <https://unabridged.merriam-
webster.com/unabridged/emergency> [as of Apr. 29, 2026]; accord, Health &



                                        18
Saf. Code, § 1797.70 [defining “emergency” for purposes of the Good
Samaritan laws as “a condition or situation in which an individual has a need
for immediate medical attention, or where the potential for such need is
perceived by emergency medical personnel or a public safety agency”].)
Defendant’s and defendant’s DxE colleagues’ unlawful actions simply cannot
be characterized as a response to an unforeseen situation presenting a need
for immediate medical attention.
      We also have another concern. Defendant’s offer of proof ignores that
“there is in place an explicit and comprehensive legislative scheme for
enforcement of [animal] anticruelty laws [which] includ[es] direct
participation of both concerned residents and registered humane
officers . . . .” (Animal Legal Defense Fund v. Mendes (2008) 160 Cal.App.4th
136, 143–144 (Mendes).) In particular, Penal Code section 599a provides,
“ ‘When complaint is made, on oath, to any magistrate authorized to issue
warrants in criminal cases, that the complainant believes’ animal cruelty is
taking place or will take place at a specific site, ‘the magistrate must issue
and deliver immediately a warrant directed to any sheriff, police or peace
officer or officer of any [Bus. & Prof. Code, § 10400 corporation], authorizing
him to enter and search that building or place, and to arrest any person there
present violating, or attempting to violate’ any anticruelty law.” (Mendes, at
p. 143, italics added.)
      While defendant claims he made “[m]ultiple reports of animal cruelty
to regulatory authorities and local authorities, including the Sonoma County
District Attorney’s Office and Sonoma County Sheriff,” there is no evidence
he took the appropriate and legally available step of filing a complaint under
oath pursuant to section 599a before committing these trespasses. (See
Mendes, supra, 160 Cal.App.4th at p. 143 [“the Penal Code expressly provides



                                       19
a remedy for those . . . [who] believe, inter alia, animal cruelty ‘is being, or is
about to be’ committed in ‘any particular building or place’ ”].) Under these
circumstances, we question defendant’s claim that there were no legal means
available to prevent harm to these animals.
      Finally, we borrow wise words written by the Honorable Clinton W.
White, our First Appellate District colleague, over 30 years ago: “We do not
mean to ignore or trivialize this country’s history of civil disobedience (e.g.,
the Boston Tea Party, the Underground Railroad, Freedom Marches in the
South, and some of the Vietnam War protests). From the perspective of
history many unlawful acts may be seen as justified or even ‘necessary.’
Some have been rendered lawful by finding constitutional defects in the
prohibitory enactments. But the determination that these actions were
‘necessary’ can only be made from a distance, and then not with legal
precision. Unless the laws are held unconstitutional, those challenging or
defying them must be prepared to bear the short-term consequences of their
actions in the hope that society will benefit and that historians will look
charitably upon them.” (In re Weller (1985) 164 Cal.App.3d 44, 48–50
[necessity defense unavailable to defendants who trespassed to protest at a
nuclear missile manufacturing plant due to defendants’ “failure to present
legally sufficient evidence that [they] lacked an adequate alternative to
criminal trespass”].) 8
      Because the evidence offered by defendant was insufficient to permit a
reasonable jury to find his unlawful actions were done “in an emergency” to



      8 To the extent defendant’s out-of-state authority (State v. Spokane

County Dist. Court (2021) 198 Wash.2d 1, 12–16 [491 P.3d 119]) is
inconsistent with the California authority cited herein, we respectfully
disagree with it.


                                        20
prevent a “significant bodily harm or evil” (CALCRIM No. 3403), the trial
court properly refused to instruct the jury on the necessity defense.
II.   Mistake of Law Defense Predicated on Defendant’s Good Faith
      Belief that the Necessity Defense Was Available to Him.
      Our holding that the necessity defense was legally unavailable to
defendant does not, however, end our discussion of the necessity defense. An
issue remains regarding whether the jury was entitled to know that
defendant honestly, albeit mistakenly, believed the necessity defense justified
his actions for purposes of establishing a different defense: mistake of law.
      At trial, defendant requested a jury instruction on the mistake of law
defense based on his good faith belief that his conduct at Sunrise and
Reichardt was lawful—negating any specific intent to commit trespass or
conspiracy as charged in counts 1, 3, and 4. He based this good faith belief on
two legal grounds: necessity and section 597e, a statute authorizing trespass
under certain circumstances to supply food or water to an impounded animal
that has been deprived of food and water for more than 12 consecutive hours.
(§ 597e.)
      The court granted defendant’s request as to section 597e, giving the
jury a modified version of CALCRIM No. 3411 (Mistake of Law As a
Defense). 9 However, the court refused his request as to necessity, reasoning
that necessity “cannot be the basis for a mistake of law defense” because
“[n]ecessity does not negate any element of an underlying offense . . .
including specific intent.” Accordingly, the court excluded all evidence

      9 The modified version of CALCRIM No. 3411 (Mistake of Law As a

Defense) provided that defendant could not be found guilty of conspiracy to
commit trespass (counts 1 and 3) or trespass by interfering with or
obstructing a business (§ 602, subd. (k); count 4) “if he made an honest or
good faith mistake about the law,” such that he “did not have the specific
intent/mental state required for the crime . . . .”


                                      21
relating to necessity, including any discussion in the legal opinions defendant
obtained from Professor Aviram and former federal prosecutor Klapper before
participating in the Sunrise and Reichardt incidents, relating to necessity as
a legal justification for his actions.
      The jury had several questions regarding defendant’s mistake of law
defense, as limited to section 597e, during their deliberations. For example,
the jury queried: “Does Mistake of Law as a Defense apply to the law that
was broken (602.o in count 1), or the law he believed made his act lawful
(597E)?” (Sic.) The court responded: “I refer you back to instructions 3407
and 3411.”
      A few days later, the jury queried: “We have been instructed not to use
597e as a defense. [¶] In count 1, 3 & 4 Mistake of Law As A Defense (3411)
can we consider 597e as the ‘Mistake of Law’?” (Sic.) The court responded,
“Yes.” Nonetheless, later the same day, the jury queried: “In Section 3411 of
the Juror Instructions, ‘Mistake of Law as a Defense’—paragraph 3, line 5—
does the phrase ‘the law’ mean specifically section 602, or ‘the law’ considered
generally?” The court responded: “When you consider 602(o) or 602(k) as
referenced in cts 1, 3 and 4, you can consider mistake of law as to
597(e) [sic].”
      Finally, on November 2, 2023, shortly before reaching a verdict, the
jury queried: “In requirement 2 of Counts 1 and 3, Conspiracy to commit
trespass, is it sufficient that just the defendant be found not to be operating
under a mistake of law, or must at least two persons be found to be not
operating under a mistake of law, for purposes of establishing intent?” The
court responded: “For the defendant to be found guilty of conspiracy, you
must find that defendant and at least one other alleged co-conspirator had
the requisite intent. [¶] If you were to find that defendant had the requisite



                                         22
intent for conspiracy, but that every alleged co-conspirator lacked the
requisite intent for conspiracy, as a result of their mistake of law, then
defendant cannot be found guilty of conspiracy.”
      On appeal, defendant contends his constitutional rights to a trial by
jury and to present a defense were violated by the court’s refusal to instruct
on mistake of law based on his belief that his conduct was justified on
necessity grounds and its exclusion of evidence and argument regarding
necessity. Defendant reasons that his belief regarding the lawfulness of his
conduct “goes directly to the question of whether [he] had the specific intent
required for conviction.” We agree.
      A.    Mistake of Law as a Defense to Trespass (§ 602, subd. (k))
            and Conspiracy.
      While a mistake of law is not a defense to a general intent crime, a
mistake of law may be a defense to a specific intent crime when the mistake
negates the defendant’s specific intent to commit the crime. (People v. Noori
(2006) 136 Cal.App.4th 964, 977; People v. Howard (1984) 36 Cal.3d 852,
862–863.) Thus, CALCRIM No. 3411, the standard instruction on mistake of
law, provides, in relevant part: “The defendant is not guilty of [the charged
crime] if [he or she] made an honest or good faith mistake about the law, if
that mistake shows that [he or she] did not have the [specific intent or
mental state] required for the [crime] . . . .” (CALCRIM No. 3411.)
      A defendant is entitled to a mistake of law instruction “ ‘if the evidence
supports a reasonable inference that any such claimed belief was held in good
faith.’ ” (People v. Koenig (2020) 58 Cal.App.5th 771, 808 (Koenig).) “The
instruction is properly refused if circumstances ‘ “indicate that although
defendant may have ‘believed’ he acted lawfully, he was aware of contrary
facts which rendered such a belief wholly unreasonable, and hence in bad
faith.” ’ ” (Ibid.; see People v. Stewart (1976) 16 Cal.3d 133, 140 [“ ‘Whether a


                                       23
claim is advanced in good faith does not depend solely upon whether the
claimant believes he was acting lawfully; the circumstances must be
indicative of good faith’ ”].)
        On appeal, we review a trial court’s refusal to instruct the jury on a
valid criminal defense de novo. (People v. Manriquez (2005) 37 Cal.4th 547,
581.)
        Here, the charged offenses in counts 1 and 4, trespass under section
602, subdivision (k) and conspiracy, are both specific intent crimes.
A trespass conviction requires proof that the defendant entered property “for
the purpose of injuring property or property rights or with the intention of
interfering with, obstructing, or injuring any lawful business or occupation
carried on by the owner of the land . . . .” (§ 602, subd. (k).) A conspiracy
conviction, in turn, “requires proof that the defendant and another person
had the specific intent to agree or conspire to commit an offense, as well as
the specific intent to commit the elements of that offense, together with proof
of the commission of an overt act ‘by one or more of the parties to such
agreement’ in furtherance of the conspiracy.” (People v. Morante (1999) 20
Cal.4th 403, 416.)
        Thus, under CALCRIM No. 3411, a defendant charged with trespass
under section 602, subdivision (k) or conspiracy would not be guilty if he or
she made an honest or good faith mistake regarding the lawfulness of his or
her actions, if that mistake showed the defendant did not have the specific
intent or mental state required for the crime. People v. Urziceanu (2005) 132
Cal.App.4th 747 (Urziceanu) is illustrative. There, a defendant charged with
selling marijuana and conspiracy to sell marijuana was precluded at trial
from asserting a mistake of law defense. The appellate court reversed,
holding that while the defendant’s good faith mistake of law was not a



                                        24
defense to the general intent crime of selling marijuana, it was a defense to
the conspiracy to commit that crime. (Id. at pp. 775–776.) Urziceanu
explained that for the defendant to be found guilty of conspiracy, he must
have had the specific intent to commit the crime that was the object of the
conspiracy, meaning he “must have known what he was doing was illegal and
he must have intended to violate the law . . . .” (Id. at p. 776.)
      Urziceanu followed People v. Marsh (1962) 58 Cal.2d 732 (Marsh).
(Urziceanu, supra, 132 Cal.App.4th at pp. 778–779.) In Marsh, the California
Supreme Court expounded: “The essence of the crime of conspiracy is the
‘evil’ or ‘corrupt’ agreement to do an unlawful act. It is the evil intent that
makes a combination criminally indictable. ‘The association of persons with
an honest intent is not conspiracy, and one of the tests on a conspiracy trial
is, did the accused act in ignorance without criminal intent? In other words,
did they honestly entertain a belief that they were not committing an
unlawful act?’ ” (Marsh, at p. 743.) Thus, in Marsh, in which the defendants
were accused of conspiring to practice medicine without a license, the trial
court erred in instructing the jury that criminal intent was present even if
the defendants believed their conduct was lawful. (Id. at pp. 742–744.)
Nonetheless, the Supreme Court found the court’s error nonprejudicial based
on evidence proving the defendants knew it was unlawful to practice
medicine without a license. (Id. at p. 744; cf. People v. Meneses (2008) 165
Cal.App.4th 1648, 1664 [“In defendant’s association with others, his asserted
belief that they were not committing an unlawful act when referring insureds
for fees was a defense to conspiracy, and the trial court properly instructed
the jury on this point”].)
      The People try to distinguish this case law by arguing mistake of law
and necessity are “incompatible.” They reason: “The necessity defense



                                        25
required [defendant] to acknowledge that his conduct in committing trespass
was a crime, but that it was justified to prevent imminent harm. Mistake of
law could only be used to negate the specific intent for conspiracy by showing
that [defendant] mistakenly believed that the trespass was not a crime.”
(Italics omitted.) Thus, the People argue, “One cannot simultaneously believe
their conduct was lawful (mistake of law) while also believing they had no
alternative but to break the law (necessity).” This logic is flawed.
      It is defendant’s nonculpable state of mind, not his awareness that he
was committing a trespass, that is relevant. As Urziceanu explains, a
defendant, in defense to the charge of conspiracy, may not prove a good faith
mistake of law by arguing he or she was “unaware of the precise statute he
was violating”; however, a defendant may “ ‘offer evidence of their good faith
or mistake.’ (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements,
§ 76, p. 288.)” (Urziceanu, supra, 132 Cal.App.4th at p. 779.) In other words,
“ ‘the law recognizes honest purpose, not dishonest ignorance of the law, as a
defense to a charge of committing a crime requiring “specific intent.” ’ ” (Id.
at p. 779; accord, Marsh, supra, 58 Cal.2d at p. 743 [“ ‘The mere fact that the
conspiracy has for its object the doing of an act which may be unlawful,
followed by the doing of such act, does not constitute the crime of conspiracy,
unless the jury find that the parties were actuated by a criminal intent’ ”].)
      Thus, in Urziceanu, the defendant was entitled to present evidence of
his good faith belief that his selling marijuana, a statutory crime, was lawful
under the Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5)
because such evidence tended to negate the mens rea required for conspiracy
to sell marijuana. (Urziceanu, supra, 132 Cal.App.4th at p. 779.)
      Accordingly, defendant should have been permitted to present to the
jury a mistake of law defense based on his good faith, albeit incorrect, belief



                                       26
that committing a trespass was legally justified by necessity,
notwithstanding his awareness that trespassing was a crime. Under Marsh
and Urziceanu, if the jury believed that defendant had a good faith belief his
actions were lawful, based on legal advice he received on the applicability of
the common law defense of necessity, this fact would have negated the
specific intent to violate the law required for a conviction on counts 1 and 4.
“That, ultimately, [should have been] a question of fact for a properly
instructed jury.” (Urziceanu, supra, 132 Cal.App.4th at p. 779; accord,
Koenig, supra, 58 Cal.App.5th at pp. 806–807 [mistake of law instruction was
“not incompatible with the charged conduct” when the offense required
knowledge of a material omission in defendant’s tax return].)
      B.     Evidence Supporting a Mistake of Law Defense
             Predicated on Necessity.
      As mentioned, “all that is required to warrant the [mistake of law]
instruction is ‘evidence from which it can be inferred that defendant[’s]
alleged belief in the lawfulness of [his] conduct was in good faith . . . .’ ”
(Koenig, supra, 58 Cal.App.5th at p. 808, 1st bracketed insertion added.)
      Defendant proffered evidence that included legal opinions from
Professor Aviram, a criminal law professor, and Bonnie Klapper, a former
federal prosecutor, to disprove that he had the specific intent to commit
trespass or conspiracy to commit trespass. As the trial court acknowledged,
the “vast majority” of these opinions were dedicated to the necessity defense,
which the lawyers deemed a valid defense to the planned open rescue at
Sunrise or Reichardt.
      In particular, Professor Aviram opined, “[I]n a situation such as the one
captured in the [Sunrise] footage I saw, and based on my legal expertise as a
criminal justice scholar and law professor, it is my opinion that an open
rescuer who removes sick animals from this facility should be able to


                                         27
successfully argue for a necessity defense against any charges of trespass or
misappropriation.” (Boldface omitted.) Professor Aviram also presented a
detailed legal analysis with respect to each element of the necessity defense
based on the footage she reviewed, including the “emergency” element.
      Similarly, Klapper offered defendant a legal opinion shortly before the
Reichardt incident in 2019 that entering the property and giving aid or
rescuing animals would be justified under the circumstances she reviewed in
footage recorded at the farm.
      This proffered evidence could adequately support a jury instruction on
the mistake of law defense predicated on defendant’s good faith belief that
the necessity defense was available to him. It tended to prove defendant
acted not with a criminal specific intent to commit trespass or conspiracy but
with an “honest purpose,” based on (mistaken) legal advice, that the necessity
defense justified, in the absence of other legal remedies, his entering the
farms to prevent significant ongoing harm to the confined animals.
(Urziceanu, supra, 132 Cal.App.4th at pp. 776–780 [evidence of the
defendant’s good faith belief he was not violating the law in the context of a
conspiracy charge was sufficient to support mistake of law instruction];
Koenig, supra, 58 Cal.App.5th at p. 809 [evidence was sufficient to support
mistake of law instruction when the defendant’s nondisclosure of material
information was a good faith decision based on the legal advice of several
attorneys].)
      Yet, as discussed post, the trial court found that “any evidence that
goes particularly to the issue of necessity is not relevant.” As such, the trial
court barred testimony on necessity and ordered the redaction of any
reference to necessity in the legal opinions defendant relied upon, even while
acknowledging the “vast majority of their opinions” relate to necessity and



                                       28
merely “touch upon 597e . . . .” The court also instructed the jury to “consider
mistake of law as to 597(e) [sic]” when the jury asked during deliberations
whether the term “ ‘the law’ ” in CALCRIM No. 3411 means “ ‘the law’
considered generally.” (Italics added.) The court’s rulings were erroneous.
While we make no decision as to other potential evidentiary grounds for
limiting or excluding the opinions of the veterinarians and legal
professionals, we do hold that defendant should have been permitted to rely
on some or all of those opinions to prove to the jury his good faith, albeit
mistaken, belief that he and his colleagues had a right to trespass to rescue
or to prevent significant harm to animals, and not just to provide food and
water to those animals coming under section 597e. Such evidence is relevant
to defendant’s state of mind for purposes of counts 1 and 4.
      In so holding, we note that neither party has addressed the issue of
whether defendant’s mistaken belief that he had a right to trespass was, in
fact, held in good faith. Nor do we address this issue. Rather, we hold only
that defendant should have been entitled to present to the jury his defense
and supporting evidence that his good faith reliance on the opinions of
veterinarians and legal professionals justified his actions.
      C.    Prejudicial Error.
      Defendant contends the court’s errors—failing to instruct on mistake of
law predicated on necessity and excluding relevant evidence—were structural
in nature, requiring reversal. The People, sticking to their claim that no
mistake of law instruction was warranted, make no attempt to rebut this
argument. In any event, defendant is correct.
      “Whether rooted directly in the Due Process Clause of the Fourteenth
Amendment, Chambers v. Mississippi [(1973) 410 U.S. 284] [35 L.Ed.2d 297],
or in the Compulsory Process or Confrontation clauses of the Sixth



                                       29
Amendment [citations], the Constitution guarantees criminal defendants ‘a
meaningful opportunity to present a complete defense.’ [Citations.] We
break no new ground in observing that an essential component of procedural
fairness is an opportunity to be heard.” (Crane v. Kentucky (1986) 476 U.S.
683, 690 [90 L.Ed.2d 636]; see People v. Stewart, supra, 16 Cal.3d at pp. 140–
141 [failure to instruct on defendant’s theory that he lacked intent to commit
embezzlement because he believed in good faith that he was authorized to
appropriate the funds “constitutes a denial of [his] right [to present a defense]
which ‘is in itself a miscarriage of justice’ ”]; People v. Ahmed (2018) 25
Cal.App.5th 136, 143–144 [reversal required when defendant was deprived of
the right to assert a medical marijuana defense].)
      Here, defendant was indeed deprived of the right to assert a defense.
An instruction on mistake of law predicated on necessity went to the crux of
whether defendant formed the specific intent to commit the charged offenses
of trespass and conspiracy. Yet, defendant was restricted to a mistake of law
defense predicated on section 597e, which only provided a limited
justification for trespassing in order to provide food and water to impounded
animals that had gone without food and water for 12 or more consecutive
hours. This limitation proved disingenuous in the face of unseen evidence
that defendant believed he and his colleagues were legally entitled to enter
the property for the purpose of removing suffering animals to provide
necessary medical care. Indeed, as mentioned, defendant entered those
properties with the legal opinions of Professor Aviram and Klapper in hand,
for the express purpose of explaining to those present and watching on social




                                        30
media that his actions were justified. The jury heard a much more limited
version of the story. 10
       It cannot be said on this record that the refusal to permit defendant to
present a mistake of law defense predicated on necessity was harmless
beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24
[17 L.Ed.2d 705].) Accordingly, counts 1 and 4 must be reversed.
III.   Constitutionality of Relevant Criminal Statutes.
       In the event of a retrial, we briefly address those of defendant’s
remaining contentions that are likely to resurface. 11
       Defendant contends two criminal statutes applied in his case are
unconstitutional: section 31 (aiding and abetting) and section 602,
subdivision (o) (trespass by refusing or failing to leave property; count 2). His
contentions are reviewed de novo (Ghirardo v. Antonioli (1994) 8 Cal.4th 791,
799–801) and with the understanding that “ ‘courts will presume a statute is
constitutional unless its unconstitutionality clearly, positively, and
unmistakably appears; all presumptions and intendments favor its validity’ ”
(People v. Fuiava (2012) 53 Cal.4th 622, 696).

       10 Not surprisingly, the prosecutor elicited testimony from a Sunrise

owner that he never saw activists providing food or water to the animals, and
then cross-examined Professor Aviram regarding the limited circumstances
to which section 597e applied, noting it would not apply to “large groups of
people entering onto private property and . . . not engaged in providing an
animal food or water” but, rather, using video recording equipment to
“document[] the conditions of the farm . . . .”
       11 We need not consider defendant’s contentions regarding the exclusion

of specific evidence relating to his criminal intent and the adequacy of the
court’s response to a jury inquiry regarding the term “promote.” And, we
decline on forfeiture grounds to consider defendant’s contention that the trial
court prejudicially erred by permitting the prosecutor to treat his de facto
religious beliefs in animal rights and veganism with hostility in front of the
jury. (In re M.H. (2016) 1 Cal.App.5th 699, 713.)


                                        31
      A.    Section 31 (Aiding and Abetting).
      Defendant contends section 31, on which the jury was instructed,
violates the First Amendment to the extent it extends criminal liability to a
defendant for “ ‘promoting’ ” another person’s civil disobedience. (Boldface
omitted.) He reasons that criminalizing conduct that “ ‘promotes’ ” the
actions of another is facially overbroad and impermissibly restricts speech as
applied to his case.
      Defendant’s facial constitutional attack on section 31 for “promoting”
the actions of another fails because the term “promote” or “promoting” is
simply not mentioned in the statute. Rather, section 31 provides:
“All persons concerned in the commission of a crime, whether it be felony or
misdemeanor, and whether they directly commit the act constituting the
offense, or aid and abet in its commission, or, not being present, have advised
and encouraged its commission, and all persons counseling, advising, or
encouraging children under the age of fourteen years, or persons who are
mentally incapacitated, to commit any crime, or who, by fraud, contrivance,
or force, occasion the drunkenness of another for the purpose of causing him
to commit any crime, or who, by threats, menaces, command, or coercion,
compel another to commit any crime, are principals in any crime so
committed.”
      Moreover, to the extent defendant raises an as-applied challenge based
on the use of the term “promote” in the relevant jury instructions, this
challenge also fails. “An as-applied challenge ‘ “contemplates analysis of the
facts of a particular case . . . to determine the circumstances in which the
statute . . . has been applied and to consider whether in those particular
circumstances the application deprived the individual to whom it was applied
of a protected right.” [Citation.] When reviewing an as-applied



                                       32
constitutional challenge on appeal, we defer to the superior court’s findings
on historical facts that are supported by substantial evidence and then
independently review the constitutionality of the statute under those facts.’ ”
(Cahill Construction Co., Inc. v. Superior Court (2021) 66 Cal.App.5th 777,
789–790.)
      Here, the relevant jury instruction provided: “To prove that the
defendant is guilty of a crime based on aiding and abetting that crime, the
People must prove that:
      “1. The perpetrator committed the crime;
      “2. The defendant knew that the perpetrator intended to commit the
crime;
      “3. Before or during the commission of the crime, the defendant
intended to aid and abet the perpetrator in committing the crime; and,
      “[4.] The defendant’s words or conduct did in fact aid and abet the
perpetrator’s commission of the crime.
      “Someone aids and abets a crime if he knows of the perpetrator’s
unlawful purpose and he specifically intends to, and does in fact, aid,
facilitate, promote or instigate the perpetrator’s commission of that crime.
      “If all of these requirements are proved, the defendant does not need to
actually have been present when the crime was committed to be guilty as an
aider and abettor.” (CALCRIM No. 401, italics added.)
      The California Supreme Court has endorsed this language as a correct
statement of the law, holding that “a person aids and abets the commission of
a crime when he or she, acting with (1) knowledge of the unlawful purpose of
the perpetrator; and (2) the intent or purpose of committing, encouraging, or
facilitating the commission of the offense, (3) by act or advice aids, promotes,




                                       33
encourages or instigates, the commission of the crime.” (People v. Beeman
(1984) 35 Cal.3d 547, 561, italics added.)
      And, while we are unaware of any California case addressing the
constitutionality of section 31 to the extent it restricts one who promotes the
commission of a crime, numerous such cases have addressed the
constitutionality of another criminal statute’s use of the term “promote.”
Section 186.22, which criminalizes “willfully promot[ing]” certain gang
activity, has survived several constitutional challenges, including, as here,
First Amendment challenges based on its guarantee of freedom of
association. 12 (E.g., In re Alberto R. (1991) 235 Cal.App.3d 1309, 1322
(Alberto R.); People v. Green (1991) 227 Cal.App.3d 692, 703–704; cf. People v.
Castaneda (2000) 23 Cal.4th 743, 752.)
      For example, in Alberto R., the defendant “allege[d] specific terms in
[section 186.22] make it so uncertain and so broad the statute fails to give
fair notice of what conduct it proscribes, thereby inviting arbitrary
enforcement by local police, and includes all forms of association in violation
of the First Amendment.” (Alberto R., supra, 235 Cal.App.3d at pp. 1321–
1322.) The Alberto R. court disagreed, noting the phrase “ ‘to promote,
further, or assist’ ” was “specifically addressed by the court in Green. (People
v. Green [(1991)] 227 Cal.App.3d [692,] 703–704.)” (Id. at p. 1322.) Thus,
Alberto R. continued, “We agree with that court’s conclusions, there is
nothing unconstitutionally vague or overbroad about the phrase ‘promote,
further, or assist,’ which has been consistently used by the courts to describe


      12 Section 186.22, subdivision (a) provides, in relevant part: “A person
who actively participates in a criminal street gang with knowledge that its
members engage in, or have engaged in, a pattern of criminal gang activity,
and who willfully promotes, furthers, or assists in any felonious criminal
conduct by members of that gang, shall be punished . . . .” (Italics added.)


                                       34
‘aiding and abetting’ ([citation]; see People v. Beeman (1984) 35 Cal.3d 547,
560 [citations]) . . . .” (Ibid.)
       We agree with this analysis. Further, we note that when, as here, a
defendant challenges the constitutionality of a statute as overbroad based on
the First Amendment, he or she must establish the statute “ ‘prohibits a
“ ‘substantial amount of constitutionally protected conduct.’ ” ’ ” (People v.
Rubalcava (2000) 23 Cal.4th 322, 333; see People v. Green, supra, 227
Cal.App.3d at p. 704 [“Where a provision is of doubtful validity we must, if
possible, impose on it a construction which eliminates doubts as to its
constitutionality. (In re Kay (1970) 1 Cal.3d 930, 942 [citations].)”].)
Defendant has not met this high standard.
       On its face, section 31 does not invade the area of protected freedoms.
It does not seek to regulate speech but conduct. Moreover, not just any
conduct but criminal conduct. No defendant, including our defendant, can be
convicted as an aider and abettor unless there is proof beyond a reasonable
doubt that he or she knew the perpetrator intended to commit the crime and
intended, before or during the commission of the crime, to aid and abet the
perpetrator in the commission of the crime. (CALCRIM No. 401.) Thus, the
rights of speech and association are implicated only to the extent their
purpose is to perpetuate criminal activity. “[T]he mere fact that one can
conceive of some impermissible applications of a statute is not sufficient to
render it susceptible to an overbreadth challenge.” (City Council v.
Taxpayers for Vincent (1984) 466 U.S. 789, 800 [80 L.Ed.2d 772].)
Accordingly, defendant’s challenge fails.
       B.     Constitutionality of Section 602, Subdivision (o) (Count 2).
       Lastly, we address defendant’s contention that section 602,
subdivision (o) violates the First Amendment as a content-based restriction



                                        35
on free speech because a person’s entry onto a property is either protected or
criminalized depending on the content of their expressive activity.
       Section 602, subdivision (o)(1) prohibits a person from willfully
committing a trespass by “[r]efusing or failing to leave land, real property, or
structures belonging to, or lawfully occupied by, another and not open to the
general public, upon being requested to leave by (1) a peace officer at the
request of the owner, the owner’s agent, or the person in lawful possession,
and upon being informed by the peace officer that they are acting at the
request of the owner, the owner’s agent, or the person in lawful possession, or
(2) the owner, the owner’s agent, or the person in lawful possession. . . .”
       Section 602, subdivision (o)(1) further provides, “[T]his subdivision does
not apply to persons engaged in lawful labor union activities that are
permitted to be carried out on the property by the Alatorre–Zenovich–
Dunlap–Berman Agricultural Labor Relations Act of 1975 . . . or by the
federal National Labor Relations Act.” (§ 602, subd. (o)(1).) According to
defendant, this language authorizes discrimination based on speech since it
protects individuals engaged in trespassing for the purpose of engaging in
labor-related expressive activity while subjecting those engaged in other
types of expressive activity (such as animal rights activity) to criminal
liability.
       As the People note, however, defendant fails to acknowledge other
language in section 602, subdivision (o) expressly stating, “[T]his subdivision
does not apply to persons on the premises who are engaging in activities
protected by the California or United States Constitution . . . .” (§ 602, subd.
(o)(1), italics added.)
       Based on this italicized language, which specifically excludes from the
scope of the statute persons engaged in protected activities, we are at a loss



                                       36
as to how section 602, subdivision (o) could be applied in a manner that
would infringe upon a person’s constitutional rights. Nor does defendant
offer any such explanation. As such, his challenge fails.
                                   DISPOSITION
      The judgment of conviction as to counts 1 and 4 is reversed. The
matter is remanded for further proceedings consistent with this opinion,
which may include retrial on these counts. In all other regards, the judgment
is affirmed.



                                             Jackson, P. J.

WE CONCUR:

Simons, J.
Burns, J.




A169697/People v. Wayne Hansen Hsiung




                                        37
A169697/People v. Wayne Hansen Hsiung

Trial Court:     Superior Court of the County of Sonoma

Trial Judge:     Laura Passaglia

Counsel:         Justin F. Marceau for Defendant and Appellant.

                 Law Office of Colleen Flynn and Colleen Flynn for
                     Animal Justice as Amicus Curiae for Defendant and
                     Appellant.

                 Law Office of Kevin G. Little and Kevin Gerard Little for
                     Professor Jens Bülte as Amicus Curiae for
                     Defendant and Appellant.

                 Law Office of Shakeer Rahman and Shakeer Rahman;
                     Shaila Nathu; Shayana Kadidal and Jess Vosburgh
                     for Center for Constitutional Rights, American Civil
                     Liberties Foundation of Northern California, and
                     National Lawyers Guild as Amici Curiae for
                     Defendant and Appellant.

                 Summa and Megan A. Maitia for Climate Defense Project
                    as Amicus Curiae for Defendant and Appellant.

                 Matthew Liebman for Law Professors Matthew Liebman,
                     Randall S. Abate, Zsea Bowmani, Taimie L. Bryant,
                     David N. Cassuto, Luis E. Chiesa, Rebecca Critser,
                     David A. Dana, Michael C. Dorf, Pamela D. Frasch,
                     Iselin M. Gambert, Kathy Hessler, Heidi M. Hurd,
                     Paul A. Locke, Janice Nadler, Martha C. Nussbaum,
                     Fran Ortiz, Jessica Rubin, Joan Schaffner, Sarah
                     Schindler, Vanessa Shakib, Laurence H. Tribe,
                     Bruce Wagman, and Delcianna J. Winders as Amici
                     Curiae for Defendant and Appellant.

                 Christopher Berry for Nonhuman Rights Project, Inc., as
                      Amicus Curiae for Defendant and Appellant.




                                   38
Advancing Law for Animals and Vanessa Shakib for
    Professor Kristen Stilt as Amicus Curiae for
    Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters and
    Jeffrey M. Laurence, Assistant Attorneys General,
    Bridget Billeter and Kelly A. Styger, Deputy
    Attorneys General, for Plaintiff and Respondent.




                 39