Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. No. F05907299-2. W. Kent Hamlin, Judge.
Dale Dombkowski, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HARRIS, Acting P.J.
INTRODUCTION
Appellant Rex Allen Spaith, Jr., a disbarred attorney, was charged with one count of felony unauthorized practice of law, based on work he did for Robert Espinosa in a civil lawsuit. Espinosa was the only prosecution witness. Appellant represented himself in the criminal trial and was the only defense witness. He was convicted as charged and placed on probation. On appeal, appellant contends the court should have given his requested instruction on mistake of law, and erroneously instructed the jury on mistake of fact, such that his defenses were not presented to the jury. We will affirm.
STATEMENT OF THE CASE
On April 7, 2006, an information was filed in the Superior Court of Fresno County charging appellant with count I, felony unauthorized practice of law from September 1, 2004 to October 31, 2005 (Bus. & Prof. Code, § 6126, subd. (b)). Appellant pleaded not guilty. The court granted appellant’s motion to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806.
All further statutory references are to the Business and Professions Code unless otherwise indicated.
On August 28, 2006, appellant’s jury trial began. On September 1, 2006, the jury found appellant guilty. On November 13, 2006, the court suspended imposition of sentence for three years and placed appellant on formal probation on specific terms and conditions, including service of 30 days in the Adult Offender Work Program in lieu of jail, performance of 250 hours of community service, a restitution fine of $200 (Pen. Code, § 1202.4, subd. (b)), and victim restitution of $3,097 (Pen. Code, § 1202.4, subd. (f)).
On November 13, 2006, appellant filed a timely notice of appeal.
FACTS
Appellant was an attorney practicing in Sonora, and handled civil litigation and plaintiff’s personal injury cases. On January 8, 1997, after practicing for 20 years, he was disbarred and thereafter not readmitted to practice. After his disbarment, appellant moved to the mountains to start a new life as a landscape photographer.
Robert Espinosa was a machinist. He had a shop in Sanger and also worked on an hourly basis for Fiore Di Pasta company. He became involved in a dispute with the company when it allegedly refused to pay him for his work on a machine which cut frozen pasta. It was the first lawsuit Espinosa had been involved in, he did not have any legal training, and he was representing himself. Espinosa testified he did not have any idea how the law pertained to his case. He did not own a typewriter or a computer with word processing. Espinosa hired a paralegal, Irma Mendez, to file an answer and cross-complaint against Fiore Di Pasta. Mendez also prepared and served responses to numerous discovery requests on Espinosa’s behalf. Espinosa paid Mendez over $2,000. In approximately September 2004, Espinosa fired Mendez.
In late October or November 2004, Espinosa met appellant at a crafts fair and told him about the lawsuit, and that he did not have anyone typing his documents. Appellant gave Espinosa his telephone number and said to give him a call. Espinosa subsequently called appellant and went to his house, brought over the legal documents from the Fiore Di Pasta case, and they talked about the matter.
Espinosa testified he hired appellant “as a paralegal,” “for a paralegal service,” and to type his documents. Espinosa did not sign a contract with appellant but agreed to pay him $25 per hour “[f]or the work that he did.” Appellant did not tell Espinosa that he would give legal advice or make court appearances. Espinosa did not know that appellant had been an attorney, that he was disbarred, or that he had not been reinstated to practice in California.
It was stipulated to the jury that a paralegal is statutorily defined as a person “who either contracts with or is employed by an attorney, law firm, corporation, governmental agency or other entity, and who performs substantial legal work under the direction and supervision of an active member of the State Bar of California ....”
Espinosa testified he had numerous meetings with appellant, either at appellant’s house or Espinosa’s shop. An attorney was not present for any of the meetings. At these meetings, appellant presented Espinosa with typed summaries of their prior discussions about the lawsuit, they reviewed the pending discovery requests that had been served on Espinosa, and Espinosa would share his ideas with appellant about what he wanted to do. Espinosa testified that he had a hard time reading, and when he received legal documents in the Fiore Di Pasta litigation, he would take the documents to appellant, who would read them to him. Appellant “would explain to me what the paper was in front of me, I would read it, then he would explain to me what we had to do to respond, and then I would do the work and have him type up the necessary paperwork to do the—to do the motions or whatever we needed to do.” Since Espinosa did not own a typewriter or word processor, he prepared documents in his own handwriting. Espinosa testified he would “do the work” on a motion, appellant “would check it over, and if there was anything that I wanted corrected, he would correct it, type it up, and then we’d file it.”
Espinosa testified appellant “went back through everything” about the Fiore Di Pasta litigation and realized the first paralegal, Mendez, made mistakes in the cross-complaint and failed to include the corporation as a party. Espinosa testified that appellant’s “paralegal service” typed up the documents to correct the mistake in the cross-complaint. “Well, he, being the paralegal, the service that I had hired him for. I hired him as a paralegal service.” Espinosa testified appellant did not have any employees, and appellant typed and filed all the documents for Espinosa.
Espinosa reviewed a letter dated November 16, 2004, from him to the attorney for Fiore Di Pasta. In the letter, Espinosa stated he would “‘unleash’” his paralegal, “Junk Yard Dog Paralegal Service,” to “‘prepare necessary forms to bring the matter before the court.’” Espinosa testified the letter meant he was going to have appellant “type up the forms that I was gonna direct him to type up for me” to get the case resolved. Espinosa relied on appellant “to explain things to me as far as how we go about resolving these issues.” The letter made another reference to “‘unleashing your dog,’” again referring to appellant’s Junk Yard Dog Paralegal Service. Espinosa testified, “I was gonna have him prepare more letters to the Judge so we could get this resolved.”
Espinosa testified about how the numerous documents filed on his behalf in the civil case were prepared. Espinosa testified appellant “would explain things to me” about a “discovery plan” and tell him how to fill out the documents, and Espinosa was able to develop the discovery plan “[w]ith the explanations [appellant] was able to give to me.” Espinosa testified he sent three sets of form and special interrogatories to the company because appellant “explained to me” that “they had different applications to the questions that we were asking” and “he gave me the options of how many we wanted.”
Espinosa acknowledged that on January 18, 2005, he signed a declaration to amend the cross-complaint, which stated: “‘I have and still have no idea about the law, generally, nor have I pertaining to my case. All of the legal concepts seem to be swirling above my head confusing me and giving me headaches.’” Despite this declaration, however, Espinosa testified appellant brought him “up to speed on a lot of things” during their numerous meetings, so that Espinosa could tell him what he wanted to do about discovery and other motions. Appellant would “explain things to me, explain what my options were.”
Espinosa testified that he served form interrogatories on Fiore Di Pasta in 2004 and 2005, and that appellant gave him the documents and explained which boxes to check. Appellant “was explaining to me these documents and what relevance they had, and it was my choice as to what we wanted to get from these documents, from the other party.” Appellant explained the legal process and “how to go about it.”
Espinosa testified the form interrogatories were sent because “we were having a lot of problems getting documents back from Fiore Di Pasta, so we were asking them to respond to these.”
“Q. ... Did ... somebody tell you that form interrogatory document would help you get forms from Fiore Di Pasta?
“A. This was the document explained to me.
“Q. By who?
“A. By [appellant]. And the decision to use that was mine, just like in all the other documents.”
Espinosa testified about several discovery documents which contained multiple demands for production, and were served on successive days in January 2005. One document, dated January 5, 2005, contained 35 demands for production and inspection of documents. Espinosa testified he served the demands because “we couldn’t get any information from Fiore Di Pasta.” “[A]s we were building our case, [appellant] was explaining things to me as we went, and this, to me, was the document I chose for this particular action.” Espinosa testified he outlined the questions “that we needed,” appellant typed the document, and Espinosa proofread it.
“Q. Did you actually determine what the sentence structure of each of those 35 demands would be or did [appellant]?
“A. No, the—the structure was a collaboration. I mean, he would advise me as to how—not advise me, but explain to me what the document was and how it had to be prepared.”
Espinosa acknowledged that another document, dated January 6, 2005, contained 50 demands for production, that he “approved” all demands, and appellant typed the document. Yet another document, dated January 13, 2005, contained 28 demands for production. Espinosa testified he “outlined the questions,” appellant typed up the relevant document, Espinosa read and approved it, and appellant served it on Fiore Di Pasta. Espinosa testified the multiple demands were sent because “they still didn’t produce any documents.”
“Q. How did you know what questions to ask?
“A. These are the requests for productions. Those are the things that we needed for the case; all the pertinent information, copies … of paperwork that we needed to build our case.”
Espinosa testified about numerous other documents filed on his behalf in the civil case, including requests for admissions, inspection of documents, deposition notices, declarations, and points and authorities. Espinosa testified he outlined the questions or issues, appellant typed them, Espinosa proofread the documents and signed them, and appellant filed them. Appellant was “advising me on—or helping me with these documents.” Appellant would do the research, and “then he would come and explain them to me, and then I would have to make the decision as to what we were gonna do.”
Espinosa testified he had never propounded discovery in a civil lawsuit but appellant explained the procedures to him.
“Q. ... Why so many?
“A. We were asking questions and we couldn’t get any response, so we had to continually press these people for the answers that we wanted for the documents and things that we needed to build our case which we got very few in return.
“Q. You keep using the term ‘we.’ ‘We’ needed to build our case. Are you referring to you and [appellant]?
“A. Yes.”
Espinosa acknowledged he did not have any civil litigation experience but he had “some pretty good common sense.”
“Q. ... [W]hen you said ‘we,’ it meant you with [appellant’s] assistance.
“A. Right.
“Q. Am I incorrect about that?
“A. I hired [appellant] as—for paralegal.”
Espinosa testified that deposition notices were served on the individuals who operated Fiore Di Pasta, and he asked the court if appellant of Junk Yard Dog Paralegal Services could take the deposition, but the court said only Espinosa could be present. Espinosa acknowledged that deposition notices were sent to one individual to take his deposition on nearly every day in May 2005, and explained the multiple notices were necessary because that individual was not “forthcoming with any information” as to when he could be made available for the deposition.
Espinosa acknowledged that on May 10, 2005, he appeared before Judge Simpson for a hearing in the Fiore Di Pasta case, and appellant was present in the courtroom to listen to the proceedings. Espinosa admitted that he asked the court for a short break so he could ask his “counsel” to explain what the court had just said, and testified that he mistakenly referred to appellant as his “counsel” instead of his paralegal.
Espinosa testified that on October 14, 2004, he received and paid a bill from appellant, in the name of “Junk Yard Dog Paralegal Services,” for $505.09. Appellant’s bill was for “services rendered,” “thinking about the motion,” “recording his thoughts about the motion,” and preparing a declaration and points and authorities. Espinosa testified he wrote these documents in longhand, appellant would “print them up we’d go back, and I’d look at what was said on the document, and then correct anything that I felt that I wanted the Court to know. [Appellant] would reprint and we would send it down or he’d go down and file it.”
Espinosa identified another invoice from “Junk Yard Dog Paralegal Services,” dated January 24, 2005, for $433.12, which he paid in full. The invoice referred to “[s]ervice by delivery service and signing party,” for appellant to think about motions in view of the facts and law, and “‘select[,] analyze and number exhibits.’” Espinosa explained that “[w]hen we were finished with the documents,” he would go over to appellant’s house, meet with him, and sign the documents. Espinosa testified appellant did the legal research, explained “the process that we had for exhibits,” typed up the relevant document, and Espinosa signed it. “When I refer to ‘we,’ I include [appellant] because he was my assistant. He’s the one that I hired as a paralegal.”
Espinosa reviewed another invoice from appellant, dated March 10, 2005, which showed that Espinosa paid $2,000 on his account with appellant. Espinosa believed he paid appellant $7,000 over the course of the litigation with Fiore Di Pasta.
Espinosa testified appellant never gave him any legal advice or counsel. Espinosa defined “legal advice” as having “an attorney print up the document .... That would be the advice that he would give me on paper.”
“Q. It wouldn’t be discussing … the law with you?
“A. He knows the law. I don’t know the law.
“Q. I understand that. So legal advice would be discussing the law to you—the attorney discussing it with you?
“A. If he would discuss it with me, then he would be discussing the law to me.
“Q. Is that legal advice?
“A. I would say that that would be legal advice.”
Espinosa never did any independent research on his own because he did not have time, and appellant gave him “a variety of information.”
Espinosa testified he had never seen appellant perform as a trial attorney and did not discuss appellant’s trial experience when he hired him. Espinosa did not learn appellant was a disbarred attorney until the attorney for Fiore Di Pasta told Judge Simpson during a hearing in the civil case. Espinosa testified appellant was a very good friend and he still had great respect for him. In October 2005, Espinosa resolved the lawsuit with Fiore Di Pasta.
Defense Evidence
Appellant testified as the only defense witness, and acknowledged he had not practiced law or given any legal advice or counsel since November 16, 1996, and he was disbarred on January 8, 1997. Appellant testified he went through a lot of pressure during “the grinding and unrelenting State Bar process,” and became very depressed. He lost everything, became homeless, and needed psychiatric help.
Appellant testified he never advertised or held himself out as an attorney after the disbarment. Appellant “pulled a plug, mentally” on all of his legal experience, left Sonora, and moved to the mountains to start a new life as a landscape photographer. He “kind of came back around” and his life improved, but he “didn’t need the practice of law” because it was too stressful.
Appellant testified he met Espinosa in late September or early October 2004 at an art show. Espinosa said he needed “some help with his typing.” Appellant had suffered frostbite in his fingers during a lengthy hiking trip and lost part of a finger, and discovered typing was good therapy for his stiff fingers. Appellant had other reasons for agreeing to help Espinosa:
“… Back when I’d practiced law, I’d had summer clerks come up from law school, and they worked for me, research, they’d show me the law, they’d prepare drafts, they’d prepare letters. I’d take a look at them, if I liked them I’d use them. If I wanted to modify them, I’d modify them. These people were just law students. So I reflected back onto that, and I thought, yeah, yeah, I can type letters for Mr. Espinosa.”
Appellant testified that he decided to work for Espinosa in 2004 because he believed his disbarment was completed in 2002. “Now I thought my disbarment was for five years. I thought that in 2002 my disbarment was up. I was mistaken. Actually in 2002 I was entitled to reapply to become an attorney, but in 2002, I didn’t want to practice law.”
“… I thought I was an unregistered attorney. I was mistaken. I was actually still a disbarred attorney, but I didn’t want to practice law in 2004 either because I still had too bad a taste left in my mouth. I was content to just be [Espinosa’s] typist. I was content to make $25 an hour, and then have my time so I could do what was important to me, write my books, do my art ….”
Appellant thought his disbarment attorney told him that the disbarment was only for five years, “and I think I got it twisted around with the fact that after five years of being disbarred, I could reapply” for his license. Appellant conceded, however, that he received a notice from the State Bar stating that, as of January 8, 1997, he could not practice law anymore.
Appellant testified Espinosa wanted him to do two kinds of things in the lawsuit: conduct discovery and respond to Fiore Di Pasta’s motions. After their first meeting, appellant typed his notes and created a 17-page fact letter. At their next meeting, Espinosa reviewed the letter and “he came up with these ideas” about discovery demands. Appellant claimed Espinosa already knew about form and special interrogatories, demands for production, and requests for admissions, because he already received such things from Fiore Di Pasta.
Appellant testified Espinosa’s discovery requests were long and numerous because appellant “had never seen so many individual facets that needed to be explored in all the cases I’d ever had.” Espinosa wanted more and more answers from Fiore Di Pasta, so appellant “cranked out” more discovery demands. Appellant had never been involved “in litigation where there was that many before, but it was actually pretty easy to do these documents. Once you have the template for a demand for production, all you do is just copy it, paste it into a new file, change who the responding party is, change the date they’re supposed to respond, and then you go over to ... your big long list of all the different things, and you just copy and paste those—those in. It was really pretty simple.” Appellant repeated the process for the multiple discovery demands Espinosa served on Fiore Di Pasta.
At the sentencing hearing in this case, the prosecutor advised the court that Espinosa was sanctioned $3,097 for the belligerent nature of the discovery requests during the Fiore Di Pasta litigation. The court ordered appellant to pay that amount to Espinosa as victim restitution.
Appellant testified Espinosa regularly brought over the documents he received in the Fiore Di Pasta litigation. Appellant read the documents to understand what they were about, and then explained them to Espinosa since the contents “just went right over” his head. Appellant asked Espinosa for his input, wrote down Espinosa’s thoughts, and asked Espinosa “real specific” questions “cause a lot of times they’d involve factual disputes.” Appellant conceded Espinosa did not dictate “every single word” or “give me the sentence structure,” but Espinosa gave him “the general idea” about how to respond. Appellant admitted he “composed the actual sentences, but they were his thoughts, and I typed them. I typed them all.” Appellant did all the typing because Espinosa did not have a computer or typewriter. Appellant did so much that he burned out one printer and had to get another one.
Appellant admitted he went to the law library, looked up some law, copied documents and code sections, and used points and authorities from the “Matthew Bender” form books to prepare the documents for Espinosa. Appellant claimed he never told Espinosa to “use this or use that” document since he thought he was an unregistered attorney, and believed an unregistered attorney could not give legal advice or make court appearances. Appellant simply presented Espinosa with options, let him make the decision, and typed up what Espinosa wanted. Appellant admitted he usually read the legal documents to Espinosa because Espinosa could not understand them, and he did all the legal research for Espinosa. Appellant also admitted he explained all the legal terms to Espinosa because he did not understand the terms.
Appellant admitted that he held himself out as a paralegal, and previously called his business, “Rex Spaith Paralegal.” He later had a business card, stationary, and address labels printed for “‘Junk Yard Dog Paralegal Service,’” because he thought it was a pretty good name. Appellant admitted that he “did the work of a paralegal” during the Fiore Di Pasta litigation, and Espinosa was his only client.
Appellant knew Espinosa was not admitted to the State Bar, but testified that he believed Espinosa was an “attorney” because Espinosa represented himself in the Fiore Di Pasta civil litigation. “[B]ecause I thought he was an attorney, I thought it was okay for me to work for him as a paralegal ....”
Appellant testified that two women in the Fresno County Superior Court clerk’s office told him that if “you’re an in pro per, you’re your own attorney.”
“... I thought that based on what Mr. Espinosa had told me and what the two clerks had told me that it was reasonable to assume that I could, in fact, work for Mr. Espinosa as his paralegal, and I never thought that it was necessary to doubt what he had said or what they had said, and go out and conduct some research. What I did for Mr. Espinosa did not amount to practicing law.”
On cross-examination, the prosecutor asked appellant if he had read section 6450, subdivision (a), which stated that a paralegal could only work under the direction and supervision of an active member of the State Bar. Appellant testified that he only read subdivision (b) of that section, which stated the tasks paralegals could do, he may have discussed subdivision (c), about the requirements to be a paralegal, but he never read subdivision (a). Appellant once told Espinosa that he had done numerous trials and personal injury cases as an attorney. However, appellant did not tell Espinosa that he had been an attorney until the latter part of 2004, and did not tell him that he had been disbarred.
Evidentiary and Instructional Motions
Appellant was charged with one felony count of the unauthorized practice of law in violation of section 6126, subdivision (b), in that he “did unlawfully practice law or attempt to practice law, after having been disbarred from the State Bar.” On appeal, appellant argues the court had a sua sponte duty to instruct on mistake of law as a defense to the attempted unauthorized practice of law, and the mistake of fact instruction that was actually given was incorrect. As noted ante, appellant represented himself in the criminal trial. In order to address his appellate claims, we must review the lengthy discussions between the court and the parties about the nature of the charged offense and the instructional issues.
Appellant was charged with violating section 6126, subdivision (b), which states:
“Any person who has been involuntary enrolled as an inactive member of the State Bar, or has been suspended from membership from the State Bar, or has been disbarred, or has resigned from the State Bar with charges pending, and thereafter practices or attempts to practice law, advertises or holds himself or herself out as practicing or otherwise entitled to practice law, is guilty of a crime punishable by imprisonment in the state prison or a county jail ....” (Italics added.)
As noted ante, section 6450, subdivision (a) defines a paralegal as:
“[A] person who holds himself or herself out to be a paralegal, who is qualified by education, training, or work experience, who either contracts with or is employed by an attorney, law firm, corporation, governmental agency, or other entity, and who performs substantial legal work under the direction and supervision of an active member of the State Bar of California, as defined in Section 6060, or an attorney practicing law in the federal courts of this state, that has been specifically delegated by the attorney to him or her.” (Italics added.)
Section 6060 states the requirements for being licensed to practice in the State of California, which include the receipt of a legal degree and passing the bar examination.
The parties filed numerous pretrial motions as to the appropriate instructions which should be given for the charged offense, and the court held lengthy hearings outside of the jury’s presence to resolve these issues. On the first day of trial, the prosecutor argued that the unlawful practice of law, in violation of section 6126, subdivision (b), was a strict liability offense, and the jury should be instructed accordingly. The trial court rejected that argument, reviewed the statutory language, and noted that section 6126, subdivision (b) contained two theories: (1) the unlawful practice of law, which would be a general intent theory, and (2) the attempted unlawful practice of law, which would be a specific intent theory, that a person “specifically intended to commit those acts which would constitute a violation of the statute,” and specifically intended to practice law without a license. Appellant asked the court to clarify the mens rea element, and the court replied the requisite mental state “would be that the Defendant willfully committed the acts which constituted a practice of law, or he willfully committed the acts which constituted an attempt to practice law with the specific intent that he, in fact, practiced law.”
The court turned to the issue of whether the documents in the civil litigation were admissible, and appellant advised the court that his defense was that he just typed up what Espinosa wanted in the documents. The court decided the reasons for appellant’s disbarment were not relevant, and the parties agreed to stipulate to the fact of the disbarment.
The court next considered the admissibility of evidence that appellant operated as Junk Yard Dog Paralegal Services. The court believed appellant could not argue he was validly operating as a paralegal, because there was no evidence that appellant was acting under the supervision of a licensed attorney. “[T]o try to argue somehow that he is a paralegal when he’s never acting under the supervision and direction of another lawyer, to me, is confusing and misleading.” The court advised appellant that he could not made any comments in his opening statement that he was operating as a paralegal.
However, the court acknowledged that if appellant testified that he thought his actions were those of a paralegal, it could be a defense “to the specific intent requirement of the attempt element of the crime; that is, I did not intend to violate the law, I thought I was in this safe harbor of acting as a paralegal, then I think the jury has to hear all of the language of the statute defining a paralegal.” In such a situation, it would be relevant for the jury to hear whether appellant acted under the direction of a licensed attorney. The court thought appellant would likely argue that “he did nothing more than act as a scrivener,” but the jury should hear the statutory definition of a paralegal. The court continued:
“So I guess I’m looking for direction as to how we can strike a balance between allowing [appellant] to argue to the jury that his actions did not constitute the practice of law, but on the other hand prohibiting him from somehow setting up a presumed legal safe harbor for the jury, that, [m]y actions were those of a paralegal, and then asking the jury to decide that there’s some distinction between the acts of a lawyer and those of a paralegal, when in fact he can’t assert paralegal status cause he’s never represented by—or is never acting under the supervision of an attorney. I find that to be a perplexing legal question as to where we draw that line between him arguing that his acts are not those of a lawyer on the one hand, and him arguing on the other hand that his acts are those of a paralegal, without further defining what a paralegal is ....”
Appellant advised the court that he intended to rely on a mistake of fact defense:
“[M]y evidence is going to be, I thought Mr. Espinosa, since he was in pro per [sic], was his own attorney, and, therefore, I was allowed to work for him as a paralegal.”
The court replied that the paralegal statute required a paralegal to work under the direction and supervision of an active member of the State bar, “not under the direction and supervision of an attorney. And so I don’t see how … I could allow you to assert you thought you were in a safe harbor here, acting under the supervision of an active member of the State Bar of California, and that, I think, is the problem with your argument.”
After a brief recess, the court found a person could violate section 6126, subdivision (b), by practicing law without a license, which requires general intent to commit the acts which constitute the practice of law, or attempting to practice law without a license, which requires specific intent to violate the section. The issue of whether appellant thought he was acting as a paralegal was “relevant to the question of whether he specifically intended to violate the section,” and not to whether his conduct constituted the practice of law. The court found that if appellant introduced evidence that he “believed himself to be a paralegal,” such evidence did not raise the mistake of fact defense. Instead, it raised mistake of law as “a defense to the specific intent crime if the jurors then, because of that, had a reasonable doubt whether he attempted to violate the section with the intent to do so.”
The court turned to whether the attempt theory should be presented to the jury:
“... [T]he jurors are either gonna find that his conduct constituted a completed act of practicing law without a license or they’re not, and I really think this attempt thing is only created because the People have alleged the crimes in the alternative and the statute alleges it in the alternative. But as far as I can tell from my review of the briefs that I’ve read to this point, the People aren’t really gonna point to anything in this case as being an unsuccessful attempt to practice law, they’re gonna argue that his conduct in fact was a completed act of practicing law.” (Italics added.)
The court and the parties next addressed the instructional definition of practicing law, then appellant returned to the attempt theory and specific intent, and asked the court to explain the terms. The court explained that appellant’s failure to understand what was prohibited by the statute would raise a mistake of law defense, but mistake of law was not a defense to a general intent crime. The court would not permit appellant to raise a mistake of law defense to the specific intent element of the attempt theory because “I don’t see how the Legislature could possibly have allowed for that possibility; that they would find somebody unfit to practice law, but then they would give them the ability to subjectively define when they were not practicing law.”
“… Here the State Bar has said, You may not practice law, but by your definition you should be allowed to come into court and say that, I didn’t know this was a practice of law. Well, the State Bar has already decided you can’t make legal decisions like that, so to allow you to assert that as a defense in this case is, I think, not consistent with general laws regarding criminal practice, that being that one need not intent to break the law, one need only to intend to commit the acts which are defined by the Legislature to constitute a violation of law.”
The court found: “I think to allow you to further assert that you didn’t know it was a crime to do what you did, and you thought what you did wasn’t the practice of law, I think turns the statute on its head.”
The court again found the statute set forth two separate theories—the unlawful practice of law, and the attempted unlawful practice of law—and the theories had different mental states, so that the court would draft a special instruction which clarified these matters, so appellant could raise a defense claim of mistake.
“… And I’ve got to lay that out as two separate theories whereby you ... if you wish, to argue that you didn’t intend to violate any law, and argue to the jury that you could not be found guilty, then, of this crime of attempting to violate the section, and that the only way you could be found guilty is if, in fact, your acts constituted a violation of the section and a practice of the law. But I think to allow you to further assert that you didn’t know it was a crime to do what you did, and you thought what you did wasn’t the practice of law, I think turns the statute on its head.”
The court turned to the other evidentiary motions, and again noted that the jury had to decide whether appellant’s conduct “constitutes the unauthorized practice of law or an attempt to practice law in violation of the section.” The court recommended that the prosecutor strike the attempt theory to simplify the evidence in the case, and the prosecutor replied that he would let the court know about such a possibility.
As the court continued the review of the evidentiary motions, the prosecutor clarified that he would not only show appellant was “practicing law on behalf of Mr. Espinosa, but that he was doing a poor job of it,” based on the discovery abuses in the civil case. Appellant replied that such an argument supported the attempt theory, it should not be stricken from the allegations, and appellant would object if it was stricken. The court replied that whether appellant did a “lousy job” was not the relevant issue, but the question was whether appellant’s acts were the unauthorized practice or attempted unauthorized practice of law. The court adjourned for the day.
The next day, the court advised the parties that it had drafted instructions about the two theories which could support the charged offense, and “as long as the jurors agree either that he, in fact, practiced willfully or attempted to practice with the specific intent to do so without a license, then the jurors could reach unanimous agreement under either theory, and they need not all agree on which theory.” The court would also instruct on general and specific intent. As to attempt, the question was whether appellant acted with the specific intent to practice without a license. The court anticipated appellant would raise the defense that he did not intend to practice law, that he stayed “on the right side of that line” and did nothing more than provide clerical services. “... I don’t see how in good faith [appellant] could raise the defense that he thought he was acting under the direction or the immediate supervision of a licensed member of the State Bar.”
The prosecutor asked if appellant would stipulate to the statutory definition of a paralegal. Appellant declined to stipulate, and the court decided to instruct the jury on the statutory definition of a paralegal, particularly that a paralegal had to act under the supervision of a licensed attorney, since appellant was going to claim that he acted as a paralegal. “[S]ince there won’t be any evidence that he was acting under the direction or supervision of an active member of the Bar and an attorney practicing law in the courts of this State, he can’t claim he was a paralegal at that time.”
Thereafter, appellant’s trial began with Espinosa as the only prosecution witness. It was stipulated that appellant was disbarred and not reinstated as a lawyer. In the course of Espinosa’s testimony, the court advised the jury that it had taken judicial notice of section 6450 and read the statutory definition of a paralegal.
At one point during Espinosa’s testimony, the court and the parties again discussed whether the prosecution could introduce the reason for appellant’s disbarment. The court believed appellant was going to testify that he did not know he was permanently disbarred, and the reason for the disbarment might be relevant if appellant’s claim “is gonna be a mistake of fact as to whether he’s disbarred.” Appellant stated that he was going to testify that he thought the disbarment was for five years and he was an unregistered attorney when he worked for Espinosa, and he would not claim any belief that he was a licensed attorney at that time. The court asked whether appellant’s request for a mistake of fact instruction was based on the claim that “I did not know I was disbarred during this period of time.” Appellant replied:
“No. Actually, Your Honor, the mistake of fact instruction had to do with my mistaken belief that Mr. Espinosa was an attorney, and that would have allowed me to be his paralegal.”
The court denied the prosecutor’s request to introduce the reason for appellant’s disbarment, unless appellant claimed that he believed he was not disbarred when he worked for Espinosa.
During a break in appellant’s testimony, the parties extensively argued as to the appropriate instructional language defining the two theories and the applicable mental states. Appellant intended to argue that his conduct was not the unauthorized practice of law, primarily because he was simply Espinosa’s typist and did not give legal opinions.
During another recess in appellant’s testimony, the prosecutor again moved to introduce appellant’s disbarment record. Appellant argued the evidence was not relevant because he had just testified that he erroneously thought his disbarment ended in 2002, he was an unregistered attorney, and he had no desire to practice law when he was working for Espinosa. The court replied such evidence was relevant as to appellant’s purported mistake of fact defense that he reasonably believed he was only disbarred for five years and that he was an unregistered attorney when he worked for Espinosa.
“... I think the point here is that it’s not fair for you to argue that you thought you could behave as a paralegal because you fall into some class of persons that could otherwise practice law except for having not been reinstated or applied to the Bar for that purpose, and that you were in some kind of a, you know, quasi-licensed status, which I think is what the jurors believe to this point.”
The court believed the “inactive attorney” argument was relevant to refute the specific intent element of attempt. Thereafter, the parties had a lengthy argument as to the instructional language which defined “practicing law,” but the court did not permit any evidence on the reason for appellant’s disbarment.
After both sides rested, the court conducted another instructional conference and stated that it would instruct that the unauthorized practice of law was a general intent theory, attempted unauthorized practice required specific intent, and define general and specific intent. The court declined to give the prosecution’s requested instruction on strict liability and explained:
“[T]he People can freely argue that if they find a completed act of practicing law, then the question of whether [appellant] intended to break the law is not relevant to their decision. The question is simply did he willfully do the acts which constituted a violation of the law, and [appellant] you may argue that, [t]here’s nothing I did that was that constituted practicing law, and to the extent you think I may have tried to, or attempted to, I never intended to break any law or practice law. And so that gives each of you your ability to argue your theories of the case.”
The court was still struggling with appellant’s request for a mistake of fact instruction, that appellant thought Espinosa was a lawyer and he could work for him as a paralegal. The prosecution objected to such language. The court agreed: “I think that’s a mistake in law. The mistake of fact would be that you had the right, as a disbarred attorney, to perform some functions.” The court intended to keep working on the instructional language.
After another recess, the court again returned to the mistake instruction, and clarified that it was a mistake of fact if appellant reasonably believed he was not disbarred. The court noted appellant’s position was that he reasonably believed Espinosa was acting as his own attorney and appellant could act as a paralegal, and that was a mistake of law.
“It’s misinterpreting or misunderstanding the sections that permit paralegal practice and create a safe harbor for it. So I’m gonna let you argue that you thought Mr. Espinosa was licensed to practice, if you want to argue that, otherwise I’ll withdraw the instruction, and not give it, if you prefer.”
Appellant said he wanted to argue that theory.
Jury Instructions
The court instructed the jury that appellant was charged with the unauthorized practice of law under two theories—that appellant practiced law, and that appellant attempted to practice law—and each theory had different requirements. The jury was instructed that the first theory was that “he engaged in the practice of law,” which required the People to prove appellant was disbarred, he thereafter practiced law, and he willfully committed the acts that constitute the practice of law. This instruction also defined the term “practice of law” as “the doing and performing of services” in any matter pending in the court, and “giving legal advice and legal counsel, and the preparation of legal instruments and documents by which legal rights are secured.”
The jury was instructed as to the second theory that appellant “attempted to engage in the practice of law,” which required the People to prove appellant was disbarred, he thereafter attempted to practice law, and he did so with the specific intent to practice law without a license. The jury was further instructed that an attempt was a direct but ineffective step toward practicing law and appellant intended to practice law without a license.
The jury was also instructed that the first theory, that appellant actually practiced law, required general criminal intent, and the attempt theory required the specific intent to practice law without a license. The instruction defined general and specific intent.
As to the two theories, the jury was further instructed that it could not find appellant guilty of the charged offense unless all jurors agreed the People proved appellant committed the unauthorized practice of law under at least one theory. “But all of you do not have to agree on the same theory.”
The court did not give any instructions on mistake of law, but gave a modified version of CALCRIM No. 3406 on mistake of fact:
“The defendant is not guilty of the unauthorized practice of law if he did not have the intent required to commit the crime because he reasonably did not know a fact or reasonably and mistakenly believed a fact.
“If the defendant’s conduct would have been lawful under the facts as he reasonably believed them to be, he did not commit unauthorized practice of law under a theory of an attempt to practice law without a valid license.
“If you find that the defendant believed that Mr. Espinosa was an attorney licensed to practice law in the State of California and if you find that belief was reasonable, he did not have the specific intent required for unauthorized practice of law under a theory of an attempt to practice law without a valid license.
“If you have a reasonable doubt about whether the defendant had the specific intent required for unauthorized practice of law under a theory of an attempt to practice law without a valid license, you must not find him guilty of that crime under that theory.”
Closing Arguments
In closing argument, the prosecutor noted there were two theories of criminal culpability—the unlawful practice and the attempted unlawful practice of law—and the elements were slightly different. The prosecutor argued that both theories depended on the jury’s determination of “what constitutes practice of law.” The prosecutor argued appellant clearly practiced law because he was “driving” Espinosa’s litigation, Espinosa did not have any legal training or knowledge, and appellant gave Espinosa legal counsel about all matters.
The prosecutor argued there was no evidence to support appellant’s claim that he thought his disbarment was only for five years, since the State Bar advised him that he was disbarred without limitation. The prosecutor also noted appellant claimed that he was working for Espinosa as a paralegal, but pointed out that subdivision (a) of the paralegal statute, section 6450, required a paralegal to work under the supervision and direction of a licensed attorney. The prosecutor challenged the credibility of appellant’s claim that he only read subdivisions (b) and (c) of the paralegal statute and did not read subdivision (a). “If he got to B or C, how did he miss A? [Appellant] knew he’s not a paralegal, a legal paralegal.” The prosecutor argued there was “no doubt” appellant “intended to practice law.” While appellant did not appear in court or sign the documents, he was “too clever for that” and instead stood behind Espinosa and handled all legal matters in the civil litigation.
In his closing argument, appellant argued he did not engage in the practice of law because he never signed any documents, appeared in court, or gave legal advice to Espiniosa, he only typed Espinosa’s documents, and he never drafted contracts or any other legal agreements. Appellant argued Espinosa gave credible testimony that he was familiar with discovery materials based on the numerous documents already served on him by Fiore Di Pasta’s attorney. Appellant further argued he went through a terrible time after he was disbarred and never intended to practice law again.
Appellant discussed the two theories for the charged offense, and argued there was no evidence he practiced or attempted to practice law, and that he lacked any intent to practice law when he just typed Espinosa’s documents.
“… I think I told you I didn’t think I was practicing law as I was helping Mr. Espinosa as his paralegal, doing the exact same things that Ms. Mendez [Espinosa’s first paralegal] was doing but for a lot less pay. I think I told you that I did nothing more than what a paralegal does, including making copies of the law, presenting them to my client, letting him decide just like Ms. Mendez did. And I believe I told you that I thought my actions were as a paralegal because I thought Mr. Espinosa was an attorney. I mean, he comes and tells me, Hey, I’m representing myself in pro per, I’m my own attorney. Okay. Fine. Is that a reasonable thought for me to have? Well, as the court instructed you, there is limited evidence that two of the clerks told me the same thing, if you’re in pro per, you are representing yourself as an attorney.”
In rebuttal, the prosecutor argued appellant’s testimony and argument was self-serving, and his conduct in Espinosa’s civil case was clearly the practice law. Appellant was convicted of the charged offense of felony unauthorized practice of law and placed on probation.
DISCUSSION
Appellant contends the court had a sua sponte duty to instruct on mistake of law as a defense to the specific intent theory of attempted unauthorized practice of law. Appellant further contends the court’s instruction on mistake of fact was erroneous because it prevented the jury from considering his mistaken belief that he could serve as Espinosa’s paralegal. As the court’s instructional discussions illustrate, ante, these issues are necessarily related. We will review the nature of the charged offense, the mistake defenses, and whether the jury was properly instructed in this case.
A. Unauthorized Practice of Law
We begin with the underlying nature of the charged offense in this case, the unauthorized practice of law. “The State Bar Act, originally enacted in 1927, is a comprehensive legislative scheme regulating the practice of law. It prohibits the practice of law by anyone who is not an active member of the State Bar. [Citation.]” (J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 965.) Since the passage of this act, the general rule has been that “[w]hile any person may represent himself, and his own interests, at law and in legal proceedings,” no person shall practice law for another unless he or she is an active member of the State Bar. (Abar v. Rogers (1981) 124 Cal.App.3d 862, 865; J.W. v. Superior Court, supra, 17 Cal.App.4th at p. 965.) The prohibition against unauthorized law practice is within the state’s police power and is designed to ensure that those performing legal services do so competently. (Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119, 127 (Birbrower).)
Section 6125 thus states: “No person shall practice law in California unless the person is an active member of the State Bar.” A person who engages in the unauthorized practice of law may be guilty of a misdemeanor or felony (§ 6126), and subject to civil penalties (§ 6126.5), and contempt (§ 6127). A single incident of practicing law without a license constitutes a statutory violation. (People v. Ring (1937) 26 Cal.App.2d Supp. 768, 773; disapproved on other grounds in Birbrower, supra, 17 Cal.4th at p. 129.)
Although the State Bar Act did not define the term “practice of law,” it is “well settled in California that ‘practicing law’ means more than just appearing in court.” (Estate of Condon (1998) 65 Cal.App.4th 1138, 1142; Birbrower, supra, 17 Cal.4th at p. 128.)
“‘… [T]he practice of the law is the doing and performing services in a court of justice in any matter depending therein throughout its various stages and in conformity with the adopted rules of procedure. But in a larger sense it includes legal advice and counsel and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be [pending] in a court.’” (People v. Merchants Protective Corp. (1922) 189 Cal. 531, 535; In re Utz (1989) 48 Cal.3d 468, 483, fn. 11; Birbrower, supra, 17 Cal.4th at p. 128.)
“The cases uniformly hold that the character of the act, and not the place where it is performed, is the decisive element, and if the application of legal knowledge and technique is required, the activity constitutes the practice of law, even if conducted before an administrative board or commission. [Citation.]” (Baron v. City of Los Angeles (1970) 2 Cal.3d 535, 543; Morgan v. State Bar (1990) 51 Cal.3d 598, 603.) “In close cases, the courts have determined that the resolution of legal questions for another by advice and action is practicing law ‘if difficult or doubtful legal questions are involved which, to safeguard the public, reasonably demand the application of a trained legal mind.’ [Citations.]” (Baron v. City of Los Angeles, supra, at p. 543.)
“Legal representation may include making court appearances, giving legal advice, signing legal documents, and evaluating the legal rights of a client. [Citation.]” (In re Carlos (Bankr. C.D.Cal. 1998) 227 B.R. 535, 538 [interpreting § 6126].) The practice of law includes the solicitation of information which is then translated into completed bankruptcy forms, and advising a debtor of the availability of particular exemptions or choosing those exemptions. (In re Reynoso (9th Cir. 2007) 477 F.3d 1117, 1125-1126 [interpreting California law].) Thus, a non-lawyer engages in the unauthorized practice of law when he or she determines for a party the kind of legal document necessary in order to effect the party’s purpose. (In re Powell (Bkrtcy. N.D.Cal. 2001) 266 B.R. 450, 452 [interpreting California law].) The giving of legal advice for a fee constitutes the practice of law, and no one may receive compensation for services as an attorney unless a member of the State Bar. (People v. Sipper (1943) 61 Cal.App.2d Supp. 844, 846 (Sipper), disapproved on other grounds in Murgia v. Municipal Court (1975) 15 Cal.3d 286, 301, fn. 11); Birbrower, supra, 17 Cal.4th at p. 137.)
Whether one is engaged in the practice of law or is merely a legal scrivener has long been settled under California Law. In Sipper, a real estate broker was convicted of the unauthorized practice of law because he advised a husband and wife as to the kind of legal document they should execute to secure a loan. (Sipper, supra, 61 Cal.App.2d Supp. at pp. 845-846.) Sipper held the broker’s actions constituted the practice of law:
“If defendant had only been called upon to perform and had only undertaken to perform the clerical service of filling in the blanks on a particular form in accordance with information furnished him by the parties, or had merely acted as a scrivener to record the stated agreement of the parties to the transaction, he would not have been guilty of practicing law without a license. [Citations.] But the record supports the conclusion that he went further—that he determined for the parties the kind of a legal document they should execute in order to effectuate their purpose. This constituted the practice of law. [Citations.]” (Sipper, supra, 61 Cal.App.2d Supp. at pp. 846-847.)
In People v. Landlords Professional Services, Inc. (1986) 178 Cal.App.3d 68, the defendant filled out Judicial Council forms for unlawful detainer actions on behalf of landlords, filed the forms with the court, and served these pleadings on tenants. In performing these tasks, defendant conducted interviews with “clients,” elicited information during the interviews and, based upon the responses in the interviews, selected and prepared the appropriate forms. (Id. at pp. 69-70.) The court affirmed issuance of a preliminary injunction under section 6126 and rejected the defendant’s argument that such activities did not constitute the practice of law.
A related issue in this case is the statutory definition of a paralegal. Section 6450, subdivision (a) defines a paralegal as:
“[A] person who holds himself or herself out to be a paralegal, who is qualified by education, training, or work experience, who either contracts with or is employed by an attorney, law firm, corporation, governmental agency, or other entity, and who performs substantial legal work under the direction and supervision of an active member of the State Bar of California ....” (Italics added.)
Section 6450, subdivision (a) also defines the tasks performed by a paralegal to “include, but are not limited to, case planning, development, and management; legal research; interviewing clients; fact gathering and retrieving information; drafting and analyzing legal documents; collecting, compiling, and utilizing technical information to make an independent decision and recommendation to the supervising attorney; and representing clients before a state or federal administrative agency if that representation is permitted by statute, court rule, or administrative rule or regulation.”
Section 6450, subdivision (b) states that notwithstanding subdivision (a), a paralegal cannot provide legal advice, represent a client in court, or engage in conduct that constitutes the unauthorized practice of law. (§ 6450, subd. (b)(1), (2), (5).) In addition, a paralegal cannot “[c]ontract with, or be employed by, a natural person other than an attorney to perform paralegal services.” (§ 6450, subd. (b)(6).) A paralegal cannot “[s]elect, explain, draft, or recommend the use of any legal document to or for any person other than the attorney who directs and supervises the paralegal.” (§ 6450, subd. (b)(3).) A paralegal cannot “[e]stablish the fees to charge the client for the services the paralegal performs, which shall be established by the attorney who supervises the paralegal’s work.” (§ 6450, subd. (b)(8).) Section 6450, subdivision (c) states the educational requirements for a paralegal.
It is thus unlawful for a paralegal to perform any services for a consumer except as performed under the direction of an active member of the State Bar. (§§ 6451, 6452.) These concepts were discussed in In re Carlos, supra, 227 B.R. 535, which reviewed the tasks performed by support staff under the direction of a licensed attorney, and whether such acts constitute the practice of law in California:
“There are many tasks in a law firm that a non-attorney may appropriately carry out. Legal secretaries have traditionally performed typing, filing and other clerical functions. Support personnel often conduct ministerial tasks where they interface with the public, with clients or with other counsel, such as the delivery and pickup of papers, and the ordering and picking up of supplies. Paralegals have been used to a great extent in more recent years to do document analysis and control, and a number of other functions that require some training and expertise (but not all of the qualifications of an attorney). [Citation.] In addition, law firms sometimes hire professionals such as economists and accountants to assist in the representation of client interests....
“Such work by non-attorneys in a law firm must be preparatory in nature. It may include research, investigation of details, the assemblage of data or other necessary information, and other work that assists the attorney in carrying out the legal representation of a client. [Citations.] The work must be supervised by an attorney. [Citation.] Furthermore, the work must become or be merged into the work of the attorney, so that it becomes the attorney’s work product. [Citation.] If the work of the non-attorney employee of a law firm stands on its own, such work constitutes the unauthorized practice of law. [Citation.]” (In re Carlos, supra, 227 B.R. at p. 539, italics added.)
B. Section 6126
Appellant was charged with one felony count of the unauthorized practice of law in violation of section 6126, subdivision (b), in that he “did unlawfully practice law or attempt to practice law, after having been disbarred from the State Bar.” Section 6126, subdivision (b) states:
“Any person who has been involuntary enrolled as an inactive member of the State Bar, or has been suspended from membership from the State Bar, or has been disbarred, or has resigned from the State Bar with charges pending, and thereafter practices or attempts to practice law, advertises or holds himself or herself out as practicing or otherwise entitled to practice law, is guilty of a crime punishable by imprisonment in the state prison or a county jail ....” (Italics added.)
Respondent asserts the court should have granted its request to instruct that a violation of section 6126, subdivision (b) was a strict liability offense. However, the trial court herein correctly found that this statute could be violated based upon two theories: the unauthorized practice of law, a general intent theory; and the attempted unauthorized practice of law, a specific intent theory. “When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant’s intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.” (People v. Hood (1969) 1 Cal.3d 444, 456-457; People v. Daniels (1975) 14 Cal.3d 857, 860.)
The court was also correct when it determined the attempt theory required specific intent. An attempt to commit a crime consists of a specific intent to commit the crime, and a direct but ineffectual act done toward its commission, i.e., an overt ineffectual act which is beyond mere preparation yet short of actual commission of the crime. (People v. Imler (1992) 9 Cal.App.4th 1178, 1181; see Pen. Code, § 21a.) An attempt occurs “[w]hen a defendant acts with the requisite specific intent, that is, with the intent to engage in the conduct and/or bring about the consequences proscribed by the attempted crime [citation], and performs an act that ‘go[es] beyond mere preparation ... and ... show[s] that the perpetrator is putting his or her plan into action’ [citation] .…” (People v. Toledo (2001) 26 Cal.4th 221, 230.)
In addition, the court correctly instructed the jury that it could not find appellant guilty of the charged offense “unless all of you agree that the People have proved that the [appellant] committed unauthorized practice of law under at least one theory. But all of you do not have to agree on the same theory.” This instruction is a correct statement of the law. “The jury must agree on a ‘particular crime’ [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed her guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate ‘when conviction on a single count could be based on two or more discrete criminal events,’ but not ‘where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.’ [Citation.]” (People v. Russo (2001) 25 Cal.4th 1124, 1134-1135.) “[T]he jury need not unanimously agree about the theory of guilt since a difference of opinion about theory can only arise from a difference of opinion about what the defendant, mentally or physically, did.” (People v. Davis (1992) 8 Cal.App.4th 28, 41.) Thus, a unanimity instruction “is inappropriate in those cases where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.” (Id. at p. 45.) In the instant case, a unanimity instruction was not appropriate since appellant was charged with one criminal offense, and the jury was correctly instructed as to the alternate theories which could form the basis for a guilty verdict.
C. Mistake of Law and Fact
Appellant asserts the court herein had a sua sponte duty to instruct on mistake of law as a defense, and the mistake of fact instruction that was given was defective. The nature and availability of these defenses depend upon whether a defendant is charged with a general or specific intent offense.
“‘“A mistake of fact” is where a person understands the facts to be other than they are; whereas a “mistake of law” is where a person knows the facts as they really are, but has a mistaken belief as to the legal consequences of those facts.’ [Citations.]” (People v. LaMarr (1942) 20 Cal.2d 705, 710.)
A reasonable mistake of fact is a valid defense to a general intent offense. (People v. Noori (2006) 136 Cal.App.4th 964, 976-977.) “[Penal Code s]ection 26 provides in pertinent part that persons who ‘committed the act or made the omission charged under an ignorance or mistake of fact, which disproves a criminal intent,’ are not criminally liable for the act. Put another way, people do not act unlawfully if they commit acts based on a reasonable and honest belief that certain facts and circumstances exist which, if true, would render the act lawful. [Citations.] When, however, ‘“a person commits an act based on a mistake of fact, his guilt or innocence is determined as if the facts were as he perceived them.”’[Citations.]” (People v. Reed (1996) 53 Cal.App.4th 389, 396, italics in original; see also People v. Rivera (1984) 157 Cal.App.3d 736, 742-743; People v. Young (2001) 92 Cal.App.4th 229, 234; People v. Beardslee (1991) 53 Cal.3d 68, 87.)
In some circumstances, a defendant’s mistake of fact, whether or not reasonable, can negate a specific intent element of a crime, so long as it is honestly held. (People v. Russell (2006) 144 Cal.App.4th 1415, 1425-1427; People v. Navarro (1979) 99 Cal.App.3d Supp. 1, 10-11; People v. Scott (1983) 146 Cal.App.3d 823, 831-832.)
In contrast, ignorance of the law, i.e., lack of knowledge that one’s conduct is against the law, generally does not excuse criminal conduct and is not a defense. (People v. O’Brien (1892) 96 Cal. 171, 176; People v. Cole (2007) 156 Cal.App.4th 452, 483 (Cole).)
“As Justice Story explained nearly two centuries ago, [it] ‘is a common maxim, familiar to all minds, that ignorance of the law will not excuse any person, either civilly or criminally.’ (Barlow v. United States (1833) 32 U.S. 404, 411.) Our courts have consistently endorsed that principle. ‘It is an emphatic postulate of both civil and penal law that ignorance of a law is no excuse for a violation thereof. Of course it is based on a fiction, because no man can know all the law, but it is a maxim which the law itself does not permit any one to gainsay. It is expected that the jury and the court, where it is shown that in fact the defendant was ignorant of the law, and innocent of any intention to violate the same, will give the defendant the benefit of the fact, and impose only a light penalty. [Citations.] The rule rests on public necessity; the welfare of society and the safety of the state depend upon its enforcement. If a person accused of crime could shield himself behind the defense that he was ignorant of the law which he violated, immunity from punishment would in most cases result. No system of criminal justice could be sustained with such an element in it to obstruct the course of its administration .... The denser the ignorance the greater would be the exemption from liability.’ [Citations.]” (People v. Noori, supra, 136 Cal.App.4th at p. 978.)
Thus, a mistake of law is not a defense to a general intent offense. (People v. Ramsey (2000) 79 Cal.App.4th 621, 632; People v. Vineberg (1981) 125 Cal.App.3d 127, 137 (Vineberg); Cole, supra, 156 Cal.App.4th at p. 483.) “The so-called maxim that everyone is presumed to know the law, and the rule that ignorance of the law is not an excuse for crime, are based upon the practical consideration of public necessity. If the act itself is punishable when knowingly done, it is immaterial that the defendant thought it was lawful. Criminal intent is merely the intent to commit the prohibited act, not the intent to violate the law.” (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, § 36, p. 367; Cole, supra, 156 Cal.App.4th at p. 483.)
For example, in People v. Young, supra, 92 Cal.App.4th 229, the defendant was convicted of transportation of marijuana. He argued that he believed the marijuana was medicine under the Compassionate Use Act, and his belief constituted a mistake of fact as a defense to the charge. (Id. at p. 233.) Young held such that the defendant’s belief that he was acting legally under the Compassionate Use Act was a mistake of law, not a mistake of fact, and thus was not a defense to the general intent crime of transportation. (Id. at pp. 234-235, 237.)
In some circumstances, however, a good faith mistake of law may be a valid defense to a specific intent crime, if the mistake negates the specific intent required for the offense. (People v. Howard (1984) 36 Cal.3d 852, 862-863; Vineberg, supra, 125 Cal.App.3d at p. 137; People v. Ramsey, supra, 79 Cal.App.4th at p. 632; Cole, supra, 156 Cal.App.4th at p. 483.) “It has been recognized in California since the turn of the century that ignorance or mistake of law can negate the existence of a specific intent .... [Citation.] It has also been recognized, however, for approximately the same length of time, that an accused is only entitled to such an instruction if the evidence supports a reasonable inference that any such claimed belief was held in good faith. [Citation.]” (Vineberg, supra, 125 Cal.App.3d at p. 137.)
Thus, a mistake of law instruction is only appropriate where the evidence supports a reasonable inference that the claimed mistake was held in good faith. (People v. Flora (1991) 228 Cal.App.3d 662, 669; People v. Howard, supra, 36 Cal.3d 852, 862-863.) “For example, the circumstances in a particular case might 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.” (People v. Stewart (1976) 16 Cal.3d 133, 140.) “In the absence of some evidence from which it can be inferred that defendants’ alleged belief in the lawfulness of their conduct was in good faith, the court was under no duty to instruct the jury that a good faith mistake of law constituted a defense to the action.” (Vineberg, supra, 125 Cal.App.3d at p. 138, fn. omitted.)
However, “[t]he defendant may not prove a good faith mistake of law by arguing he was unaware of the precise statute he was violating.” (People v. Urziceanu (2005) 132 Cal.App.4th 747, 779 (Urziceanu).) For example, in People v. Smith (1966) 63 Cal.2d 779, the court held it was irrelevant whether a defendant knew the crime he was about to commit was burglary as defined under California law when he entered a store in an attempt to cash a forged check. In that case, the defendant’s specific criminal intent was demonstrated by his judicial admission that he entered the store with the intent to cash checks he knew were forged, and he knew that was unlawful. (Id. at p. 792-793.) Thus, whether he knew he had violated a particular statute did not demonstrate the type of mistake that would disprove his criminal intent and therefore was not relevant. (Ibid.) “[T]he 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. 793.)
D. Analysis
In the instant case, appellant asserts the court had a sua sponte duty to instruct on a mistake of law defense, based on his claim that he thought he could act as Espinosa’s paralegal since Espinosa represented himself in the civil action, and he was unaware that section 6450, subdivision (a) required a paralegal to act under the supervision and direction of a licensed attorney. Appellant acknowledges that mistake of law is not a valid defense to a general intent offense, but points out the jury was instructed on the alternate theory of the attempted unauthorized practice of law, in violation of section 6126, subdivision (b), the attempt theory required specific intent, and mistake of law is a valid defense to a specific intent offense. Appellant acknowledges that during the instructional arguments, he raised the issue as a mistake of fact, but cites to the trial court’s lengthy comments as reflecting its realization that his claim raised a mistake of law, and it thus had the sua sponte duty to give a mistake of law instruction.
Appellant’s arguments regarding the mistake of law defense instruction are based upon the premise that the defense was applicable herein since the jury was instructed on attempted unauthorized practice of law, the attempt theory required specific intent, and mistake of law is a defense to a specific intent offense. Appellant’s premise fails, however, because the jury never should have been instructed on attempt as an alternate theory of violating section 6126. “The test for determining whether instructions on a particular theory of guilt are appropriate is whether there is substantial evidence which would support conviction on that theory. [Citation.]” (People v. Nguyen (1993) 21 Cal.App.4th 518, 528.) In this case, there was insufficient evidence that appellant “attempted” to engage in the unauthorized practice of law. He freely admitted that he conducted legal research, drafted letters, motions, points and authorities, and propounded multiple discovery requests in the civil litigation, and that Espinosa paid him for his services. Based on his trial testimony, appellant’s potential defense theories were that (1) he thought he was just an unregistered attorney, (2) he merely acted as a scrivener and typed what Espinosa told him, and/or (3) he thought he could work for Espinosa as a paralegal since Espinosa was representing himself in the civil case. But he never denied producing the voluminous legal documents for Espinosa in the civil litigation, or claimed that he made any direct but ineffectual acts toward the unauthorized practice of law. Such an attempt might have existed if appellant and Espinosa had reached a fee agreement, and appellant obtained the basic facts of the case without offering any legal advice or producing any legal documents for Espinosa. But appellant’s conduct in this case went far beyond “attempting” to do anything. Thus, the jury should never have been instructed on the alternate theory of attempted unauthorized practice of law. Since there was insufficient evidence to support the attempt theory based on specific intent, appellant was not entitled to any type of mistake of law defense instruction.
Appellant asserts there was sufficient evidence for the court to instruct on the attempt theory because “appellant was ineffective in his efforts to help Mr. Espinosa obtain the discovery he sought, despite many repeated attempts. In addition, Mr. Espinosa’s repeated declarations that the legal concepts swirled above his head, confused him and gave him headaches, showed that appellant was ineffective in even his efforts to explain the necessary legal concepts to Mr. Espinosa.” Appellant asserts it was reasonably possible the attempt theory contributed to his conviction because of “the ineffectiveness” of his efforts on Espinosa’s behalf. This argument is specious because the practice of law is based upon the conduct of the defendant, it includes giving legal advice and evaluating the legal rights of a client, and it does not depend upon whether the defendant’s putative “client” understood relevant legal concepts or even if the defendant’s legal assistance was successful.
When a jury is instructed on multiple theories, one of which is factually inadequate, “reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground.” (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) “If a jury reaches a general verdict on more than one factual theory, one or more of which is supported by the evidence and one of which is not, an appellate court will presume, unless the record shows otherwise, the jury acted properly and relied on a supported theory. [Citation.]” (People v. Lucas (1997) 55 Cal.App.4th 721, 733-734.) An instruction on an unsupported theory is prejudicial “only if that theory became the sole basis of the verdict of guilt; if the jury based its verdict on the valid ground, or on both the valid and the invalid ground, there would be no prejudice, for there would be a valid basis for the verdict.” (People v. Guiton, supra, at p. 1130.)
In the instant case, the jury herein was properly instructed on the general intent offense of unauthorized practice of law and there is no affirmative indication the verdict rested on the attempt theory. Indeed, the parties’ closing arguments focused on whether appellant’s conduct amounted to the practice of law or if he merely acted as Espinosa’s typist. Neither the prosecutor nor appellant asserted that he merely engaged in the attempted practice of law. As the trial court suggested, the attempt theory was extraneous to the evidence introduced at trial, such that the disputed issue was whether appellant committed the unauthorized practice of law pursuant to the general intent theory, and mistake of law is not a defense to a general intent offense.
Moreover, even if the attempt theory was supported by the substantial evidence, the trial court was not under a sua sponte duty to give a mistake of law instruction because appellant’s conduct did not comport with any claim of good faith. Appellant admitted he read section 6450, the paralegal statute, but claimed he only read subdivision (b) about the type of work which could be performed by a paralegal. Appellant claimed he did not read subdivision (a), which states that a paralegal must work under the direction and supervision of a licensed attorney. Appellant also claimed that he relied upon the statements by two clerks in the Fresno County Superior Court, who told him that if “you’re an in pro per, you’re your own attorney.”
“... I thought that based on what Mr. Espinosa had told me and what the two clerks had two me that it was reasonable to assume that I could, in fact, work for Mr. Espinosa as his paralegal, and I never thought that it was necessary to doubt what he had said or what they had said, and go out and conduct some research. What I did for Mr. Espinosa did not amount to practicing law.”
“‘Whether a 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.’ [Citations.]” (People v. Stewart, supra, 16 Cal.3d at p. 140; People v. Flora, supra, 228 Cal.App.3d at pp. 669-670.) The entirety of the record severely undermines appellant’s claim that his purported mistake of law was in good faith. Appellant claimed he only reviewed the paralegal statute for the tasks which could be performed by a paralegal. Such tasks, however, are set forth in both subdivisions (a) and (b) of section 6450, such that appellant’s claim that he failed to read subdivision (a)’s requirements is strained. Moreover, while the two anonymous clerks allegedly told appellant that Espinosa was acting as his own attorney, appellant never testified that anyone told him that a paralegal could legally work for an unlicensed layperson who was representing himself in civil litigation. As the trial court noted, it would be against public policy for appellant to claim a safe harbor based on his purported ignorance of the law. (See People v. Flora, supra, at pp. 669-670.)
The flaw in appellant’s good faith mistake of law theory is demonstrated by contrasting holdings in Urziceanu and Vineberg. In Urziceanu, the defendant was charged with various crimes concerning the cultivation and sale of marijuana, with the jury finding him guilty only of the crime of conspiracy to sell marijuana. One of defendant’s primary arguments had been that the Medical Marijuana Program Act and the Compassionate Use Act supplied him with a defense and the trial court should have instructed the jury on his defenses of mistake of law and the vagueness of the Compassionate Use Act. Urziceanu concluded that evidence existed to support defendant’s good faith mistake of law, which although not a defense to the crime of selling marijuana, was a defense to the specific intent offense of conspiracy to commit that crime. The court noted that the defendant had presented evidence that he contacted law enforcement officers and other public officials and attempted to cooperate with them to ensure that his organization met the requirements of the Compassionate Use Act, and such evidence supported his good faith claim of mistake of law. (Urziceanu, supra, 132 Cal.App.4th at pp. 766, 774-779.) In Vineberg, the defendants similarly presented evidence that they believed they had the right to appropriate the property of another, but presented no evidence to show that their belief was in good faith. Vineberg concluded: “In the absence of some evidence from which it can be inferred that defendants’ alleged belief in the lawfulness of their conduct was in good faith, the court was under no duty to instruct the jury that a good faith mistake of law constituted a defense to the action.” (Vineberg, supra, 125 Cal.App.3d at p. 138, fn. omitted.) In the instant case, even if appellant’s mistake of law claim had been viable, he presented no evidence that he believed his conduct was lawful or that such a belief was held in good faith, as in Vineberg and in contrast to Urziceanu.
Appellant’s second appellate issue is that the mistake of fact instruction was erroneous because it specifically stated that a mistake of fact may have occurred if appellant reasonably believed Espinosa was a licensed attorney. Appellant asserts an unreasonable mistake of fact is a defense to a specific intent offense. As appellant correctly points out, he never claimed that he held such a belief, and instead tried to argue that he believed Espinosa was acting as his own attorney and could employ him as a paralegal. Appellant argues the mistake of fact instruction “erroneously excluded the jury from considering appellant’s belief that Mr. Espinosa’s status as an in pro per attorney authorized appellant to work for him as a paralegal as a mistake of law defense to both the general intent and specific intent theories of culpability.” As we have discussed, however, appellant’s claim that he mistakenly believed he could act as Espinosa’s paralegal raised a mistake of law, not a mistake of fact. Any purported unreasonable mistake of fact was only applicable to a specific intent offense, and there was insufficient evidence to support the attempt theory in this case.
Even if the mistake of fact instruction contained erroneous language, we cannot say the error was prejudicial since the evidence did not support any additional defense instructions. As explained ante, appellant’s claim that he could legally act as Espinosa’s paralegal was based on a mistake of law and only applicable to a specific intent offense. Appellant also claimed he mistakenly believed that he was only disbarred for five years, his disbarment ended in 2002, and he thought he was just an unregistered attorney in 2004. On cross-examination, however, appellant admitted that he received a notice from the State Bar that he had been disbarred, and he knew he was still disbarred when he started working for Espinosa in 2004. The only other remaining defense was appellant’s claim he was just a scrivener, and that he never engaged in the unauthorized practice of law because he simply filled out documents at Espinosa’s direction. Such an argument would not have required any special defense instructions, and just presented a credibility question for the jury: whether the testimony from Espinosa and appellant on the “scrivener” issue was credible, compared to the multiple legal documents which appellant admittedly researched, wrote, and served on the opposing party in the civil litigation. While appellant and Espinosa tried to claim that Espinosa directed the litigation, both men admitted that appellant read and interpreted all the pleadings in this case, he conducted all the legal research, and he presented the various options for Espinosa’s approval. Such conduct clearly amounted to the practice of law.
We thus conclude the court’s failure to instruct on mistake of law was not erroneous since there was insufficient evidence to support the attempt theory of the offense, and a mistake of law is not a defense to a general intent offense. While the language in the mistake of fact instruction was expressly directed to the specific intent element of the attempt theory, any erroneous language is necessarily extraneous since there was insufficient evidence to support the attempt theory, the jury was instructed to disregard any language it determined did not exist, and it is not reasonably probable that a result more favorable to appellant would have occurred in the absence of any such error. (See, e.g., People v. Harrison (2005) 35 Cal.4th 208, 252; People v. Peters (1982) 128 Cal.App.3d 75, 86-87.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, J., DAWSON, J.