Failure to instruct on lesser included offense to taking by means of riot a person from peace officer custody was reversible error. Richards was convicted of attempting to take another person from the lawful custody of a police officer by means of riot (Pen. Code, §§ 664/405a). She was granted probation. On appeal she argued the trial court prejudicially erred by failing to give a lesser included offense instruction on attempted rescue. Held: Reversed. A lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts alleged in the accusatory pleading, include all of the elements of the lesser offense. A trial court is required to instruct on lesser included offenses if there is substantial evidence that only the lesser offense was committed. An attempted violation of Penal Code section 405a involves (1) an attempt (2) to participate (3) in the taking of another person (4) by means of riot, i.e., force (5) from the lawful custody of a police officer. Attempted rescue (Pen. Code, § 4550), requires: (1) an attempt (2) by one or more persons (3) to rescue a prisoner (4) from the lawful custody of an officer. Section 405a includes all the elements of attempted rescue, with section 405a having the additional element that the taking must be “by means of riot.” As such, attempted rescue is a lesser included offense of an attempted violation of section 405a. The trial court prejudicially erred in failing to instruct the jury with attempted rescue because the evidence showed defendant may have lacked the intent to use force or violence in conjunction with another person.

The trial court did not err in declining to give mistake of fact instructions (CALCRIM No. 3406). Defendant requested the trial court instruct on mistake of fact, arguing that she could not be convicted of an attempted violation of section 405a if she believed the person taken from police was not in lawful custody. However, section 405a does not define any specific intent element for the completed offense, it applies to anyone who “participates” in the proscribed activity. Though “lawful custody” is an element of the completed crime, the statute does not require knowledge of the lawfulness of police conduct as a separate element. The fact that defendant was charged with an attempt to violate this statute, and attempt requires the specific intent to commit the offense attempted, does not change the analysis. The threat to social order exists whether or not a person attempting that offense actually knows that the person she takes is being held lawfully. Further, mistake of fact is not a defense to the crime because attempting to take someone from the police by means of riot is criminal conduct even if the defendant believes that the custody is unlawful.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B275518.PDF