## Facts

- George Hanna communicated online with a girl who was 13 years old.
- The girl’s MySpace profile listed her age as 18.
- Evidence showed Hanna knew the girl was in middle school and knew she had lied about her age online to meet older men.
- Hanna arranged an in-person meeting and traveled to the meeting location intending to engage in sexual conduct.
- Hanna was charged with, among other offenses, attempted lewd act on a child under 14 (Cal. Penal Code §§ 664/288, subd. (a)) and arranging a meeting with a minor for lewd purposes (Cal. Penal Code § 288.4, subd. (b)).
- At trial, Hanna requested a jury instruction on a good-faith, reasonable mistake-of-fact defense as to the victim’s age for the attempted § 288(a) count; the trial court refused.
- The jury convicted Hanna of multiple offenses, including attempted violation of § 288(a).

## Issues

1. Whether a reasonable, good-faith mistake of fact as to a victim’s age is a defense to attempted lewd act on a child under 14 (Cal. Penal Code §§ 664/288(a)).
2. If the defense applies and the instruction was warranted, whether the failure to instruct was prejudicial or harmless under state-law error review.

## Decision

- The Court of Appeal held that a reasonable mistake-of-age defense may apply to an attempt to commit a lewd act on a child under 14.
- The court concluded there was sufficient evidence to warrant giving the requested mistake-of-fact instruction.
- The court held the trial court erred by refusing the instruction for the attempted § 288(a) count.
- The court affirmed the judgment because the instructional error was harmless: it was not reasonably probable the jury would have reached a different result given the evidence that Hanna knew the victim was 13.

## Legal Principles

- Attempt liability requires specific intent to commit the target offense; when the victim’s being under 14 is part of what defines the target offense, a reasonable and actual belief that the victim was 14 or older can negate the specific intent required for attempted § 288(a).
- A defendant is entitled, upon request, to a mistake-of-fact instruction when substantial evidence supports that the defendant actually and reasonably believed the victim was not under the statutory age.
- Erroneous refusal to give a warranted defense instruction on mistake of fact as to age is reviewed for prejudice under state harmless-error principles; reversal is required only if there is a reasonable probability of a more favorable outcome absent the error.

## Conclusion

The court ruled that a reasonable, good-faith mistake as to a victim’s age can be a defense to attempted lewd acts on a child under 14, but affirmed because the trial court’s failure to instruct on the defense was harmless in light of strong evidence the defendant knew the victim was 13.


People v. Hanna, 218 Cal. App. 4th 455, 160 Cal. Rptr. 3d 210 (Ct. App. 2013)