A recent California appeals court opinion, which overturns two of an animal activist’s three convictions in a Sonoma County conspiracy case, establishes “a consequential new rule” for criminal matters and should not be cited as a standard, the state Attorney General’s Office says.
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In a June 26 letter to the California Supreme Court, the AG Office requests depublication of the First Appellate District in the case of Wayne Hsiung, a co-founder of Berkeley-based group Direct Action Everywhere, who was convicted in November 2023 on one felony count of conspiracy and two misdemeanor counts of trespassing.
Any individual may submit a letter of 10 pages or less contesting publication of an opinion in California as per court rules. The AG’s letter, replete with technical language and references to past cases, centers less on upholding Hsiung’s convictions and more on necessity and mistake-of-law elements that were key in the state Court of Appeal’s ruling.
A “necessity defense” applies when someone commits a criminal act during an emergency in order to prevent a greater harm from occurring. With “mistake of law,” a defendant may claim they misunderstood a law and didn’t know they were acting illegally.
“The Court of Appeals opinion conflates the two situations,” the letter states. “According to the opinion, the mistake of law defense is actually an inquiry into whether a defendant — who knew he was violating the law — thought he would be able to establish that he was not blameworthy.
“By conflating two quite distinct doctrines,” the letter continues, “the opinion plants the seed for confusion in future cases about specific intent, necessity and mistake of law and makes a defendant’s own moral code a defense to specific intent crimes.”
Letters requesting an opinion’s depublishing are typically included with a petition for review, which the AG’s Office filed on June 8. Like its letter, the office’s review petition highlights a statewide impact of the Court of Appeal’s opinion but not efforts to uphold Hsiung’s convictions.
His appellate case cannot be finalized until ongoing discussions wrap up. Among them are his own efforts to overturn his third and final conviction.
On June 7, the Animal Activist Legal Defense Project made its own petition for a review in order to get Hsiung’s third conviction overturned. It argues, in part, that the court erred in its finding that the “necessity defense” applied to emergencies but not planned responses for anticipated tragedies.
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“If allowed to stand, the (Court of Appeal’s) categorical bar will reshape the necessity defense across the contexts in which it most often arises,” Hsiung’s petition states. “It would foreclose the defense for neighbors who coordinate to cut a firebreak across private land as a wildfire bears down on their town; for victims of sustained domestic violence whose escape from a pattern of abuse requires deliberate planning; and for homeless individuals who prepare to sleep outside when all shelters are full night after night.”
Hsiung’s cases derived from DXE protests at Sunrise Farms in 2018 and Reichardt Duck Farm in 2019. He argued that birds were being rescued from abusive conditions as an act of necessity that outweighed unlawful activity that occurred in the process.
The appeals court backed Sonoma County Judge Laura Passaglia’s decision preventing Hsiung from using a “necessity defense” in his trial, noting the protests were organized and not in response to unexpected emergencies. But where Passaglia and the appeals court differed was on whether jurors should have been instructed on a mistake-of-law defense.
Hsiung maintained that his actions were based on opinions he received from legal and veterinary experts and asked that the jury be instructed on the mistake-of-law defense. If he believed in good faith that his actions were legal, he argued, any intent to commit trespass or conspiracy should be negated.
Passaglia had refused Hsiung’s request, reasoning that necessity can’t be the basis of a mistake-of-law defense. But because the overturned conspiracy and trespass counts were both based on intent, the appeals court found jurors should have been informed it was possible to connect necessity and mistake of law.
“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 the animals,” Justice Teri L. Jackson wrote in the opinion.
The AG’s Office letter counters this opinion, opens the doors to defendants downplaying allegations of intent, and, “In short, a belief in necessity is now a defense.”
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The Supreme Court has about 60 days to decide whether to review the opinion.
You can reach Staff Writer Colin Atagi at [email protected].
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