Filed 9/29/26 P. v. Gresham CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A172782
v. (City and County of San Francisco
JASON GRESHAM, Super. Ct. No. 24001190)
Defendant and Appellant.
Jason Gresham drove off with a rideshare car that did not belong to
him, which led to an extended police pursuit. After a jury trial, Gresham was
convicted of felony carjacking (Pen. Code, § 215, subd. (a)) and two
misdemeanors.
The main issue on appeal is whether Gresham was entitled to an
instruction on mistake of fact. Gresham argues that there was substantial
evidence that he did not intend to deprive the rideshare driver of his vehicle
against the driver’s will because he mistakenly believed that the driver had
come to his aid and he was allowed to take the car. He thus contends that
the trial court committed prejudicial error by declining to instruct the jury on
mistake of fact. Gresham also claims that the court erred by instructing the
jury on failure to explain or deny adverse evidence, resulting in cumulative
prejudice.
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Even assuming the trial court erred in declining to provide the mistake
of fact instruction, we find that any error was harmless. Additionally,
Gresham forfeited his challenge to the failure to explain or deny adverse
evidence instruction because he did not object below and any error did not
affect his substantial rights. We affirm.
BACKGROUND
On January 21, 2024, N.A., an Uber driver, arrived at Fisherman’s
Wharf to pick up passengers at approximately 3:45 a.m. N.A. was waiting for
his passengers to arrive when Gresham “all of a sudden” opened the front
passenger door, leaned his head and upper body into the vehicle, and said,
“[G]ive me a ride.” N.A. asked who Gresham was and explained that he was
there for a scheduled ride. Gresham responded: “Do not ask me questions,
just give me a ride.” N.A. observed Gresham “put his hands in his pocket”
and “saw a shiny object” that looked pointy and sharp. Gresham then
forcefully told N.A. to “leave the car or I’ll hit you.” N.A. exited his car with
the ignition on, and Gresham climbed into the driver’s seat and drove off.
N.A. called 911 right after Gresham drove off to report his car stolen.
The police identified N.A.’s car near the Bay Bridge and pursued it.
The car was moving at a high rate of speed entering the bridge. Officers
attempted to stop Gresham on the bridge, but he did not stop. Gresham
eventually pulled into a parking lot in Vallejo and was taken into custody.
The entire pursuit from San Francisco to Vallejo lasted 45 minutes to one
hour. Once in custody, Gresham appeared regretful and sorrowful to the
arresting officers.
At trial, Gresham testified that the night before the incident he smoked
fentanyl and fell asleep around 10:30 p.m. He woke up a few hours later
from a nightmare and immediately “smoked a whole bunch of
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meth[amphetamine]” to prevent himself from falling back asleep. He left his
room because he was having an argument with his roommate. As soon as
Gresham went outside, he started hearing “vivid” and “vicious” voices
threatening him to “get out of town before the break of dawn or as soon as
possible or [he] was going to die.” Gresham regularly heard voices in his
head but was usually able to manage them. He primarily heard voices when
he used methamphetamine. The voices were more noticeable during
“stressful occasions,” like when he took really strong fentanyl and then went
“to smoke more meth[amphetamine].”
On this particular evening, Gresham spent most of the night looking for
a place to hide. He eventually ended up in the Fisherman’s Wharf area. He
did not see a way to leave San Francisco and felt trapped. He was in a
parking lot and was praying when N.A. drove up and parked his car nearby.
Gresham thought this was “God’s way of helping [him] out.”
Gresham explained: “I know it sounds crazy. I know. Just made
perfect sense to me at the time. . . . I thought divine intervention somehow
he put this guy there to help me, that car.” Gresham went straight to the car,
opened the door, and sat down in the front passenger seat. “I thought he was
there to get me. I thought he was there to pick me up. I just jumped in. I
was ready to go.” After Gresham got in the car, he told N.A. it was cold and
N.A. turned on the heater. Initially, N.A. did not really pay attention to
Gresham until Gresham told N.A. he was ready to go. Gresham noticed N.A.
was surprised: “I assumed that he was there to pick somebody up. And by his
reaction he realized that I wasn’t the person that he was there to pick up.”
N.A. told Gresham that he was there to pick up a customer, but that he could
come back. Gresham said, “I can’t get out; I got 50, 60 bucks on a card; I’ll
give you that; just give me a ride out of town.” N.A. said no and “just got out .
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. . of the car.” Gresham denied threatening to hit N.A. or reaching into his
pocket or having anything in his hands.
Gresham stated that he was “unsure of the situation. And another
second or two I would have jumped out of the car. That would have been it. I
would have realized I screwed up, and I would have jumped out of the car,
you know. And in my brain at the time and I know it’s crazy. It’s nuts. I
really believed that he was there to help me. [¶] However, whoever it was
that was chasing me was watching the situation. And he didn’t want to get
in trouble and that’s why he had said no. And he was busy and he’d come
back. He didn’t want to get in trouble. That’s what I was thinking. And
when — when he jumped out I just thought, okay, yeah, that’s it. He didn’t
want to get in trouble. He jumped out so that’s — I jumped in and left.”
After N.A. got out of the car, Gresham “was relieved. I thought yeah, man,
God sent this guy to help me. He’s helping me. He didn’t want to get in
trouble for helping me, but he’s helping me. He got out. And now I can
leave.” Gresham then “jumped into the driver’s side,” put his seat belt on,
and because he had not driven a car since 2010 it took him a few moments
before he drove away.
Gresham said he drove towards the Bay Bridge because it was the only
route he knew out of the city. He kept the car’s emergency lights on because
he did not want anyone to get hurt. Gresham noted that he was still feeling
the effects of taking methamphetamine after he was arrested.
Gresham was charged by information with carjacking (Pen. Code,
§ 215, subd. (a), count 1); misdemeanor evading an officer (Veh. Code,
§ 2800.1, subd. (a), count 2); misdemeanor giving false information to a police
officer (Pen. Code, § 148.9, subd. (a), count 3); and unlawful driving or taking
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of a vehicle (Veh. Code § 10851, subd. (a), count 4).1 The information also
alleged various aggravating circumstances including that Gresham was
armed during the commission of the carjacking.
The jury found Gresham guilty of all counts and found the allegation
that he used a weapon during the commission of the carjacking to be not true.
In a bifurcated trial on the sentencing allegations, the jury found not true
that the crime involved the taking of an item of great monetary value. The
trial court found not true that Gresham engaged in conduct which indicates a
serious danger to society and that his prior convictions were numerous or of
increasing seriousness, while finding true that he had a prior prison term and
prior performance on probation was unsatisfactory. The court sentenced
Gresham to the low term of three years for carjacking (count 1) and
concurrent 180-day sentences for each misdemeanor (counts 2 & 3).
DISCUSSION
I. Mistake of Fact
Gresham contends the trial court committed prejudicial error by
denying his request to instruct the jury on mistake of fact. (CALCRIM No.
3406.) The People respond that the instructions were adequate as given and
that any error was harmless. Even assuming the mistake of fact instruction
was warranted, we agree with the People that any error in failing to give it
was harmless.
We review the trial court’s refusal to give a requested jury instruction
de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733.) “The mistake-of-fact
defense operates to negate the requisite criminal intent or mens rea element
of the crime, but applies only in limited circumstances, specifically when the
defendant holds a mistaken belief in a fact or set of circumstances which, if
1 The trial court granted the People’s motion to dismiss count 4.
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existent or true, would render the defendant’s otherwise criminal conduct
lawful.” (People v. Lawson (2013) 215 Cal.App.4th 108, 111 (Lawson).) A
mistake of fact defense “requires, at a minimum, an actual belief ‘in the
existence of circumstances, which, if true, would make the act with which the
person is charged an innocent act. . . .’ ” (Id. at p. 115, quoting People v.
Russell (2006) 144 Cal.App.4th 1415, 1425.) For general intent crimes, the
mistaken belief must be “both actual and reasonable,” while specific intent
crimes or crimes involving knowledge require only an actual mistaken belief.
(Lawson, at p. 115.) Regardless, “[a] mistake of fact must be in good faith.
[Citations.] In determining if a mistake of fact has negated a specific mental
state, the jury may consider reasonableness in deciding if the belief was in
good faith—a highly unreasonable belief can support an inference of bad
faith, so while objective reasonableness is not a requirement of the defense of
mistake, subjective reasonableness can be a relevant consideration on the
subject of good faith.” (People v. Watt (2014) 229 Cal.App.4th 1215, 1218.)
“The trial court does not have a sua sponte duty to give a mistake of fact
instruction. [Citations.] The court is, however, required to give such an
instruction on request, where a defendant presents substantial evidence on
mistake of fact and the instruction is legally correct.” (People v. Speck (2022)
74 Cal.App.5th 784, 791 (Speck).)
Defense counsel requested that a mistake of fact instruction be given to
the jury, CALCRIM No. 3406, as to the carjacking count.2 CALCRIM No.
2 Penal Code section 215, subdivision (a) provides: “ ‘Carjacking’ is the
felonious taking of a motor vehicle in the possession of another, from his or
her person or immediate presence, or from the person or immediate presence
of a passenger of the motor vehicle, against his or her will and with the intent
to either permanently or temporarily deprive the person in possession of the
motor vehicle of his or her possession, accomplished by means of force or
fear.”
6
3406 provides: “The defendant is not guilty of <insert crime[s]> if (he/she) did
not have the intent or mental state required to commit the crime because
(he/she) [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/she) [reasonably] believed them to be, (he/she) did not commit
<insert crime[s]>. If you find that the defendant believed that <insert alleged
mistaken facts> [and if you find that belief was reasonable], (he/she) did not
have the specific intent or mental state required for <insert crime[s]>. [¶] If
you have a reasonable doubt about whether the defendant had the intent or
mental state required for <insert crime[s]>, you must find (him/her) not guilty
of (that crime/those crimes).” (Judicial Council of Cal., Crim. Jury Instns.
(2026) CALCRIM No. 3406.) Gresham’s counsel argued that there was
substantial evidence that Gresham’s mistake of fact—specifically, that N.A.
and his car had been sent to help him escape San Francisco and that he was
allowed to use it—negated the specific intent to deprive N.A. of possession of
his vehicle. The trial court ultimately declined to instruct the jury on
mistake of fact. In doing so, the court explained that in its reading of the
testimony, Gresham “did not say that he understood that [N.A.] gave any
indication that it was okay for Mr. Gresham to take the car. Rather, Mr.
Gresham just believed from his mindset at the time that the car must have
been made available to him . . . to get out of town, which appears distinct
from a mistake of fact.”3
Assuming, without deciding, that the trial court erred in refusing to
provide the mistake of fact instruction, any error was harmless. “Error in
3The trial court also stated that the instruction was not appropriate
because mistake of fact is not an available defense where one is voluntarily
intoxicated.
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failing to give a mistake of fact instruction[, assuming but not deciding one
occurred,] is reviewed under People v. Watson (1956) 46 Cal.2d 818, 836 . . .;
that is, asking the question of whether upon review of the entire record it
appears reasonably probable defendant would have obtained a more
favorable result absent the error.” (Speck, supra, 74 Cal.App.5th at pp. 792–
793.)4 “In evaluating what a jury is likely to have done in the absence of the
error we ‘ “may consider, among other things, whether the evidence
supporting the existing judgment is so relatively strong, and the evidence
supporting a different outcome is so comparatively weak, that there is no
reasonable probability the error of which the defendant complains affected
the result.” [Citation.] “There is a reasonable probability of a more favorable
result within the meaning of Watson when there exists ‘at least such an equal
balance of reasonable probabilities as to leave the court in serious doubt as to
whether the error affected the result.’ ” ’ ” (Id. at p. 793.) In addition to the
fact that the evidence supporting the judgment is quite strong, the jury had
the opportunity to consider how Gresham’s mistaken beliefs affected his
specific intent in the context of other instructions.
While the trial court did not provide instructions on mistake of fact, the
court did instruct the jury on voluntary intoxication. CALCRIM No. 3426,
Voluntary Intoxication (§ 29.4), provides: “You may consider evidence, if any,
of the defendant’s voluntary intoxication only in a limited way. You may
4 Gresham contends that this type of mistake must be analyzed under
Chapman v. California (1967) 386 U.S. 18, citing People v. Hendrix (2022)
13 Cal.5th 933 (Hendrix). However, Hendrix did not decide what standard of
prejudice is required here. (Id. at p. 944.) Moreover, in People v. Molano
(2019) 7 Cal.5th 620, 669–670, our Supreme Court reviewed an error in
failing to instruct on an “unreasonable-belief-in-consent theory,” a type of
mistake of law, under the People v. Watson (1956) 46 Cal.2d 818 harmless
error test. Absent binding law to the contrary, we use the same standard.
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consider that evidence only in deciding whether the defendant acted [or failed
to an act] with [the required intent, as explained in the instruction for each
charged crime. [¶] A person is voluntarily intoxicated if he or she becomes
intoxicated by willingly using any intoxicating drug, drink, or other
substance knowing that it could produce an intoxicating effect, or willingly
assuming the risk of that effect. [¶] The People have the burden of proving
beyond a reasonable doubt that the defendant acted with the intent required
for each crime charged. If the People have not met this burden as to any
crime charged, you must find the defendant not guilty of that crime. [¶] You
may not consider evidence of voluntary intoxication for any other purpose.”
The trial court also instructed the jury on mental impairment as a
defense to specific intent. CALCRIM No. 3428, Mental Impairment: Defense
to Specific Intent or Mental State (§ 28) provides: “You have heard evidence
that the defendant may have suffered from a mental [disorder]. You may
consider this evidence only for the limited purpose of deciding whether, at the
time of the charged crime, the defendant acted with the intent or mental
state required for each crime charged. [¶] The People have the burden of
proving beyond a reasonable doubt that the defendant acted with the intent
required for each crime charged. If the People have not met this burden as to
any crime charged, you must find the defendant not guilty of that crime.”
Both of these instructions address the issue of Gresham’s mental state
and provide frameworks for evaluating impediments to the formation of
specific intent. (See, e.g., Hendrix, supra, 13 Cal.5th 933, 943 [“Voluntary
intoxication, like mistake of fact, is an issue that ‘bears on the question of
whether the defendant actually had the requisite specific mental state’ ”].)
These instructions would require consideration of Gresham’s mistaken
beliefs. It is probable that Gresham’s belief that people were “after him,” that
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he had to leave San Francisco or he would die, and that N.A. and his car were
provided by God to enable him to escape was, at least partially, the result of
Gresham’s voluntary intoxication and/or his mental health issues. The jury
had evidence before it that Gresham was suffering from mental illness and
was voluntarily intoxicated at the time of the offense. At closing, counsel
argued that Gresham acted under the auspices of a “substance-related
mental health crisis” and “hallucinations” when he took N.A.’s car. Yet, the
jury found neither Gresham’s mental illness nor voluntary intoxication
negated the specific intent necessary for carjacking in finding him guilty of
the offense. Based on these circumstances, we find no reasonable probability
that any error in failing to give the mistake of fact instruction, assuming such
error occurred, affected the result. (Speck, supra, 74 Cal.App.5th at p. 793.)5
II. Failure to Explain or Deny
Gresham next argues the trial court erred by providing CALCRIM No.
361, failure to explain or deny adverse evidence. Gresham did not object to
the instruction below. The claim is therefore forfeited unless the instruction
was legally incorrect or affected Gresham’s substantial rights. Neither
exception applies here.
“Generally, a party forfeits any challenge to a jury instruction that was
correct in law and responsive to the evidence if the party fails to object in the
trial court. [Citations.] The rule of forfeiture does not apply, however, if the
instruction was an incorrect statement of the law [citation], or if the
instructional error affected the defendant’s substantial rights. [Citations.]
‘ “Ascertaining whether claimed instructional error affected the substantial
5Gresham argues that based on his reading of the juror questions, the
case “was close on the issue of specific intent.” We cannot reliably infer the
strength of the verdict from the questions and requests for readback in this
case.
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rights of the defendant necessarily requires an examination of the merits of
the claim—at least to the extent of ascertaining whether the asserted error
would result in prejudice if error it was.” ’ ” (People v. Franco (2009)
180 Cal.App.4th 713, 719.) “In this regard, ‘[t]he cases equate “substantial
rights” with reversible error’ under the test stated in People v. Watson (1956)
46 Cal.2d 818.” (People v. Felix (2008) 160 Cal.App.4th 849, 857.)
Gresham does not contend that CALCRIM No. 361 incorrectly states
the law.6 Instead, he argues that giving the instruction affected his
substantial rights because it is reasonably probable he would have obtained a
more favorable result without it. Gresham states that because the
instruction did not identify what evidence he supposedly failed to explain or
deny, the jury was “invited to speculate” and would likely construe the
instruction as “inverting the burden of proof as to [his] specific intent.”
Gresham further claims there was cumulative error based on the trial court’s
refusal to provide the mistake of fact instruction. We disagree.
The challenged jury instruction, CALCRIM No. 361, states as follows:
“If the defendant failed in his testimony to explain or deny evidence against
him, and if he could reasonably expect to have done so based on what he
knew, you may consider his failure to explain or deny in evaluating that
evidence. Any such failure is not enough by itself to prove guilt. The People
must still prove the defendant guilty beyond a reasonable doubt. [¶] If the
defendant failed to explain or deny, it is up to you to decide the meaning and
importance of that failure.”
6 Gresham also argues that the trial court failed to determine that
there was evidence he reasonably could have been expected to explain or
deny. This contention alleges error in giving the instruction; it does not
establish that the instruction is an incorrect statement of the law.
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We do not see how CALCRIM No. 361 could have “inverted the burden
of proof” as to Gresham’s specific intent when the instruction explicitly
provides that any failure to explain or deny “is not enough by itself to prove
guilt.” The People must still prove the defendant guilty beyond a reasonable
doubt.” This includes the specific intent requirement for carjacking.
Moreover, the instruction only applies “[i]f the defendant failed in his
testimony to explain or deny evidence.” (CALCRIM No. 361, emphasis
added.) Thus, before drawing any inference, the jury had to first determine
whether Gresham had failed to explain or deny any evidence he reasonably
could have been expected to address. “We assume the jurors are intelligent
persons capable of understanding and correlating all jury instructions given
them.” (People v. Milosavljevic (2010) 183 Cal.App.4th 640, 649.)
Accordingly, even assuming that the trial court erred, there is no
reasonable probability that Gresham would have obtained a more favorable
result absent the instruction. The claimed error therefore did not affect his
substantial rights, and Gresham’s failure to object forfeited the claim.7
DISPOSITION
The judgment is affirmed.
7 Given that we have found no prejudice from the trial court’s asserted
error in declining to give a mistake of fact instruction, Gresham fails to
establish cumulative prejudice resulting from the trial court’s instruction of
the jury with CALCRIM No. 361.
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_________________________
Gordon, J.*
WE CONCUR:
_________________________
Brown, P. J.
_________________________
Streeter, J.
* Judge of the Superior Court of California, County of San Francisco,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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