CORBETT, J.

Defendant, Lynn Alexander Takacs, appeals his judgment and sentence entered on a jury verdict finding him guilty of assault in the second degree. Following affirmance in State v. Takacs, 31 Wn. App. 868, 645 P.2d 1109 (1982), the Supreme Court granted review and remanded to this court for reconsideration in light of State v. McCullum, 98 Wn.2d 484, 656 P.2d 1064 (1983). The parties have submitted additional briefs and argument.

At trial, the defendant testified that he had consumed one-half to three-fourths of a fifth of whiskey before going with three companions to a 7-Eleven store. When the victim drove up to the store, the defendant was offended by his apparent attitude and exchanged expletives with him. After the victim went inside the store, one of the defendant's companions fought with a passenger in the victim's car. When the victim came out of the store, he obtained a 2-foot-long metal flashlight from his car and started toward the altercation. Defendant testified that the victim brandished the flashlight, but testimony was disputed as to who threw the first punch. Defendant testified that he struck the victim three times in the "midsection" and that one of his companions did most of the beating. This testimony was disputed by other witnesses who testified that the defendant repeatedly punched and kicked the victim in the head after the victim had fallen to the ground. There was massive bleeding from the victim's head and he suffered many cuts and bruises, as well as a concussion and broken nose. Defendant fled the scene when the police arrived.

Defendant assigns error to the "to convict" instruction given by the court and to failure to give his proposed instruction. Defendant's proposed instruction differs from that given by the court by placing upon the State the burden of proving that the assault was not committed in self-defense. Other instructions accurately defined self-defense and described it as a "complete defense." None of the instructions specifically allocated the burden of proof on self-defense to either party.

In State v. McCullum, supra, The Supreme Court held by a plurality that in a first degree murder prosecution, the State bears the burden of disproving a claim of self-defense. Because the jury had been instructed that the defendant had the burden of proving this defense, the Supreme Court reversed the conviction and remanded the case for a new trial.

[1] Due process requires the State to prove every fact necessary to constitute the crime charged. In re Winship, 397 U.S. 358, 364, 25 L.Ed.2d 368, 90 S.Ct. 1068 (1970); Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed.2d 508, 95 S.Ct. 1881 (1975). The State bears the burden of proving beyond a reasonable doubt the absence of a defense if the absence of that defense is an element of the crime and there is some evidence of the defense. Patterson v. New York, 432 U.S. 197, 214-15, 53 L.Ed.2d 281, 97 S.Ct. 2319 (1977). There are two ways to determine whether the absence of a defense is an element of the offense: the statute may reflect a legislative intent to treat absence of the defense as an element; or an element of the defense may negate an element of the crime. McCullum, at 490. Examination of the statute and its legislative history indicates no intent to make the absence of self-defense an element of the crime. Therefore, we must determine whether self-defense negates an element of second degree assault.

In State v. Hanton, 94 Wn.2d 129, 614 P.2d 1280, cert. denied, 449 U.S. 1035 (1980), the court parsed the statutory definition of "recklessness" into two parts: (1) disregard of a substantial risk, (2) that a wrongful act may occur. The court emphasized the word "wrongful" and concluded that since self-defense is lawful, an act done in self-defense cannot be reckless. McCullum followed the same analysis in construing the definition of "intent." It is here that a careful reading of the McCullum decision is required. The court parsed the statutory definition into (1) an act, (2) done with the objective or purpose to accomplish a result which constitutes a crime. The decision construed part (2) of the definition to mean "unlawful."

The court stated:

Since self-defense is explicitly made a "lawful" act under Washington law, . . . it negates the element of "unlawfulness" contained within Washington's statutory definition of criminal intent.

State v. McCullum, supra at 495. Because the test of self-defense is subjective, State v. Wanrow, 88 Wn.2d 221, 234-36, 559 P.2d 548 (1977), a literal interpretation of the McCullum decision could lead to what is known as a "mistake of law" defense, i.e., the burden would be upon the State to prove that the defendant did not believe his conduct was lawful. See La Fond, The Case for Liberalizing the Use of Deadly Force in Self-Defense, 6 U. Puget Sound L. Rev. 237, 261-64 (1982). "Mistake of law" is not a recognized defense. 21 Am.Jur.2d Criminal Law § 142 (1981); Kansas City v. LaRose, 524 S.W.2d 112, 120 (Mo. 1975); see also United States v. Barker, 514 F.2d 208, 228 (D.C. Cir.) (Bazelon, J., concurring), cert. denied, 421 U.S. 1013 (1975); United States v. Currier, 621 F.2d 7, 9 (1st Cir. 1980); United States v. Jones, 642 F.2d 909, 914 (5th Cir. 1981).

A more reasonable construction of the statute and, therefore, that which the court intended is: (1) an act, (2) done with the objective or purpose to accomplish a result, (3) which constitutes a crime. Divided this way, (3) is the "unlawfulness" element negated by self-defense. Analyzing the statute in this way does not permit a mistake of law defense, i.e., it does not permit the defense argument that the State must prove the defendant knew his conduct was against the law. It allows a jury to determine lawfulness by applying the law of self-defense to the defendant's conduct.

[2, 3] Under the pertinent portion of our second degree assault statute, the State must prove knowledge and an infliction of grievous bodily harm upon another. RCW 9A.36.020(1)(b). Applying the McCullum analysis to the element of knowledge, the State must prove: (1) awareness of a fact or circumstances or result, (2) defined by statute as an offense. Self-defense negates the "unlawfulness" element of (2). Since self-defense is lawful, the State has the burden of proving the absence of self-defense, i.e., it must prove that the conduct was unlawful. Applying the McCullum rationale, we find that the State is required to prove the absence of self-defense when that issue is properly raised in a second degree assault prosecution.

Having so held, we reach the issue of retroactivity. In State v. LeBlanc, 34 Wn. App. 306, 309, 660 P.2d 1142 (1983) (simple assault), the court assumed that McCullum should be applied retroactively because the case was on direct appeal at the time McCullum was filed, and McCullum was not made prospective only. Accord, State v. Heath, 35 Wn. App. 269, 273, 666 P.2d 922 (1983) (first degree murder). The court in LeBlanc reversed on the ground that there was no instruction on the State's burden of proof and no reference to self-defense, excuse, or justification in the "to convict" instruction. State v. Mercer, 34 Wn. App. 654, 659, 663 P.2d 857, review denied, 100 Wn.2d 1005 (1983) (second degree felony murder) held that the language of McCullum indicates it applies prospectively only. Neither LeBlanc nor Mercer discusses the issue of retroactivity.

[4, 5] In United States v. Johnson, 457 U.S. 537, 73 L.Ed.2d 202, 102 S.Ct. 2579 (1982), the United States Supreme Court considered retroactivity precedent. Our State Supreme Court summarized Johnson as follows:

In Johnson, the Supreme Court adopted a new test for all decisions interpreting the Fourth Amendment which are not clearly controlled by past retroactivity precedent. After Johnson, Fourth Amendment decisions must be applied retroactively to all cases still pending on direct appeal at the time of the new decision.

State v. Counts, 99 Wn.2d 54, 57, 659 P.2d 1087 (1983). The Johnson analysis is not limited to Fourth Amendment cases. See Mack v. Oklahoma, ___ U.S. ___, 74 L.Ed.2d 161, 103 S.Ct. 201 (1982) (Fifth Amendment). Johnson approved three categories of cases as being adequately covered by past retroactivity analysis. First, in those cases that apply established precedent to new and different factual situations, the Court concluded that no real question of retroactivity arose. Second, in those cases which declare a rule of criminal procedure which is "a clear break with the past", prospectivity may be properly argued. Third, in those cases in which the Court ruled that the trial court lacked authority to convict or punish in the first instance, full retroactivity should be given. The question then becomes into which category the McCullum decision falls. We conclude that it best fits into the second category as being a "clear break with the past".

In general, the Court has not subsequently read a decision to work a "sharp break in the web of the law," unless that ruling caused "such an abrupt and fundamental shift in doctrine as to constitute an entirely new rule which in effect replaced an older one." Such a break has been recognized only when a decision explicitly overrules a past precedent of this Court, or disapproves a practice this Court arguably has sanctioned in prior cases, or overturns a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.

(Citations omitted.) Johnson, at 551. Clearly, the McCullum decision, as it relates to the procedure of jury instruction, is a break with precedent. After the adoption of the new criminal code and in a series of cases following State v. Roberts, 88 Wn.2d 337, 562 P.2d 1259 (1977), our Supreme Court consistently held that a specific instruction concerning the burden of proof in self-defense cases need not be given:

Instead of requiring a specific instruction affixing the burden of proof on the State, we indicated the trial court need not instruct on the burden of proof for self-defense as long as the defendant could fully argue his theory of the case.

McCullum, at 499. McCullum expressly modified four prior cases which had followed this approach: State v. Hanton, supra; State v. Savage, 94 Wn.2d 569, 618 P.2d 82 (1980); State v. Burt, 94 Wn.2d 108, 614 P.2d 654 (1980); State v. King, 92 Wn.2d 541, 599 P.2d 522 (1979). The court overruled precedent and disapproved a widespread practice it had expressly sanctioned since the adoption of the new criminal code in 1976.

The test to determine retroactivity when there is a break in precedent is a balancing of the following:

(1) The purpose of the new rule and whether retroactive application of the rule would effectively serve that purpose; (2) whether and to what extent law enforcement agencies, including courts, justifiably relied upon the preexisting rule; and (3) the effect of retroactive application upon the administration of justice, . . .

Brumley v. Charles R. Denney Juvenile Ctr., 77 Wn.2d 702, 707, 466 P.2d 481 (1970).

Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule [is] given complete retroactive effect.

Hankerson v. North Carolina, 432 U.S. 233, 243, 53 L.Ed.2d 306, 97 S.Ct. 2339 (1977). The McCullum decision stated that giving a specific burden of proof instruction would serve to:

(1) [C]larify burden of proof questions and reduce the chances for jury confusion; (2) make appellate review of such issues easier, especially as to sufficiency of the evidence challenges; and (3) reduce the likelihood that future convictions would have to be reversed for errors similar to the one presented here.

McCullum, at 500. Retroactive application would not effectuate these purposes. Moreover, the McCullum decision does not suggest that failure to give the specific instruction is of constitutional magnitude or would substantially impair the truthfinding process.

While we continue to believe specific burden of proof instructions technically are not necessary, it may be preferable to do so for the sake of clarity.

McCullum, at 499. We cannot say that the failure to give a specific instruction allocating the burden of proof as to self-defense substantially impaired truth finding or raised serious questions about the accuracy of past verdicts where the jury was properly instructed on self-defense and informed that the State has to prove every element of the crime beyond a reasonable doubt.

The other two factors referred to in Brumley also support a conclusion against retroactivity. It cannot be disputed that following the decision in State v. Hanton, the courts and prosecutors justifiably relied on the rule that a specific instruction was not necessary. Also, the effect on administration of justice would be significant. There is a very large number of cases tried before the McCullum decision in which the burden of proving self-defense was not allocated. Applying McCullum retroactively would require retrial in many of these cases.

Our decision is fortified by language in McCullum which indicates the rule should be given prospective effect only. After indicating that future jury instructions concerning the burden of proof of self-defense should specifically allocate that obligation to the State, the court said:

We think the best policy regarding such specific jury instructions is summarized in Notaro v. United States, 363 F.2d 169, 175 (9th Cir. 1966):

The desire of a careful judge to avoid language which to him may seem unnecessarily repetitive should yield to the paramount requirement that the jury in a criminal case be guided by instructions framed in language which is unmistakably clear.

Upon further reflection, we feel this is the better approach to handling burden of proof issues regarding self-defense, at least when a specific instruction is requested by the defendant.

McCullum, at 499-500. We find the McCullum rationale inapplicable to cases tried before that decision was filed.

[6] Instructions are sufficient if they permit each party to argue his theory of the case, are not misleading, and when read as a whole, properly inform the jury of the applicable law. State v. Mark, 94 Wn.2d 520, 526, 618 P.2d 73 (1980); State v. Dana, 73 Wn.2d 533, 536-37, 439 P.2d 403 (1968). The instructions here were not misleading and permitted the defendant to argue his theory of the case to the jury, i.e., that the assault was committed in lawful self-defense. Moreover, the instructions properly informed the jury of the applicable law. The law as it existed at the time the present case was tried was stated in State v. Hanton, supra at 134:

If a defendant presents sufficient evidence to raise an issue of self-defense, the court need only instruct on it without allocating the burden of proof. Such an instruction permits a defendant to fully argue his theory of the case.

See also State v. King, supra; State v. Burt, supra. The trial court did not err by failing to place the burden of proving the absence of self-defense upon the State.

Affirmed.