IN THE SUPREME COURT OF CALIFORNIA
S115009
In re MICHAEL LEE JENNINGS
Ct.App.
3
C041479
on Habeas Corpus.
) Sacramento
County
Super. Ct. No. 00M07614
Petitioner invited some guests to his home and served them alcoholic
beverages. One of the guests, only 19 years old, after leaving the party caused an
automobile accident resulting in serious injury. Charged with violating Business
and Professions Code1 section 25658, subdivision (c) (section 25658(c)), which
prohibits the purchase of an alcoholic beverage for someone under 21 years old
who, after drinking, proximately causes death or great bodily injury, petitioner
sought to defend against the charge by claiming he did not know his guest was
under the legal drinking age and in fact believed he was over 21 years old. The
trial court and two levels of appellate courts ruled that because knowledge of age
is not an element of the crime, a mistake of fact as to age is not a defense. We
agree the People need not prove knowledge of age to establish a violation of
section 25658(c), but we conclude petitioner was entitled to defend against the
charge by claiming a mistake of fact as to age. Accordingly, we reverse the
judgment.
1
All further statutory references are to the Business and Professions Code
unless otherwise stated.
FACTS2
On May 30, 2000, petitioner Michael Jennings, a supervisor for Armor
Steel Company in Rio Linda, invited coworkers Charles Turpin, Curtis Fosnaugh,
Daniel Smith and Donald Szalay to his home to view a videotape demonstrating
some new machinery the company was to obtain. Szalay stopped at a convenience
store and bought a 12-pack of beer to bring to the gathering. At petitioner’s
direction, his wife went to a store and purchased another 12-pack of beer. The
five men sat in the garage and drank beer.
Some time later, the men went into the house where they watched the
videotape and drank more beer. Around 6:00 p.m., the party broke up. Fosnaugh
left driving a white Ford pickup truck. Turpin then left driving his Volkswagen
Beetle, accompanied by Smith. Fosnaugh stopped at a stop sign at the intersection
of E Street and 20th Street in Rio Linda. Turpin, intending to overtake and pass
Fosnaugh on the left without stopping at the intersection, drove on the wrong side
of the road. By his own estimate, Turpin was driving around 55 miles per hour.
Unaware of Turpin’s intention to pass on the left, Fosnaugh attempted to make a
left turn, resulting in a major collision and serious injuries to Turpin, Smith and
Fosnaugh.
Turpin, who had to be pried from his car with the Jaws of Life, told police
responding to the scene that he drank about seven beers between 4:00 and
6:00 p.m. The results of a preliminary alcohol screening test indicated Turpin had
a blood-alcohol concentration of .124 percent. Later at the hospital, a blood test
2
Petitioner waived his right to a jury trial and submitted his case on the
police report. The facts are drawn largely from that report.
2
determined Turpin’s blood-alcohol concentration to be .16 percent. Turpin was 19
years old. Fosnaugh was 20 years old.
Petitioner was charged with violating section 25658(c), purchasing alcohol
for someone under 21 years old who consumes it and “thereby proximately causes
great bodily injury or death to himself, herself, or any other person.” The People
moved in limine to exclude evidence that petitioner was unaware Turpin was not
yet 21 years of age. Petitioner opposed the motion and made an offer of proof that
he was ignorant of Turpin’s age. Specifically, petitioner alleged that a few weeks
before the accident, he was with several coworkers drinking beer in front of a local
market after work when a police officer arrived and confronted Turpin, who was
holding a beer. Petitioner alleged he heard Turpin tell the officer he was 22 years
old. In addition, petitioner alleged that, although he was Turpin’s supervisor, he
did not process Turpin’s employment application (which did not, in any event,
have a space for the applicant’s age), and Turpin’s employment file did not have a
photocopy of his driver’s license.
The trial court granted the People’s motion, ruling that section 25658(c)
was a strict liability offense and ignorance of Turpin’s age was not a defense.
Petitioner then submitted the case on the police report subject to a reservation of
the right to challenge on appeal the correctness of the trial court’s evidentiary
ruling. The trial court found petitioner guilty as charged. The court sentenced him
to six months in jail, with sentence suspended and probation granted on conditions
including service of 60 days in jail.
DISCUSSION
A. Background
The regulation of alcoholic beverages in this country has taken a long and
twisting path (see U.S. Const., 18th Amend. [prohibiting “the manufacture, sale, or
3
transportation of intoxicating liquors” within the U.S.]; id., 21st Amend.
[repealing the 18th Amend.]), but regulation has now devolved to the states,
who “enjoy broad power under § 2 of the Twenty-first Amendment to regulate
the importation and use of intoxicating liquor within their borders.” (Capital
Cities Cable, Inc. v. Crisp (1984) 467 U.S. 691, 712.) One active area of
California’s regulation of alcoholic beverages concerns underage drinkers. No
citation to authority is necessary to establish that automobile accidents by
underage drinkers lead to the injuries and deaths of thousands of people in this
country every year. Nevertheless, the statistics are sobering. “In 2002, 24% of
drivers ages 15 to 20 who died in motor vehicle crashes had been drinking
alcohol.” (http://www.cdc.gov/ncipc/factsheets/drving.htm [as of Aug. 23, 2004].)
“Analysis of data from 1991–1997 found that, consistently, more than one in three
teens reported they had ridden with a driver who had been drinking alcohol in the
past month. One in six reported having driven after drinking alcohol within the
same one-month time period.” (http://www.cdc.gov/ncipc/factsheets/teenmvh.htm
[as of Aug. 23, 2004].) “In 2002, 25 percent of 16–20-year-old passenger vehicle
drivers fatally injured in crashes had high blood alcohol concentrations (0.08
percent or more). Teenage drivers with BACs in the 0.05-0.08 percent range are
far more likely than sober teenage drivers to be killed in single-vehicle crashes—
17 times more likely for males, 7 times more likely for females. At BACs of 0.08-
0.10, risks are even higher, 52 times for males, 15 times for females.”
(http://www.hwysafety.org/safety%5Ffacts%20qanda/underage.htm [as of
Aug. 23, 2004].)
Given these facts, that our laws shield young people from the dangers of
excess alcohol consumption is no surprise. Our state Constitution establishes the
legal drinking age at 21, three years past the age of legal majority (see, e.g., Cal.
Const., art. II, § 2 [must be at least 18 years old to vote]; Fam. Code, § 6500 [a
4
“minor” is one under 18 years old]; Prob. Code, § 3901, subd. (a) [“adult” defined
as one “who has attained the age of 18 years”]), both for purchases and personal
consumption at on-sale premises. (Cal. Const., art. XX, § 22.) The “likely
purpose” of this constitutional provision “is to protect such persons from exposure
to the ‘harmful influences’ associated with the consumption of such beverages.”
(Provigo Corp. v. Alcoholic Beverage Control Appeals Bd. (1994) 7 Cal.4th 561,
567.)
The Legislature has implemented this constitutional mandate in a number
of ways. For example, section 25658, subdivision (a) (§ 25658(a)) makes it a
misdemeanor to sell or furnish an alcoholic beverage to any person under the age
of 21 years. Section 25658, subdivision (b) makes it a misdemeanor for an
underage person to buy alcohol or consume an alcoholic beverage in any on-sale
premises. Under a new law enacted in 2003, a parent who permits his or her
minor child to drink an intoxicating beverage can under some circumstances be
guilty of a misdemeanor. (§ 25658.2.)3
3
Section 25658.2 provides: “(a) A parent or legal guardian who knowingly
permits his or her child, or a person in the company of the child, or both, who are
under the age of 18 years, to consume an alcoholic beverage or use a controlled
substance at the home of the parent or legal guardian is guilty of [a] misdemeanor
if all of the following occur:
“(1) As the result of the consumption of an alcoholic beverage or use of a
controlled substance at the home of the parent or legal guardian, the child or other
underage person has a blood-alcohol concentration of 0.05 percent or greater, as
measured by a chemical test, or is under the influence of a controlled substance.
“(2) The parent knowingly permits that child or other underage person,
after leaving the parent’s or legal guardian’s home, to drive a vehicle.
“(3) That child or underage person is found to have caused a traffic
collision while driving the vehicle.”
5
Of course, an underage person creates a potentially deadly situation when
he or she drives after imbibing. Addressing that situation, the Legislature has
provided penalties for persons under the age of 21 who drive with a blood-alcohol
concentration much less than that prohibited for persons over 21 years old. For
example, the Legislature has enacted what has been termed a “zero tolerance” law
(Coniglio v. Department of Motor Vehicles (1995) 39 Cal.App.4th 666, 673),
making it unlawful for a person under 21 years old to operate a motor vehicle with
as little as a 0.01 percent blood-alcohol concentration as measured by a
preliminary alcohol screening device (Veh. Code, §§ 23136, 13390). Violation of
this law carries civil penalties. An underage person who drives with a 0.05
percent blood-alcohol concentration is subject to a one-year loss of driving
privileges as well as other administrative liabilities (id., §§ 23140, 13202.5, subds.
(a) & (d)(4), 13352.6; see also id., § 23224 [possession of alcoholic beverages by
an underage driver].) A driver 21 years old or older, by contrast, is not subject to
criminal penalties until his or her blood-alcohol concentration rises to 0.08 percent
or more. (Id., § 23152, subd. (b).) Irrespective of his or her blood-alcohol
concentration, of course, a person of any age is subject to criminal penalties if he
or she drives while “under the influence of any alcoholic beverage.” (Id., § 23152,
subd. (a).)
Specifically addressing the circumstance where an individual purchases
alcohol for an underage person, section 25658(c) makes such purchase punishable
where the underage person, as a consequence of consuming the alcohol, causes
great bodily injury or death to anyone. Though just a misdemeanor, the offense is
punishable by imprisonment in a county jail for a minimum of six months, by a
fine of up to $1,000, or both. (§ 25658, subd. (e)(3).)
Section 25658(c) does not explicitly require that the offender have
knowledge, intent, or some other mental state when purchasing the alcoholic
6
beverage, and this lacuna forms the basis of the present dispute. The question is
whether we should construe the statute to require some mental state as a necessary
element of the crime. Preliminary to that question is a determination of what acts
the section prohibits, for if petitioner’s actions did not violate section 25658(c), his
knowledge or mental state would be irrelevant.
B. What Acts Does Section 25658(c) Prohibit?
To determine the meaning of section 25658(c), we look to the intent of the
Legislature in enacting the law, “being careful to give the statute’s words their
plain, commonsense meaning. [Citation.] If the language of the statute is not
ambiguous, the plain meaning controls and resort to extrinsic sources to determine
the Legislature’s intent is unnecessary.” (Kavanaugh v. West Sonoma County
Union High School Dist. (2003) 29 Cal.4th 911, 919.) Additionally, we must
interpret section 25658(c) in context with the entire statute and the statutory
scheme. (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 743.)
Section 25658(c) provides in full: “Any person who violates subdivision
(a) by purchasing an alcoholic beverage for a person under the age of 21 years and
the person under the age of 21 years thereafter consumes the alcohol and thereby
proximately causes great bodily injury or death to himself, herself, or any other
person, is guilty of a misdemeanor.” Subdivision (a), in turn, states that “every
person who sells, furnishes, gives, or causes to be sold, furnished, or given away,
any alcoholic beverage to any person under the age of 21 years is guilty of a
misdemeanor.” Consequently, subdivision (c) prohibits the selling, furnishing or
giving away of alcohol to an underage person, but only in the circumstance therein
specified, namely, by “purchasing” such beverage “for” an underage person. Only
persons who (1) furnish or give away alcoholic beverages, (2) by purchasing such
beverages, (3) for an underage person can be guilty of violating section 25658(c).
7
Section 25658(c) plainly embraces the situation in which an underage
person, loitering in front of a liquor store, asks an approaching adult to buy
alcoholic beverages for him or her, commonly known as the “shoulder tap”
situation (see Yu v. Alcoholic Bev. etc. Appeals Bd. (1992) 3 Cal.App.4th 286, 293
[describing how “minors tap adults on the shoulder” as they enter a market and
“get them to buy liquor for the minors”]) or, more colloquially, “shoulder tapping”
(http://www.urbandictionary.com/define.php?term=shoulder+tapping [as of
Aug. 23, 2004]). In such situations, that the buyer “purchas[ed] an alcoholic
beverage for a person under the age of 21 years” (italics added) in violation of
section 25658(c) is not open to doubt. Used in this sense, the statutory phrase
“purchas[e] . . . for” means the offender must stand in the shoes of the underage
person and act as a buyer by proxy; the word “for” in this case means “in place
of.” (Webster’s 3d New Internat. Dict. (2002) p. 886, col. 2 [giving example of
definition 5a: “go to the store [for] me”].)
That the Legislature’s attention was focused on the phenomenon of
shoulder tapping when it enacted section 25658(c) is clear from the legislative
history. (In re J. W. (2002) 29 Cal.4th 200, 211 [“To determine the purpose of
legislation, a court may consult contemporary legislative committee analyses of
that legislation, which are subject to judicial notice”].) Subdivision (c) of section
25658 began as Assembly Bill No. 2029 (1997-1998 Reg. Sess.), introduced by
Assemblyman Keeley on February 18, 1998. When the bill was introduced in the
Assembly Committee on Public Safety on April 14, 1998, the author’s comments
were incorporated into the bill’s analysis: “ ‘Last July, a tragedy occurred in the
district I represent which brought to my attention the high level of access that
minors have to alcohol. Three minors died in a drunk driving accident, in which
the driver, a minor, had consumed alcohol that was purchased for him by an adult.
The adult served 30 days in a county jail and the driver of the car is serving an
8
eight-year sentence in state prison. [¶] According to the United Way, nationwide,
62% of 12th graders have been drunk. In Santa Cruz County alone, 95% of 11th
graders say that they could easily obtain alcohol if they wanted to. One of the top
ways in which minors gain access to alcohol is by ‘shoulder tapping,’ or asking an
adult, often in front of a liquor store, to purchase alcohol for a minor. [¶] Adults
who do this must be held responsible for their actions. The intention of
[Assembly Bill No.] 2029 is to provide an effective deterrent to adults who are
irresponsible enough to buy alcohol for minors.’ ” (Assem. Com. on Public
Safety, Analysis of Assem. Bill No. 2029 (1997-1998 Reg. Sess.) Apr. 14, 1998,
italics added.) The Superintendent of the San Lorenzo Unified School District
provided a similar argument in support of the bill. (Ibid.) Assemblyman Keeley’s
statement was later included in the state Senate’s bill analysis. (Sen. Com. on
Public Safety, Analysis of Assem. Bill No. 1204 (1997-1998 Reg. Sess.) June 23,
1998.)4 No contrary statements of intent appear in any of the legislative history of
these bills.
Whether the statute is limited to the shoulder tap situation or embraces
other circumstances is a more difficult question. The archetypal shoulder tap
scenario involves strangers, a request from an underage person, a business
establishment that sells alcohol, and no intent on the buyer’s part to share in
drinking the purchased beverage. But does the statute apply when, for example, a
parent, without solicitation, goes to a grocery store and buys beer for her underage
son? In that hypothetical situation, as apparently in the instant case, no actual
request to purchase the alcohol is made. Or does the statute apply when an adult
4
By this time, Assembly Bill No. 2029 had been incorporated into Assembly
Bill No. 1204 for technical procedural reasons.
9
attending a baseball game announces he is going to the concession stand and at the
request of an underage friend brings him back a beer? Although that situation
involves a request to purchase, the participants (as in this case) are not strangers.
Further, does section 25658(c) apply if an adult purchases beer for himself but
days later gives one to an underage guest? In that case, no intent to purchase for a
third party exists at the time of sale, but the purchaser later provides the alcohol to
an underage person. Finally, does the statute apply to the social party host who
purchases alcoholic beverages generally for a party but not for any particular
guest? In that situation, the host certainly purchased the beverages for the party,5
but did he do so for a particular underage guest?
In resolving the meaning of section 25658(c), we must be careful not to add
requirements to those already supplied by the Legislature. (Robert F. Kennedy
Medical Center v. Belshé (1996) 13 Cal.4th 748, 756.) “Where the words of the
statute are clear, we may not add to or alter them to accomplish a purpose that
does not appear on the face of the statute or from its legislative history.” (Burden
v. Snowden (1992) 2 Cal.4th 556, 562.) Here, although the Legislature was
focused on the shoulder tap scenario, the language of section 25658(c) is not so
limited. Section 25658(c) imposes no requirement that the underage person make
a request to a proxy to buy alcohol, nor that the two principal actors be unknown
to each other. Nor is there a statutory requirement that the underage person wait
outside the place of sale or that the buyer have no intention to share the beverage.
5
In fact, party guest Szalay purchased some of the beer, and petitioner’s wife
purchased the remainder, at petitioner’s request. Presumably petitioner’s
culpability as a purchaser of intoxicating beverages flows from his status as an
aider and abettor, an issue we need not decide here inasmuch as he essentially
entered a “slow plea” of guilty by submitting the case on the police report.
10
The statute requires only that the offender “purchas[e]” an alcoholic beverage
“for” an underage person. That event can occur in a variety of settings. In short,
section 25658(c) embraces more than merely shoulder tapping.
Nevertheless, some limits are apparent when we consider section 25658(c)
together with section 25658(a). (See Renee J. v. Superior Court, supra, 26 Cal.4th
at p. 743.) As indicated, subdivision (a) of section 25658 sweeps more broadly
than does subdivision (c), criminalizing the selling, furnishing, or giving of
alcoholic beverages “to any person under the age of 21” (italics added), whereas
subdivision (c) criminalizes the violation of subdivision (a) “by purchasing an
alcoholic beverage for a person under the age of 21 years” (italics added).
Viewing together these two subdivisions of the same statute, it is apparent the acts
prohibited by subdivision (c) involve a subset of the universe of possible situations
in which one might violate subdivision (a). The Legislature’s use of the phrase
“purchas[e] . . . for” delineates a smaller group of prohibited actions by identifying
specific goal-directed behavior by the purchaser of alcoholic beverages, involving
an identified and particular underage person. In other words, to violate section
25658(c), one must not only furnish alcohol to an underage person, one must
purchase the alcohol for that person.
Although section 25658(a) clearly embraces the social party host (because
such persons furnish or give away alcoholic beverages to their guests), the
generalized actions of the typical social party host, providing libations for his or
her guests, do not run afoul of the more specific section 25658(c) because, as a
general matter, such hosts cannot be said to have purchased alcohol “for” any
11
particular guest.6 Although a social host could be said to have purchased alcoholic
beverages for every one of his or her guests, such an interpretation would be
unreasonable, as in that case, “purchase for” would mean the same as “furnish to,”
blurring the distinction between the two subdivisions. As used in section
25658(c), the term “for” is “used as a function word to indicate the person . . . that
something is to be delivered to.” (Webster’s 3d New Internat. Dict., supra, p. 886,
col. 2 [giving example of definition 3d: “any letters [for] me”].)
In light of the plain meaning of the statutory language, we conclude section
25658(c) applies to any situation in which an individual purchases alcoholic
beverages for an underage person. This includes, but is not limited to, the buyer-
by-proxy and shoulder tap scenarios. We now consider whether section 25658(c),
so interpreted, requires proof of some mental state such as knowledge of age.
C. Knowledge of Age
1. Section 25658(a)
Because section 25658(c) describes a subset of actions prohibited by
section 25658(a),7 if subdivision (a) requires the People to prove a violator knew
the age of the person to whom alcohol was furnished, such proof would also be
required to show a violation of subdivision (c). Conversely, if subdivision (a) is a
strict liability offense, lacking any knowledge requirement, that fact would weigh
heavily in our determination whether subdivision (c) requires proof of knowledge.
6
We thus disagree with the People’s position, stated at oral argument, that to
ensure one does not violate section 25658(c), a social host can simply choose not
to serve alcoholic beverages.
7
Of course, subdivision (c) has the additional requirement that the underage
person actually consume the alcohol “and thereby proximately causes great bodily
injury or death to himself, herself, or any other person.” Strictly speaking, then,
subdivision (c) is not a lesser included offense of subdivision (a).
12
We thus consider whether section 25658(a) requires such proof. We conclude it
does not.
For criminal liability to attach to an action, the standard rule is that “there
must exist a union, or joint operation of act and intent, or criminal negligence.”
(Pen. Code, § 20.) “[T]he requirement that, for a criminal conviction, the
prosecution prove some form of guilty intent, knowledge, or criminal negligence
is of such long standing and so fundamental to our criminal law that penal statutes
will often be construed to contain such an element despite their failure expressly to
state it. ‘Generally, “ ‘[t]he existence of a mens rea is the rule of, rather than the
exception to, the principles of Anglo-American criminal jurisprudence.’ . . .”
[Citation.] In other words, there must be a union of act and wrongful intent, or
criminal negligence. [Citations.] “So basic is this requirement that it is an
invariable element of every crime unless excluded expressly or by necessary
implication.” ’ ” (In re Jorge M. (2000) 23 Cal.4th 866, 872 (Jorge M.); see
1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 1, pp. 198-199.)
The prevailing trend in the law is against imposing criminal liability
without proof of some mental state where the statute does not evidence the
Legislature’s intent to impose strict liability. (People v. Simon (1995) 9 Cal.4th
493, 521; Liparota v. United States (1985) 471 U.S. 419, 426 [extension of strict
liability crimes disfavored]; see 1 Witkin & Epstein, Cal. Criminal Law, supra,
Elements, § 18, p. 223 [examples given of strict liability crimes are not “indicative
of a trend. Indeed, the opposite appears to be true”].)
“Equally well recognized, however, is that for certain types of penal laws,
often referred to as public welfare offenses, the Legislature does not intend that
any proof of scienter or wrongful intent be necessary for conviction. ‘Such
offenses generally are based upon the violation of statutes which are purely
regulatory in nature and involve widespread injury to the public. [Citation.]
13
“Under many statutes enacted for the protection of the public health and safety,
e.g., traffic and food and drug regulations, criminal sanctions are relied upon even
if there is no wrongful intent. These offenses usually involve light penalties and
no moral obloquy or damage to reputation. Although criminal sanctions are relied
upon, the primary purpose of the statutes is regulation rather than punishment or
correction. The offenses are not crimes in the orthodox sense, and wrongful intent
is not required in the interest of enforcement.” ’ ” (Jorge M., supra, 23 Cal.4th at
p. 872.)8 Alcohol-related offenses, such as driving with a prohibited blood-
alcohol concentration (Ostrow v. Municipal Court (1983) 149 Cal.App.3d 668)
and employment of a minor at an establishment selling alcoholic beverages (Kirby
v. Alcoholic Bev. etc. App. Bd. (1968) 267 Cal.App.2d 895), have been found to
constitute such public welfare offenses.
We found in Jorge M., supra, 23 Cal.4th 866, a “useful” analytical
framework “where the legislative intent is not readily discerned from the text [of
the law] itself.” (Id. at p. 873.) We there explained that “courts have commonly
taken into account . . . : (1) the legislative history and context; (2) any general
provision on mens rea or strict liability crimes; (3) the severity of the punishment
provided for the crime (‘Other things being equal, the greater the possible
punishment, the more likely some fault is required’); (4) the seriousness of harm to
8
Examples of public welfare offenses for which criminal liability attaches in
the absence of any mens rea include improperly labeling and storing hazardous
waste (Health & Saf. Code, § 25190; see People v. Matthews (1992) 7 Cal.App.4th
1052, 1057-1058), sale of mislabeled motor oil (Bus. & Prof. Code, § 13480;
People v. Travers (1975) 52 Cal.App.3d 111), sale of food contaminated with
fecal matter (People v. Schwartz (1937) 28 Cal.App.2d Supp. 775), sale of
shortweighted food (In re Marley (1946) 29 Cal.2d 525), and use of an unlicensed
poison (Aantex Pest Control Co. v. Structural Pest Control Bd. (1980) 108
Cal.App.3d 696).
14
the public that may be expected to follow from the forbidden conduct; (5) the
defendant’s opportunity to ascertain the true facts (‘The harder to find out the
truth, the more likely the legislature meant to require fault in not knowing’);
(6) the difficulty prosecutors would have in proving a mental state for the crime
(‘The greater the difficulty, the more likely it is that the legislature intended to
relieve the prosecution of that burden so that the law could be effectively
enforced’); [and] (7) the number of prosecutions to be expected under the statute
(‘The fewer the expected prosecutions, the more likely the legislature meant to
require the prosecuting officials to go into the issue of fault’).” (Ibid.)
We need not address all of the Jorge M. factors because section 25658(a)
falls easily into the category of crimes courts historically have determined to be
public welfare offenses for which proof of knowledge or criminal intent is
unnecessary. First, the statute does not expressly require a mental state. More to
the point, the statute is closely akin to those public welfare offenses that “ ‘are
purely regulatory in nature and involve widespread injury to the public.’ ” (Jorge
M., supra, 23 Cal.4th at p. 872.) Like those offenses, section 25658(a) is more
regulatory than penal, addressed more to the public welfare than to the individual
punishment of the transgressor. As one court has opined when addressing the
purpose of section 25658: “[I]t may be assumed that the provisions prohibiting
certain transactions with minors are designed to protect them from harmful
influences.” (Lacabanne Properties, Inc. v. Dept. Alcoholic Bev. Control (1968)
261 Cal.App.2d 181, 188; accord, Provigo Corp. v. Alcoholic Beverage Control
Appeals Bd., supra, 7 Cal.4th at p. 567.)
The statute’s goal of avoiding a broader societal harm rather than imposing
individual punishment is illustrated by the light penalties prescribed for its
violation. Violation of section 25658(a) imposes a $250 fine, between 24 and 32
hours of community service, or a combination thereof. (§ 25658, subd. (e)(1).)
15
For a first offense involving a minor and not simply an underage person, the
penalty is a $1,000 fine and at least 24 hours of community service. (Id., subd.
(e)(2).) No violation of section 25658(a) results in incarceration of any length.
Thus, as for other public welfare offenses, section 25658(a) “ ‘ “involve[s] light
penalties and no moral obloquy or damage to reputation. Although criminal
sanctions are relied upon, the primary purpose of the statutes is regulation rather
than punishment or correction.” ’ ” (Jorge M., supra, 23 Cal.4th at p. 872.) The
light penalties for violating section 25658(a) strongly suggest the Legislature has
dispensed with any requirement that the People prove knowledge or some other
criminal intent.
Petitioner argues section 25658(a) must be interpreted to require knowledge
of age despite any explicit statutory requirement, citing Brockett v. Kitchen Boyd
Motor Co. (1972) 24 Cal.App.3d 87. Brockett concerned civil, not criminal,
liability. In passing, it stated about section 25658(a): “If one wilfully disobeys the
law and knowingly furnishes liquor to a minor with knowledge that the minor is
going to drive a vehicle on the public highways, as alleged in this case, he must
face the consequences.” (Brockett, supra, at p. 93, italics added.) Not addressed
in Brockett is whether one must face the same consequences absent such intent or
knowledge. An opinion, of course, is not authority for propositions not
considered. (Flannery v. Prentice (2001) 26 Cal.4th 572, 581.) In any event,
Brockett relied extensively on Vesely v. Sager (1971) 5 Cal.3d 153, which
subsequently was statutorily overruled. (See Bus. & Prof. Code, § 25602, subd.
(c); Civ. Code, § 1714, subd. (b).)
More on point is Provigo Corp. v. Alcoholic Beverage Control Appeals Bd.,
supra, 7 Cal.4th at page 569, where this court held as to seller-licensees that “the
laws against sales to minors [citing Cal. Const., art. XX, § 22; Bus. & Prof. Code,
§ 25658(a)] can be violated despite the seller’s (or its agents’) lack of knowledge
16
of the purchaser’s minority.” Provigo, then, at least suggests section 25658(a)
also does not require proof of knowledge or intent by other persons who provide
alcohol to underage persons. We conclude that to obtain a conviction under
section 25658(a), the People need not prove the offender knew the person to
whom he or she furnished, sold or gave an alcoholic beverage was in fact not yet
21 years old.
2. Section 25658(c)
Whether subdivision (c) of section 25658 dispenses with a proof of
knowledge requirement is a more complex question. Unlike with subdivision (a),
three factors mentioned in Jorge M., supra, 23 Cal.4th at page 873—the legislative
history and context of the statute, the severity of the punishment, and the
seriousness of the harm to the public—have substantial application in the analysis
for subdivision (c). Nevertheless, we similarly conclude the People need not
prove knowledge or intent to establish a violation of subdivision (c).
First and foremost, the legislative history of section 25658(c) strongly
suggests the Legislature intended to impose guilt without a showing the offender
knew the age of the person for whom alcohol was purchased. As discussed, ante,
section 25658(c) was an amendment to the existing statute, responding to an
incident in Santa Cruz County in which someone over 21 years old purchased
alcoholic beverages for an underage person who thereafter became intoxicated and
crashed his car, killing three minors. As originally proposed, Assembly Bill No.
2029 would have proscribed “furnish[ing]” an alcoholic beverage to a “minor” if
the minor then caused death or great bodily injury. This original version of the bill
made the new crime punishable as either a felony or a misdemeanor, commonly
called a wobbler. (Assem. Bill No. 2029 (1997-1998 Reg. Sess.) as introduced
Feb. 18, 1998.) The bill was amended in the Assembly to substitute the phrase
17
“purchasing . . . for” in the place of “furnishing . . . to.” The amendment also
deleted reference to a “minor” and replaced it with “a person under the age of 21
years.” That the crime could be a felony punishable in state prison remained
unchanged. (Assem. Amend. to Assem. Bill No. 2029 (1997-1998 Reg. Sess.)
Mar. 26, 1998.)
The bill was then referred to the Assembly Committee on Public Safety.
Comments to the bill include this telling one: “This bill requires little or no intent
on the part of the purchaser of alcohol for underage persons. There is no
requirement that GBI [great bodily injury] or death be foreseeable to the
purchaser, other than the general knowledge that alcohol can sometimes lead to
dangerous situations. As is stated above, a commercial vendor is only found
civilly liable and guilty of a misdemeanor if he or she sells to an obviously
intoxicated minor. [¶] Should this bill be amended to provide that the purchaser
must know, or reasonably should have known, that GBI was a likely result of the
purchase of the alcohol for the underage person?” (Assem. Com. on Public
Safety, Analysis of Amend. to Assem. Bill No. 2029 (1997-1998 Reg. Sess.)
Apr. 14, 1998, italics added, underscoring in original.)
Before the full Assembly a week later, Assembly Bill No. 2029 was again
amended. Proposed section 25658(c) was then to read in pertinent part: “Any
person who violates subdivision (a) by purchasing an alcoholic beverage for a
person under the age of 21 years and the person under the age of 21 years
thereafter consumes the alcohol and thereby proximately causes great bodily
injury to himself, herself, or any other person is guilty of a public offense
punishable by imprisonment in a county jail not to exceed one year or in state
prison. In order to be punishable by imprisonment in the state prison pursuant to
this subdivision: [¶] (1) The purchaser shall have known or reasonably should
have known that the person for whom he or she was purchasing was under the age
18
of 21 years . . . .” (Assem. Amend. to Assem. Bill No. 2029 (1997-1998 Reg.
Sess.) Apr. 21, 1998, italics added.)
As the Legislative Counsel’s Digest for this proposed amendment
explained, “[t]he bill would require that to be punishable as a felony the purchaser
must have known or reasonably should have known that the person for whom he
or she was purchasing was under the age of 21 years . . . .” (Legis. Counsel’s
Dig., Assem. Bill No. 2029 (1997-1998 Reg. Sess.) Apr. 21, 1998.)
The substance of Assembly Bill No. 2029 was then added to Assembly Bill
No. 1204, then before the state Senate. (Sen. Amend. to Assem. Bill No. 1204
(1997-1998 Reg. Sess.) June 3, 1998.) In the Senate Committee on Public Safety,
a question was raised concerning the foreseeability of the injury caused by the
underage drinker. “As the opposition notes, this provision would provide a
potential prison sentence for an act not directly caused by the person. A 21 year
old college student who gives a 20 year old friend a beer could be subject to an
increased misdemeanor penalty if that 20 year old friend were to trip down a flight
of stairs after drinking the beer and breaks his/her arm.” (Sen. Com. on Public
Safety, Analysis of Amend. to Assem. Bill No. 1204 (1997-1998 Reg. Sess.) June
3, 1998.) “SHOULD WE PUNISH ONE PERSON FOR THE
UNFORESEEABLE SUBSEQUENT BEHAVIOR OF ANOTHER BECAUSE
THE FIRST PERSON COMMITTED AN OFFENSE?” (Ibid.)
Although a concern was raised in the Senate committee about the
foreseeability of the injury, no question was raised about the felony provision or
its requirement that the offender knew or should have known the age of the person
for whom he was buying alcohol. Nevertheless, Assembly Bill No. 1204 was
thereafter amended to delete the felony option together with its intent
requirement, leaving section 25658(c) as a misdemeanor provision only, with no
explicit intent requirement. (Sen. Amend. to Assem. Bill No. 1204 (1997-1998
19
Reg. Sess.) June 30, 1998.) It was this version that was eventually passed,
enrolled, sent to the Governor, and signed into law.9
The Court of Appeal below reasoned: “A review of this history shows that
the Legislature considered incorporating an express mental state element into the
statute when the subdivision could be prosecuted as a felony. It may be inferred
that the Legislature intended the misdemeanor to be a strict liability statute when it
deleted the felony provision without moving the requirement of a specific mental
state into the remaining misdemeanor portion of subdivision (c).” While this
inference is strong, petitioner contends the appellate court’s view of the legislative
history is simplistic because it fails to view the totality of the legislative history,
which indicates a legislative concern with not only the potential offender’s
knowledge of the drinker’s age, but also with his or her subjective awareness of
the foreseeability of the harm caused by the drinker.
As our recitation of the legislative history demonstrates, the Legislature
was, at various points, concerned both with the possibility that one could be
convicted of a felony under the new law even though unaware of the age of the
person for whom alcohol was bought and with the possibility the purchaser could
be convicted although unaware the drinker intended to become intoxicated or to
drive. But that the Legislature may have entertained multiple concerns about the
9
As the Court of Appeal explained: “The substance of [Assembly Bill No.]
1204 was then incorporated into a related bill proceeding through the Senate,
[Senate Bill No.] 1696, to ensure that its provisions would not be super[s]eded if
both bills were enacted and [Senate Bill No.] 1696 was chaptered last. (Legis.
Counsel’s Dig., Sen. Bill No. 1696, Stats. 1998 (1997 - 1998 Reg. Sess.).)
([Senate Bill] 1696) In fact, that is what happened. [Assembly Bill No.] 1204 was
chaptered on September 14, 1998. [Senate Bill] 1696 was chaptered on
September 18, 1998. Section 25658 was amended to include subdivision (c) by
Senate Bill 1696.”
20
proposed law does not undermine the obvious inference that in deleting the felony
option, with its attached intent requirement, the Legislature intended to leave the
new crime a misdemeanor only, with no intent requirement.
Interpretation of section 25658(c) as a strict liability offense is bolstered by
a consideration of other statutes addressing related issues, all of which appear in
the same portion of the Business and Professions Code as does section 25658.
(See art. 3 [“Women and Minors”], ch. 16 [“Regulatory Provisions”], div. 9
[“Alcoholic Beverages”].) For example, section 25658.2, subdivision (a)
provides: “A parent or legal guardian who knowingly permits his or her child . . .
under the age of 18 years, to consume an alcoholic beverage . . . at the home of the
parent or legal guardian [under certain conditions] is guilty of [a] misdemeanor.”
(Italics added.) Similarly, section 25657, subdivision (b) provides: “In any place
of business where alcoholic beverages are sold to be consumed upon the premises,
to employ or knowingly permit anyone to loiter in or about said premises for the
purpose of begging or soliciting any patron or customer of, or visitor in, such
premises to purchase any alcoholic beverages for the one begging or soliciting [is
guilty of a misdemeanor].” (Italics added.) Finally, section 25659.5, subdivision
(d) provides: “Any purchaser of keg beer who knowingly provides false
information as required by subdivision (a) is guilty of a misdemeanor.” (Italics
added.)
Because the wording of these statutes shows the Legislature if it wishes
knows how to express its intent that knowledge be an element of an offense, the
absence of such a requirement in section 25658(c) indicates it intended no such
requirement. (People v. Murphy (2001) 25 Cal.4th 136, 159.) “It is a settled rule
of statutory construction that where a statute, with reference to one subject
contains a given provision, the omission of such provision from a similar statute
concerning a related subject is significant to show that a different legislative intent
21
existed with reference to the different statutes.” (People v. Norwood (1972) 26
Cal.App.3d 148, 156.) In sum, the legislative history and context of section
25658(c) tilts heavily in favor of criminal liability without proof of knowledge or
intent.
The second factor we find significant is the severity of the punishment.
(Jorge M., supra, 23 Cal.4th at p. 873.) The greater the punishment for a
particular crime, the more likely the Legislature intended to require the state to
prove an offender acted with some culpable mental state. “For crimes which
impose severe punishment, ‘. . . the usual presumption that a defendant must know
the facts that make his conduct illegal should apply.’ (Staples v. United States
[(1994)] 511 U.S. [600,] 619.)” (People v. Coria (1999) 21 Cal.4th 868, 878.)
For example, we reasoned in Jorge M. that the “Legislature’s choice of potential
felony [rather than misdemeanor] punishment . . . reinforces the presumption
expressed by [Penal Code] section 20 and suggests that correspondingly strong
evidence of legislative intent is required to exclude mens rea from the offense.”
(Jorge M., supra, at p. 880.)
Section 25658(c) is punishable as a misdemeanor, not a felony. In general,
punishment for a misdemeanor cannot exceed confinement in a county jail for up
to six months, a fine not to exceed $1,000, or both. (Pen. Code, § 19.) The
maximum confinement for a misdemeanor is one year in jail. (Id., § 19.2.) A
violation of section 25658(c), though not a felony, provides for a punishment
greater than that prescribed for the typical misdemeanor because a violator “shall
be punished by imprisonment in a county jail for a minimum term of six months
not to exceed one year, by a fine not exceeding one thousand dollars ($1,000), or
by both imprisonment and fine.” (§ 25658, subd. (e)(3), italics added.)
Although the heightened penalty tends to distinguish section 25658(c) from
the ordinary misdemeanor and suggests we should imply a mental element to this
22
crime, a higher than normal penalty does not necessarily preclude a crime from
being a public welfare offense; the severity of the punishment is, instead, a factor
in the overall calculus in determining whether proof of a mental element must be
implied. Here, the punishment falls somewhere in the middle, greater than that
prescribed for the typical misdemeanor, but less than that for the typical wobbler
or felony.
In addition to the potential length of possible incarceration, petitioner
contends the reputational injury and personal disgrace he will suffer should his
conviction for violating section 25658(c) be allowed to stand are factors relevant
to determining the severity of the punishment. We agree. Discussing this issue,
Justice Traynor opined for this court: “Under many statutes enacted for the
protection of the public health and safety, e.g., traffic and food and drug
regulations, criminal sanctions are relied upon even if there is no wrongful intent.
These offenses usually involve light penalties and no moral obloquy or damage to
reputation. Although criminal sanctions are relied upon, the primary purpose of
the statutes is regulation rather than punishment or correction. The offenses are
not crimes in the orthodox sense, and wrongful intent is not required in the interest
of enforcement.” (People v. Vogel (1956) 46 Cal.2d 798, 801, fn. 2, italics added
(Vogel), quoted in Jorge M., supra, 23 Cal.4th at p. 872.) At issue in Vogel was
the crime of bigamy. Justice Traynor further explained: “The severe penalty for
bigamy [then up to a $5,000 fine, confinement in county jail, or in state prison for
up to 10 years], the serious loss of reputation conviction entails, the infrequency
of the offense, and the fact that it has been regarded for centuries as a crime
involving moral turpitude, make it extremely unlikely that the Legislature meant to
include the morally innocent to make sure the guilty did not escape.” (Vogel,
supra, at p. 804, fn. omitted, italics added.)
23
More recently, the Court of Appeal addressed the question whether the
crime of misdemeanor animal cruelty (Pen. Code, § 597f, subd. (a)) required a
showing of either civil or criminal negligence. (People v. Speegle (1997) 53
Cal.App.4th 1405.) The court found the reputational injury associated with the
criminal mistreatment and neglect of animals to justify the higher, criminal
negligence standard. “In our society, those who mistreat animals are the deserved
object of obloquy, and their conduct is wrongful of itself and not just as a matter
of legislative declaration.” (Id. at p. 1415.)
Like the bigamist in Vogel, supra, 46 Cal.2d 798, and the defendant who
kept, neglected, and starved 200 poodles in People v. Speegle, supra, 53
Cal.App.4th 1405, a person who purchases alcoholic beverages for an underage
person, enabling that person to become intoxicated and to cause “great bodily
injury or death,” may expect severe censure from the general public. That drunk
drivers, and especially underage drunk drivers, cause death and destruction on our
highways is common knowledge, and anyone contributing to that societal tragedy
would suffer significant reputational injury. Considering the heightened
misdemeanor penalty together with the societal condemnation a violator of section
25658(c) would encounter, we conclude the severity of the punishment weighs in
favor of requiring some intent element for section 25658(c).
The third factor we find particularly pertinent is the seriousness of the harm
or injury to the public. (Jorge M., supra, 23 Cal.4th at p. 873.) The more serious
and widespread the expected harm from the prohibited conduct, the more likely
the Legislature intended to create a public welfare offense for which no proof of
knowledge or intent is required. We explained the significance of this factor in
Jorge M.: “The AWCA [Assault Weapons Control Act] is a remedial law aimed
at protecting the public against a highly serious danger to life and safety. The
Legislature presumably intended that the law be effectively enforceable, i.e., that
24
its enforcement would actually result in restricting the number of assault weapons
in the hands of criminals and the mentally ill. In interpreting the law to further the
legislative intent, therefore, we should strive to avoid any construction that would
significantly undermine its enforceability. This is not to suggest this court would
or should read any element out of a criminal statute simply to ease the People’s
burden of proof. But, when a crime’s statutory definition does not expressly
include any scienter element, the fact the Legislature intended the law to remedy a
serious and widespread public safety threat militates against the conclusion it also
intended impliedly to include in the definition a scienter element especially
burdensome to prove.” (Id. at pp. 880-881.)
The harm that section 25658(c) aims to avoid is the death and great bodily
injury of underage drivers, their passengers and other collateral victims. Unlike
section 25658(a), which criminalizes the mere furnishing, selling or giving of
alcohol to an underage person, section 25658(c) includes two additional and
significant elements: consumption of the beverage and serious injury or death.
One may fairly conclude the law addresses a “serious and widespread public
safety threat.” (Jorge M., supra, 23 Cal.4th at p. 881.) Implying an intent or
knowledge requirement would necessarily undermine the statute’s enforceability
and reduce its effectiveness in reducing the number of deaths and injuries
associated with underage drinking. We conclude this factor militates against
inferring an intent requirement for section 25658(c).
Considering these factors together, we find the legislative history of section
25658(c), its context, and the seriousness of the harm to the public particularly
persuasive in demonstrating that no knowledge of age requirement should be
imposed. Although the public obloquy for violation of the statute and the
minimum of six months in jail for its violation result in a more severe penalty than
normal for a misdemeanor offense, section 25658(c) remains a misdemeanor, not a
25
felony nor even a wobbler. On balance, we are convinced the legislative history
provides the strongest evidence of legislative intent. That history indicates the
Legislature intended that a conviction of violating section 25658(c) does not
require a showing the offender had knowledge of the imbiber’s age or other
criminal intent. Accordingly, although the People must prove an accused
“purchas[ed]” an alcoholic beverage “for” an underage person, the People need
not also prove the accused knew that person was under 21 years of age.
D. The Mistake of Fact as to Age Defense
Although the People need not prove knowledge of age in order to establish
a violation of section 25658(c), the question remains whether petitioner was
entitled to raise a mistake of fact defense concerning Turpin’s age. The Penal
Code sets forth the broad outlines of the mistake of fact defense. Section 26 of
that code provides: “All persons are capable of committing crimes except [¶] . . .
[¶] Persons who committed the act or made the omission charged under an
ignorance or mistake of fact, which disproves any criminal intent.” Thus, for
example, in a case where a defendant was convicted of murder for shooting his
wife, but claimed he honestly believed the gun was not loaded, the trial court erred
by refusing to instruct the jury that a person who entertains “an honest and
reasonable belief in the existence of certain facts and circumstances which, if true,
would make such act and omission lawful, is not guilty of a crime.” (People v.
Goodman (1970) 8 Cal.App.3d 705, 709.)10 Similarly, in a case where a
defendant, charged with forcible rape and kidnapping, claimed a reasonable belief
that the victim consented, we held the jury should have been instructed on a
10
People v. Goodman, supra, 8 Cal.App.3d 705, was disapproved on another
ground in People v. Beagle (1972) 6 Cal.3d 441, 451-452.
26
mistake of fact because, if a reasonable yet mistaken belief in consent was proved,
the accused would not “possess the wrongful intent that is a prerequisite under
Penal Code section 20 to a conviction of either kidnapping . . . or rape by means of
force or threat.” (People v. Mayberry (1975) 15 Cal.3d 143, 155.)
As a general matter, however, a mistake of fact defense is not available
unless the mistake disproves an element of the offense. (People v. Parker (1985)
175 Cal.App.3d 818, 822; 1 Witkin & Epstein, Cal. Criminal Law, supra,
Defenses, § 39, p. 372.) Thus, in Parker, the defendant illegally entered a
structure allegedly believing it was a commercial building. Because the building
was in fact a residence, he was charged with and convicted of first degree
burglary. (Pen. Code, § 459.) On appeal, the appellate court rejected his
argument that the trial court had erred by failing to instruct the jury that his
mistaken belief the building was an uninhabited structure constituted an
affirmative defense. (Parker, supra, at p. 821.) The appellate court reasoned that
because the prosecution was not required to prove a defendant knew the building
entered was a residential one in order to convict of burglary, “ignorance
concerning the residential nature of a building does not render a defendant’s
unlawful entry into it with a felonious intent innocent conduct.” (Id. at pp. 822-
823.)
Of course, murder (People v. Goodman, supra, 8 Cal.App.3d 705), rape
(People v. Mayberry, supra, 15 Cal.3d 143) and burglary (People v. Parker, supra,
175 Cal.App.3d 818) all require proof of criminal intent, whereas public welfare
offenses such as a violation of section 25658(c) do not. We addressed the mistake
of fact defense for public welfare offenses in People v. McClennegen (1925) 195
Cal. 445, which involved a joint prosecution of several defendants for violating the
state’s antisyndicalism statute. It was alleged the defendants conspired to effect a
change in the “industrial ownership and control in the existing economic and
27
social system” and to “effect political changes in this state and in the United States
of America by means and methods denounced by [the antisyndicalism] act.” (Id.
at p. 448.) Although we ultimately found the antisyndicalism act did not establish
a public welfare crime, we discussed the mental state required for such offenses,
which we denoted “statutory crimes.” “The commission of various acts are made
punishable under our criminal procedure, even though the doer be ignorant of the
fact that the doing of the act constitutes an offense. A mistake of fact, or a want of
intent, is not in every case a sufficient defense for the violation of a criminal
statute. Statutes enacted for the protection of public morals, public health, and the
public peace and safety are apt illustrations of the rule just announced. [Citations.]
. . . [¶] ‘. . . [T]herefore if a criminal intent is not an essential element of a
statutory crime, it is not necessary to prove any intent in order to justify a
conviction. Whether a criminal intent or guilty knowledge is a necessary element
of a statutory offense is a matter of construction to be determined from the
language of the statute, in view of its manifest purpose and design. There are
many instances in recent times where the Legislature in the exercise of the police
power has prohibited, under penalty, the performance of a specific act. The doing
of the inhibited act constitutes the crime, and the moral turpitude or purity of the
motive by which it was prompted and knowledge or ignorance of its criminal
character are immaterial circumstances on the question of guilt. The only fact to
be determined in these cases is whether the defendant did the act. In the interest of
the public the burden is placed upon the actor of ascertaining at his peril whether
his deed is within the prohibition of any criminal statute.’ ” (Id. at pp. 469-470,
italics added.) In other words, for public welfare offenses for which intent need
not be proved, a mistake of fact defense was unavailable.
People v. Schwartz, supra, 28 Cal.App.2d Supp. 775, illustrates the point.
That case involved the sale of impure or adulterated food, a public welfare
28
offense. The court there explained that the defendant “does not need to engage in
that business; but if he does engage in that business the law will not permit him to
evade his responsibility to the public, declared by law, by pleading ignorance of
the quality or contents of that which he may lawfully sell only if it is pure.” (Id. at
p. 778, italics added.) Similarly, in People v. Bickerstaff (1920) 46 Cal.App. 764,
a case involving the sale of a beverage with greater than 1 percent alcohol, “it is
not a defense for the defendant to prove that he did not know the liquor sold by
him contained the prohibited amount of alcohol.” (Id. at p. 771.)
Notwithstanding the foregoing, the modern trend is to require proof of
some criminal intent or knowledge in order to secure a criminal conviction.
(People v. Simon, supra, 9 Cal.4th at p. 521.) Vogel, supra, 46 Cal.2d 798, is
illustrative. In Vogel, the defendant was charged with bigamy in violation of
Penal Code section 281, which at that time provided that “[e]very person having a
husband or wife living, who marries any other person . . . is guilty of bigamy.”
The trial court rejected the defendant’s proffered evidence that he reasonably
believed his first wife had divorced him, citing People v. Kelly (1939) 32
Cal.App.2d 624, 625, which held that “[a] second marriage under an erroneous
assumption that the first marriage has been annulled or dissolved is not a defense
to a charge of bigamy.”
The Vogel court agreed the People need not establish the defendant knew
he was still married to his first wife, but need only prove he was in fact still
married to her. Nevertheless, we concluded the defendant was entitled to raise a
mistake of fact as an affirmative defense, explaining that he would not be “guilty
of bigamy, if he had a bona fide and reasonable belief that facts existed that left
him free to remarry.” (Vogel, supra, 46 Cal.2d at p. 801; see also People v. Stuart
(1956) 47 Cal.2d 167 [mistake of fact defense available to charge of selling
29
adulterated drug]; In re Marley, supra, 29 Cal.2d at p. 530 [suggesting but not
deciding mistake of fact defense available to charge of shortweighting].)
Most notable, perhaps, of this line of cases is People v. Hernandez (1964)
61 Cal.2d 529. In that case, the defendant was charged with statutory rape (now
called unlawful sexual intercourse; see Pen. Code, § 261.5), a crime that does not
require proof the defendant knew the prosecutrix’s age. The defendant claimed
“he had in good faith a reasonable belief that the prosecutrix was 18 years or more
of age” (Hernandez, supra, at p. 530), whereas in fact she was 17 years nine
months old. Since the 19th century the law had made the defense of mistake of
fact as to age unavailable for this crime. (People v. Ratz (1896) 115 Cal. 132, 134-
135.) In an example of an opinion’s venerability offering it no protection, this
court overruled Ratz and held the defendant was entitled to raise a defense of
mistake of fact. Citing Penal Code section 20 and Vogel, supra, 46 Cal.2d 798, we
stated: “We are persuaded that the reluctance to accord to a charge of statutory
rape the defense of a lack of criminal intent has no greater justification than in the
case of other statutory crimes, where the Legislature has made identical provision
with respect to intent. ‘ “At common law an honest and reasonable belief in the
existence of circumstances, which, if true, would make the act for which the
person is indicted an innocent act, has always been held to be a good defense. . . .
[I]t has never been suggested that these exceptions do not equally apply to the case
of statutory offenses unless they are excluded expressly or by necessary
implication.” ’ ” (Hernandez, supra, at pp. 535-536.)
These cases follow the modern trend away from imposing strict liability for
criminal offenses and to require some showing of knowledge or criminal intent,
even if only criminal negligence. (See Jorge M., supra, 23 Cal.4th at p. 887 [“the
People bear the burden of proving the defendant knew or should have known the
firearm possessed the characteristics bringing it within the” Assault Weapons
30
Control Act].) In addition to interpreting statutory language to require some
showing of criminal intent, as we did in Jorge M., we may permit a conviction
absent evidence of knowledge, but allow a defendant to raise a mistake of fact in
his defense, as in Vogel, supra, 46 Cal.2d 798, and People v. Hernandez, supra, 61
Cal.2d 529. Although by tradition (and due process) the People often have the
burden to prove knowledge or intent, shifting the burden to the defendant to prove
his lack of guilty or criminal intent is in some cases also permissible. Thus, for
example, addressing the crime of bigamy in Vogel, we explained that “guilty
knowledge” was “formerly a part of the definition of bigamy [but] was omitted
from [Penal Code] section 281 to reallocate the burden of proof on that issue in a
bigamy trial. Thus, the prosecution makes a prima facie case upon proof that the
second marriage was entered into while the first spouse was still living [citations],
and his bona fide and reasonable belief that facts existed that left the defendant
free to remarry is a defense to be proved by the defendant.” (Vogel, supra, at pp.
802-803, italics added, fn. omitted; see also People v. Taylor (2001) 93
Cal.App.4th 933, 952-953 (conc. & dis. opn. of Morrison, J.) [suggesting the same
reallocation of the burden of proving intent in a prosecution for possession of a
cane sword in violation of Pen. Code, § 12020, subd. (a)(1)].)
As in Vogel, supra, 46 Cal.2d 798, we conclude that, although the
prosecution need not prove an offender’s knowledge of age in order to establish a
violation of section 25658(c), petitioner was entitled to raise an affirmative
defense, for which he would bear the burden of proof, that he honestly and
reasonably believed Turpin was at least 21 years old. Recognizing the viability of
a mistake of fact defense is consistent with the modern trend away from strict
liability for criminal offenses as well as with Penal Code section 20 and the
statutory scheme of which Business and Professions Code section 25658(c) is but
a part. Article 3, chapter 16, division 9 of the Business and Professions Code
31
contains both section 25658(c) and 25660, and the two statutes must be construed
together. (Renee J. v. Superior Court, supra, 26 Cal.4th at p. 743.) Section
25660, relating to licensees, provides in pertinent part: “Proof that the defendant-
licensee, or his employee or agent, demanded, was shown and acted in reliance
upon such [described] bona fide evidence [of majority and identity] in any
transaction, employment, use or permission forbidden by Sections 25658, 25663
or 25665 shall be a defense to any criminal prosecution therefor or to any
proceedings for the suspension or revocation of any license based thereon.”
(Italics added.) Section 25660 thus specifically authorizes licensees to raise a
mistake of fact defense as to the age of a customer to whom alcohol was sold or
served. “Although a violation of section 25658 can occur despite the seller’s lack
of knowledge that the purchaser is under the age of 21, the seller’s liability is not
absolute because ‘the Legislature has furnished a procedure whereby he may
protect himself, namely, . . . section 25660 [allowing the seller to rely on bona fide
evidence of majority and identity].’ ” (Provigo Corp. v. Alcoholic Beverage
Control Appeals Bd., supra, 7 Cal.4th at pp. 564-565.)
Does section 25660 suggest the Legislature’s intent to permit a similar
defense to nonlicensees? We hold that it does. A contrary conclusion would lead
to an absurd result (see, e.g., In re J. W., supra, 29 Cal.4th at p. 210; City of Cotati
v. Cashman (2002) 29 Cal.4th 69, 77), to wit, while licensees, who may serve
alcoholic beverages to dozens or even hundreds of customers in a single night, can
demand, check and act in reliance on bona fide evidence of identity and age and
thereby enter a safe harbor, protected from criminal liability, a nonlicensee who
serves alcoholic beverages only occasionally and to just a few persons, and who
similarly demands, checks and acts in reliance on bona fide evidence of identity
and age, and may honestly and reasonably believe the person for whom he or she
purchased alcohol was over 21 years old, would absent a mistake of fact defense
32
be subject to criminal liability, punishable by a minimum of six months in jail.
(§§ 25658(c), 25658, subd. (e)(3).) The Legislature could not have intended this
disparity of treatment.
We conclude the trial court erred in refusing petitioner’s offer to prove he
honestly and reasonably believed Turpin was over 21 years old.
CONCLUSION
We reach the following conclusions: (1) Section 25658(c) is not limited to
the shoulder tap scenario, but applies whenever an offender purchases alcoholic
beverages for an underage person; (2) section 25658(c) does not apply in the
typical social party host situation, because the host does not purchase alcohol for
any particular guest; (3) the prosecution need not prove an offender knew (or
should have known) the age of the person to whom he or she furnished alcohol in
order to prove a violation of section 25658(a); (4) the prosecution need not prove
an offender knew (or should have known) the age of the person for whom he or
she purchased alcohol in order to prove a violation of section 25658(c); and (5) a
person charged with violating section 25658(c) may defend against the charge by
claiming an honest and reasonable belief that the person for whom he or she
purchased alcohol was 21 years of age or older. The defendant bears the burden of
proof for this affirmative defense.
Because the trial court refused to admit evidence that petitioner believed
Turpin was over 21 years old, it erred. The judgment of the Court of Appeal
denying the petition for writ of habeas corpus is reversed and the cause remanded
to that court. The Court of Appeal is directed to grant the petition for a writ of
habeas corpus, vacate the judgment of the Sacramento County Superior Court in
People v. Michael Lee Jennings, No. 00M07614, and remand the case to the
superior court for further proceedings. The clerk of the Court of Appeal is
directed to remit a certified copy of this opinion to the superior court for filing,
33
and respondent shall serve another copy thereof on the prosecuting attorney in
conformity with Penal Code section 1382, subdivision (a)(2). (See In re Gay
(1998) 19 Cal.4th 771, 830.)
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
BROWN, J.
MORENO, J.
34
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion In re Jennings on Habeas Corpus
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 106 Cal.App.4th 869
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S115009Date Filed: August 23, 2004
__________________________________________________________________________________
Court:
SuperiorCounty: Sacramento
Judge: Gail D. Ohanesian
__________________________________________________________________________________
Attorneys for Appellant:
Rothschild, Wishek & Sands, Kelly Lynn Babineau and M. Bradley Wishek for Petitioner Michael LeeJennings.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, ChiefAssistant Attorney General, Jo Graves, Assistant Attorney General, Carlos A. Martinez, Mathew Chan,
Janet Neeley, David Andrew Eldridge, Stephen G. Herndon and Rachelle A. Newcomb, Deputy Attorneys
General; Robert A. Ryan, Jr., County Counsel, and James G. Wright, Deputy County Counsel, for
Respondent State of California.
35
Counsel who argued in Supreme Court (not intended for publication with opinion):
M. Bradley WishekRothschild, Wishek & Sands
901 “F” Street, Suite 200
Sacramento, CA 95814
(916) 444-9845
Rachelle A. Newcomb
Deputy Attorney General
1300 I Street
P.O. Box 944255
Sacramento, CA 94244-2550
(916) 324-5320
36
Opinion Information
| Date: | Docket Number: |
| Mon, 08/23/2004 | S115009 |
Parties
| 1 | Jennings, Michael Lee (Petitioner) Represented by M. Bradley Wishek Rothschild, Wishek & Sands 901 F St #200 Sacramento, CA |
| 2 | The People (Non-Title Respondent) Represented by Rachelle Anne Newcomb Ofc Attorney General P O Box 944255 Sacramento, CA |
| Disposition | |
| Aug 23 2004 | Opinion: Reversed |
| Dockets | |
| Apr 8 2003 | Petition for review filed by counsel for petnr |
| Apr 11 2003 | Received Court of Appeal record one large env. |
| May 21 2003 | Petition for Review Granted (criminal case) Votes: George, CJ., Kennard, Werdegar, Brown and Moreno, JJ. |
| Jun 9 2003 | Request for extension of time filed for petnr. to file the opening brief on the merits, to 7-7-03. |
| Jun 16 2003 | Extension of time granted to 7-7-03 for petnr to file the opening brief on the merits. |
| Jul 8 2003 | Opening brief on the merits filed By counsel for petitioner (Michael Lee Jennings) |
| Aug 1 2003 | Request for extension of time filed For resp (People) to file the answer brief on the merits, to 9-5-03. |
| Aug 11 2003 | Extension of time granted to 9-5-03 for resp to file the answer brief on the merits. |
| Sep 2 2003 | Answer brief on the merits filed by resp |
| Sep 22 2003 | Motion to strike filing (in non-AA case) Petitioner's Motion to Strike Respondent's Answer Brief on the Merits (filed in San Diego) |
| Sep 22 2003 | Reply brief filed (case fully briefed) (in San Diego) by Petitioner Jennings |
| Oct 2 2003 | Opposition filed (in Sacramento) Respondent's Opposition to Motion to Strike Respondent's Answer Brief on the Merits |
| Oct 2 2003 | Request for judicial notice filed (in non-AA proceeding) (in Sacramento) Respondent's Motion for Judicial Notice |
| Oct 9 2003 | Received: in Sacramento Attorney General's Amended Declaration of Counsel to Motion for Judicial Notice |
| Oct 10 2003 | Opposition filed (in Sacramento) by petitioner to respondent's motion for judicial notice |
| Jan 22 2004 | Received: in Sacramento from counsel for petitioner document entitled Notice of Enactment of Related Statutory Provision |
| Mar 17 2004 | Request for judicial notice denied Respondent's "Motion for Judicial Notice," filed with this court on October 2, 2003, and amended on October 9, 2003, is denied. Petitioner's "Motion to Strike Respondent's Answer Brief on the Merits," filed with this court on September 22, 2003, is also denied. (See Cal. Rules of Court, rule 14(e)(2)(C).) |
| Mar 17 2004 | Supplemental letter briefs requested The parties are directed to file letter briefs addressing whether Business and Professions Code section 25658, subdivision (c) is limited to the "shoulder tapping" factual situation, or whether a social host who purchases alcoholic beverages later served to an underage guest can be characterized as having "purchas[ed]" alcoholic beverages "for" an underage guest within the meaning of that statute. Supplemental letter briefs must be filed on or before March 31, 2004. Reply briefs must be filed on or before April 7, 2004. (Cal. Rules of Court, rules 29(b)(2), 29.1(e).) |
| Mar 30 2004 | Letter brief filed by petnr |
| Mar 30 2004 | Letter brief filed by resp |
| Apr 7 2004 | Opposition filed by resp |
| Apr 28 2004 | Case ordered on calendar 5-27-04, 9am, S.F. |
| May 27 2004 | Cause argued and submitted |
| Aug 23 2004 | Opinion filed: Judgment reversed and remanded to court of appeal with directions. Majority opinion by Werdegar, J. ------------------joined by George, C.J., Kennard, Baxter, Chin, Brown, Moreno, JJ. |
| Sep 22 2004 | Received: Attorney M.Bradley Wishek's request for modification of the final paragraph of the opinion re: service of certifed copy of opinion . |
| Sep 28 2004 | Remittitur issued (criminal case) |
| Oct 7 2004 | Note: case record transmitted to the court of appeal |
| Briefs | |
| Jul 8 2003 | Opening brief on the merits filed |
| Sep 2 2003 | Answer brief on the merits filed |
| Sep 22 2003 | Reply brief filed (case fully briefed) |
