Opinion
No. 00M07614.
1-23-2002
The PEOPLE, Plaintiff and Respondent, v. Michael Lee JENNINGS, Defendant and Appellant.
Rothschild, Wishek & Sands and Kelly Lynn Babineau for Defendant and Appellant. Janice H. Scully, District Attorney, for Plaintiff and Respondent.
THE COURT.
This appeal considers whether the trial court correctly interpreted Business and Professions Code section 25658, subdivision (c), (hereafter section 25658(c); all statutory references are to the Business and Professions Code unless otherwise indicated), to be a strict liability statute, precluding introduction of any evidence of defendants lack of knowledge of the age of the person for whom he purchased the alcohol.
BACKGROUND
On September 7, 2000, a first amended misdemeanor complaint was filed against defendant charging him with violating section 25658(c) by purchasing alcohol beverages for minors who thereafter consumed the alcohol and proximately caused great bodily injury or death to themselves and others. Defendant entered a not guilty plea on December 15, 2000, and the case was assigned for jury trial on May 9, 2001.
In the trial court, the People submitted a motion in limine seeking to exclude any evidence by defendant regarding his ignorance of the true age of Charles Turpin, the minor for whom defendant allegedly purchased the alcohol, who consumed the alcohol and who thereafter while driving from defendants house broadsided another car, seriously injuring himself and two other people. The prosecution contended defendants knowledge of the minors age was irrelevant to a violation of section 25658(c).
Defendant filed a trial brief contending, among other things, that knowledge is a necessary element of a section 25658(c) violation. The defense made an offer of proof that if allowed, evidence would be submitted that defendant believed Mr. Turpin to be at least 21 years old. Just a few weeks prior to this incident, defendant and several others from his work, including Mr. Turpin, decided to go for a beer after work. They all went to a local convenience store. They were standing in the parking lot, drinking some beer, when a police officer pulled up. The officer told them they would have to leave. The officer questioned Mr. Turpin as to his age and Mr. Turpin told the officer he was 22. In addition, defendant offered to show that his lack of knowledge of Mr. Turpins age was supported by the employee records at Armor Steel, the company where they both worked. Specifically, Mr. Turpins job application does not have a place for a persons date of birth. There was no photocopy of Mr. Turpins license in the employment file. Moreover, defendant did not process Mr. Turpins work records and would have no reason to inquire into his age. Defendant argued that the legislative history of the bill that added subdivision (c) to section 25658 indicated that the statute was designed to target adults who purposefully or willfully buy alcohol for minors and that willfulness requires knowledge.
The trial court granted the prosecutions in limine motion, ruling that section 25658(c) is a strict liability crime. The trial court ruled that no evidence of knowledge or mistake of fact could be admitted at trial.
On the next day for trial, defendant decided to submit the case to court trial on the basis of the police report, preserving his right to appeal the trial courts ruling on the prosecutions in limine motion. The trial court read the police report and found that it was sufficient to establish beyond a reasonable doubt that defendant was guilty of the crime charged. The trial court found defendant guilty. Defendant requested immediate sentencing, although he asked that execution of the sentence be stayed pending appeal. The trial court sentenced defendant to six months in jail, but suspended the sentence and placed defendant on three years informal probation conditioned, among other things, on service of 60 days in jail, work project recommended. All terms and conditions were stayed pending appeal.
Defendant filed a timely notice of appeal. He contends the trial court erred in its ruling that section 25658(c) is a strict liability statute. We affirm the trial courts ruling.
California Constitution, article XX, section 22 provides in pertinent part, that:
"The sale, furnishing, giving, or causing to be sold, furnished, or giving away of any alcoholic beverage to any person under the age of 21 years is hereby prohibited, and no person shall sell, furnish, give, or cause to be sold, furnished, or given away any alcoholic beverage to any person under the age of 21 years, and no person under the age of 21 years shall purchase any alcoholic beverage." (Italics added.)
Business and Profession Code section 25658 provides, in pertinent part, as follows:
"(a) Except as otherwise provided in subdivision (c), 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.
"[¶] ...
"(c) 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.
"[¶] ...
"(e)(1) Except as otherwise provided in paragraph (2) or (3), any person who violates this section shall be punished by a fine of two hundred fifty dollars ($250), no part of which shall be suspended, or the person shall be required to perform not less than 24 hours or more than 32 hours of community service ... or a combination of fine and community service as determined by the court....
[¶] ...
(3) Any person who violates subdivision (c) 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." (Italics added.)
There is no language in section 25658 that specifically states whether knowledge or other mens rea is required for a violation of the section. "That the statute contains no reference to knowledge or other language of mens rea is not itself dispositive .... [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.... [¶] 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.] "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." [Citation.] [Citation.]" (In re Jorge M. (2000) 23 Cal.4th 866, 872, 98 Cal.Rptr.2d 466, 4 P.3d 297.)
Appellant here contends that section 25658(c) requires general criminal intent under the general rule and that it is not a public welfare statute. The People take the opposite position, arguing that the statute is a strict liability statute. We conclude the People are correct.
Although there is no case law expressly stating that section 25658(c) is a strict liability statute, there is a case law stating that a violation of section 25658, subdivision (a), can occur when alcohol is sold to a minor despite the sellers lack of knowledge that the purchaser is under the age of 21. The California Supreme Court has expressly held that the laws against sales to minors can be violated despite the sellers or its agents lack of knowledge of the purchasers minority. (Provigo Corp. v. Alcoholic Bev. Control Appeals Bd. (1994) 7 Cal.4th 561, 565, 569, 28 Cal.Rptr.2d 638, 869 P.2d 1163.) It has been held that section 25658 does not require that the act be knowingly done. A licensee (seller) can be held to have permitted the violation simply by a showing that the acts themselves took place. (Munro v. Alcoholic Bev. Control Appeals Bd. (1957) 154 Cal. App.2d 326, 329, 316 P.2d 401.) Thus, it appears that section 25658, by itself, is a strict liability statute as applied to persons who violate the statute by selling alcohol to a minor.
Of course, a sellers liability under section 25658 is not absolute, because the Legislature has provided in section 25660 that a seller may protect itself by requesting and relying on bona fide evidence of majority and identity. (Kirby v. Alcoholic Bev. Control Appeals Bd. (1968) 267 Cal. App.2d 895, 898, 73 Cal.Rptr. 352.) However, as section 25660 refers only to a "seller" it is not certain that any other person could use this as a defense. Since there is no claim here that defendant asked for and relied on any evidence of identification and majority, the applicability of section 25660 to this case in not raised. The issue is only whether section 25658 requires any sort of knowledge of the violation.
If section 25685(a) is viewed as a strict liability statute for sellers, there is no grammatical basis for distinguishing persons who violate the section by furnishing or giving the alcohol to a minor. Section 25658(a) simply provides that "any person" selling, furnishing or giving alcohol to a minor is guilty of a misdemeanor. Whatever the plausible basis for distinguishing between sellers and social hosts, the Legislature has not placed such distinction into the statute. It would be difficult to conclude that the statute, which is silent as to intent, contains no intent for sellers but requires general criminal intent for social hosts.
Defendant contends, however, that the Legislature intended a general intent requirement when it added subdivisions (c) and (e)(3) to section 25658, providing that persons who violate subdivision (a) by purchasing alcohol for a minor, which the minor consumes and then causes great bodily injury, are guilty of a misdemeanor punishable by a six-months-to-one-year jail term and/or a $1000 fine. At the trial court level, defendant attached several pages of bill analysis for Assembly Bill No. 1204 and Assembly Bill No. 2029, suggesting that the purpose of the statute was to designed to stop "shoulder tapping" a process where the minor stands outside a liquor store and asks an adult to purchase alcohol for him. Defendant contended that this showed that the statute targeted adults who purposefully or willfully bought alcohol for minors. On appeal, defendant contends that in addition to the legislative history, the language of section 25658(c) itself contains an implied intent requirement because it requires that a person purchase alcohol for a person under the age of 21.
The highlighted portion of section 25658(c) does not necessarily require knowledge or willful purchase. The statute can just as easily be read to be applicable to any person who purchases alcohol for another person, whenever that person happens to be a minor.
Nor is the legislative history particularly supportive of defendants position. It is true that the author of the original bill amending section 25658 was motivated by a perceived need for greater punishment for adults who are "shoulder-tapped" and buy alcohol for minors who then drink and drive, causing serious injury. However, a full review of the legislative history arguably indicates an understanding that general intent would not be required for a misdemeanor violation of section 25658(c).
Specifically, Assembly Bill No. 2029 originally proposed an amendment to section 25658 to add a subdivision making the purchase of alcohol for a minor, where the minor consumes the alcohol and proximately causes great bodily injury a "wobbler," either a misdemeanor or a felony. (Assem. Bill No. 2029 (1997-1998 Reg. Sess.).) To be a felony, the purchaser "must have known or reasonably should have know that the person for whom he/she was purchasing was under 21 and that the great bodily injury resulted from the minor drinking and driving under the influence." (Assem. Amend. Assem. Bill No 2029 (1997-1998 Reg. Sess.) April 21, 1998) The Assembly Committee Public Safety indicated at one point that this bill "requires little or no intent on the part of the purchaser of alcohol for underage persons." (Assem. Com. Public Safety Analysis of Assem. Bill No. 2029 (1997-1998 Reg. Sess.) March 31, 1998.) When Assembly Bill No. 2029 was caught up in a group of bills that were not able to get out of their first committee, the substance of Assembly Bill No. 2029 was put into Assembly Bill No. 1204. (Sen. Amend, to Assem. Bill No. 1204 (1997-1998 Reg. Sess.) June 3, 1998.) Concern was expressed about the broadness of the felony provision of the statute and Assembly Bill No. 1204 was subsequently amended to take out the felony provision completely, leaving subdivision (c) as a simple misdemeanor provision with no expressed intent requirement. (Sen. Amend, to Assem. Bill No. 1204 (1997-1998 Reg. Sess.) June 30, 1998.) 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 superseded if both bills were enacted and Senate Bill No. 1696 was chaptered last. (Legis. Counsels Dig., Sen. Bill No. 1696 (1997-1998 Reg. Sess.).) In fact, that is what happened. Assembly Bill No. 1204 was chaptered on September 14, 1998. Senate Bill No. 1696 was chaptered on September 18, 1998. Section 25658 was amended to include subdivision (c) by Senate Bill No. 1696. 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).
The legislative history information summarized was obtained from the Legislatures Internet site, <http: www.leginfo. ca.gov bilinfo.html> [as of Jan. 23, 2002].
The interpretation of section 25658(c) as a strict liability public welfare statute is also supported by judicial statements of the purpose of the constitutional and statutory provisions regarding minors obtaining alcohol. In Santa Ana Food Market, Inc. v. Alcoholic Bev. Control Appeals Bd. (1999) 76 Cal.App.4th 570, 575, 90 Cal. Rptr.2d 523, the court stated that the goal of the constitutional and statutory provisions is protecting the public welfare and morals, in the context of the sale of alcoholic beverages. In Provigo Corp. v. Alcoholic Bev. Control Appeals Bd., supra, 7 Cal.4th at page 567, 28 Cal.Rptr.2d 638, 869 P.2d 1163, the Supreme Court stated that the purpose of the provisions prohibiting sales to and purchases by minors "is to protect such persons from exposure to the `harmful influences associated with the consumption of such beverages." The concern is the "welfare of minors" and one purpose of the provisions is "`to promote temperance in the use and consumption of alcoholic beverages" (Ibid.) In Brockett v. Kitchen Boyd Motor Co. (1972) 24 Cal. App.3d 87, 94, 100 Cal.Rptr. 752, the court stated that the purpose of the statute was to protect minors and members of the general public from injuries resulting from minors use of alcohol. Thus, it appears that section 25658 has generally been interpreted as a public welfare purpose statute.
Defendant does not address these cases in his appellate brief. Defendant focuses on the analysis set forth in In re Jorge M., supra, 23 Cal.4th 866, 98 Cal.Rptr.2d 466, 4 P.3d 297, for determining whether a statute that is silent as to mental intent contains a mental intent requirement. Applying the seven considerations identified by the Supreme Court in In re Jorge M., defendant claims a mental intent requirement should be read into section 25658(c). The seven considerations identified by the Supreme Court as commonly taken into account in deciding whether a statute should be construed as a public welfare offense are as follows: "(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 the public that may be expected to follow from the forbidden conduct; (5) the defendants 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); (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)." (In re Jorge M., supra, 23 Cal.4th at p. 873, 98 Cal.Rptr.2d 466, 4 P.3d 297.)
The legislative history of section 25658(c) shows that it was initially proposed as Assembly Bill No. 2029 because the author felt the need for punishment greater than the otherwise mandated $250 fine and/or 24 to 32 hours of community service in cases where alcohol was purchased for and consumed by a minor, who then drove under the influence and caused an accident resulting in great bodily injury. As discussed above, the legislative history does not clearly show that the bill was intended to change the established strict liability of section 25658 subdivision (a) for the misdemeanor provision of subdivision (c). To the contrary, it appears that in rejecting the felony alternative, the Legislature may have rejected a mental state element for the remaining misdemeanor provision. Moreover, the purpose of the statute generally appears to be that of a public welfare statute, as expressed by the cases interpreting the section.
California law contains a general provision in Penal Code section 20 requiring at least general criminal intent for every crime or public offense. "[S]ection 20 can fairly be said to establish a presumption against criminal liability without mental fault or negligence, rebuttable only by compelling evidence of legislative intent to dispense with mens rea entirely." (In re Jorge M., supra, 23 Cal.4th at p. 879, 98 Cal.Rptr.2d 466, 4 P,3d 297. Accord, Staples v. United States (1994) 511 U.S. 600, 606, 114 S.Ct. 1793, 128 L.Ed.2d 608.) Section 20 is applicable except "where the purpose is to protect public health and safety and the penalties are relatively light." (People v. Simon (1995) 9 Cal.4th 493, 521, 37 Cal.Rptr.2d 278, 886 P.2d 1271.) Here there is some legislative intent that the statute is meant to be a strict liability statute. There is case law indicating that the strong public policy reflected by the constitutional provision on the subject, and Business and Professions Code section 25658 makes the statute a public welfare statute. This appears to be one of the exceptions to the general rule.
Both the California Supreme Court in In re Jorge M., supra, 23 Cal.4th at pages 879-880, 98 Cal.Rptr.2d 466, 4 P.3d 297, and the United States Supreme Court in Staples v. United States, supra, 511 U.S. at page 618, 114 S.Ct. 1793, have expressed the feeling that felony punishment is nearly incompatible with the theory of a public welfare offense. Certainly strong evidence of legislative intent would be necessary to exclude mens rea from such an offense.
Section 25658 is not a felony statute or even a wobbler. It makes violation of its provisions a misdemeanor. The punishment for a simple violation of subdivision (a) of the section, is very light, a $250 fine and/or 24 to 32 hours of community service. The punishment proscribed for a violation of section 25658(c), where great bodily injury has occurred, is admittedly more severe, a $1000 fine and/or six months to one year in county jail.
However, the sentencing judge retains discretion to place an offender on probation, conditioned on some lesser amount of jail time (as happened in this case), and after successful completion of such probation, the defendant may apply for relief pursuant to Penal Code section 1203.4, allowing the setting aside of defendants plea or the verdict of guilty and dismissal of the charges. Even a defendant not granted probation may apply under Penal Code section 1203.4a for an order setting aside his or her plea or the verdict and dismissal of the charges if the defendant has successfully completed his or her sentence. While not as minor as an infraction, a misdemeanor conviction under section 25658 does not carry lifelong or extremely serious consequences. This factor does not weigh against finding section 25658 to be a public welfare offense.
"[W]hen a crimes 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." (In re Jorge M., supra, 23 Cal.4th at p. 881, 98 Cal.Rptr.2d 466, 4 P.3d 297.) As already discussed, section 25658 is aimed at protecting the public and especially minors from the consequences of their use of alcohol. It has generally been found to be a statute protecting the public welfare and safety.
"Courts have been justifiably reluctant to construe offenses carrying substantial penalties as containing no mens rea element `where ... dispensing with mens rea would require the defendant to have knowledge only of traditionally lawful conduct." (In re Jorge M., supra, 23 Cal.4th at p. 881, 98 Cal.Rptr.2d 466, 4 P.3d 297, quoting from Staples v. United States, supra, 511 U.S. at p. 618, 114 S.Ct. 1793.) The more difficult to discern the true facts, the more likely the "`legislature meant to require fault in not knowing." (In re Jorge M., supra, at p. 873, 98 Cal.Rptr.2d 466, 4 P.3d 297.) Here, except for the age (minority) of the person for whom the alcohol has been purchased, the act of purchasing alcohol for another person is entirely legal. It is debatable whether the true facts (the persons minority) would be easily discernable. It is certainly easy to ask a persons age, but it is not clear what is required if the person does not answer truthfully. The application of this factor may lean towards a mens rea requirement in section 25658(c).
A statute should not be read as containing any mental state requirement that the prosecution would foreseeably and routinely have special difficulty proving. (In re Jorge M., supra, 23 Cal.4th at p. 884, 98 Cal.Rptr.2d 466, 4 P.3d 297.) "An actual knowledge element has significant potential to impair effective enforcement. Although knowledge may be proven circumstantially [citation], in many instances a defendants direct testimony or prior statement that he or she was actually ignorant of the [violation] will be sufficient to create reasonable doubt." (Id., at pp. 884-885, 98 Cal.Rptr.2d 466, 4 P.3d 297.) "A scienter requirement satisfied by proof the defendant should have known ... would have little or no potential to impede effective enforcement." (Id., at p. 885, 98 Cal.Rptr.2d 466, 4 P.3d 297.) Requiring the prosecution to prove the defendant knowingly or purposefully purchased alcohol for a minor would foreseeably and routinely make prosecution of section 25658(c) cases difficult. As noted, the defendant could by direct testimony or a prior statement simply deny such knowledge or purpose. A criminal negligence standard would probably not impede effective enforcement, although it would require additional significant circumstantial evidence to be produced. No more than a criminal negligence standard should be implied.
The final consideration is the number of prosecutions expected under the statute. A construction of the statute should not impose a scienter requirement that will "unduly impede the ability to prosecute substantial numbers of violators" where the statute is aimed at a widespread threat. (In re Jorge M., supra, 23 Cal.4th at p. 887, 98 Cal.Rptr.2d 466, 4 P.3d 297.) It is unclear the number of prosecutions anticipated by the Legislature in adopting section 25658(c). The legislative history does seem to indicate a concern that adults purchasing alcohol for a minor, often in a "shoulder-tap" situation, was a significant and not uncommon problem. Statistics showing high levels of alcohol consumption by minors and easy access by minors to alcohol were discussed. (Assem. Com. Public safety, Analysis of Assem. Bill No. 2029 (1997-1998 Reg. Sess.) as amended March 26, 1998.)
Applying the seven factors identified by the Supreme Court in In re Jorge M., supra, 23 Cal.4th 866, 98 Cal.Rptr.2d 466, 4 P.3d 297, does not provide a clear and definitive answer to whether the statute should be considered a strict liability statute, but overall, it appears that the factors favor a strict liability construction. Factors No. 1 and 4 significantly support a construction of section 25658(c) as a public welfare statute imposing strict liability on persons who engage in the prohibited acts. Factor No. 2 seems neutral, or supportive of strict liability to the extent Factors No. 1 and 4 suggest the statute is designed to protect the public welfare. Factor No. 3 may support strict liability. At least it does not weigh against strict liability. Factor No. 5 leans towards a mens rea requirement and factor No. 6 marginally suggests a criminal negligence standard might reasonably be implied. Factor No. 7 is difficult to assess without more information, but seems to fit a strict liability standard.
In summary, it appears from a review of the language of the statute in context with its legislative history and the case law concerning section 25658, subdivision (a), plus a review of the seven factors identified by the Supreme Court in In re Jorge M., that the trial court correctly interpreted section 25658(c) as a strict liability statute. Appellant has not shown any error in the trial courts preclusion of his proposed evidence regarding his lack of actual knowledge of the minors true age and lack of a basis for concluding that he should have known the minors true age.
RULING ON APPEAL
The judgment is affirmed.