Opinion
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 Code 1 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.
Facts 2
On May 30, 2000, petitioner Michael Lee 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 mm, resulting in a major collision and serious injuries to Turpin, Smith and Fosnaugh.
*260 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 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 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)
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 “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)
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. (§ 2565S.2.) 3
*262
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)
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 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.
*263 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)
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).
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)
*264
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)
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 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 *265 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)
Nevertheless, some limits are apparent when we consider section 25658(c) together with section 25658(a). (See
Renee J. v. Superior Court, supra,
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 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. We thus consider whether section 25658(a) requires such proof. We conclude it does not.
*267
For criminal liability to attach to an action, the standard rale 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 rale 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.” [Citation.]’ [Citation.]”
(In re Jorge M.
(2000)
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)
“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 drag 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,
We found in
Jorge M., supra,
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,
*269
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).) 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,
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)
More on point is
Provigo Corp. v. Alcoholic Beverage Control Appeals Bd., supra,
*270 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,
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 “furnishing]” 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 “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, [f] 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.)
*271 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: [f] (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 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, italics omitted.)
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 *272 No. 1204 (1997-1998 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 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 *273 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)
The second factor we find significant is the severity of the punishment.
(Jorge
M,
supra,
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 *274 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 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)
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)
*275
Like the bigamist in
Vogel, supra,
The third factor we find particularly pertinent is the seriousness of the harm or injury to the public.
(Jorge M., supra,
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,
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 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 ... [][]... FH] .. . 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)
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)
Of course, murder
(People v. Goodman, supra,
People
v.
Schwartz, supra,
Notwithstanding the foregoing, the modem 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,
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
*279
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,
Most notable, perhaps, of this line of cases is
People v. Hernandez
(1964)
These cases follow the modem 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,
As in
Vogel, supra,
*281
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,
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
*282
Court of Appeal is directed to remit a certified copy of this opinion to the superior court for filing, 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)
George, C. J., Kennard, J., Baxter, J., Chin, J., Brown, J., and Moreno, J., concurred.
Notes
All further statutory references are to the Business and Professions Code unless otherwise stated.
Petitioner waived his right to a jury trial and submitted his case on the police report. The facts are drawn largely from that report.
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:
*262 “(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.”
By this time, Assembly Bill No. 2029 had been incorporated into Assembly Bill No. 1204 for technical procedural reasons.
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.
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.
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).
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)
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 superseded 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.”
People v. Goodman, supra,