Wednesday, February 5, 2014

BUSINESS & PROFESSIONS CODE SECTION 25658(B): PURCHASE OF ALCOHOLIC BEVERAGE BY PERSON UNDER 21


ELEMENTS

To prove the defendant guilty of this crime, the prosecution must prove beyond a reasonable doubt that:


1) The defendant purchased an alcoholic beverage or drank or consumed an alcoholic beverage at a business that was lawfully licensed to sell alcoholic beverages; and

2) At the time, the defendant was under 21 years old.

SEVERITY & PUNISHMENT*

Misdemeanor: A fine of $250 or between 24-36 hours of community service.


Driving privileges may be affected by a conviction. 

* Penalties increase for subsequent offenses.

Sources: 

Judicial Council Of California Criminal Jury Instructions

Business & Professions Code Section 25658

BUSINESS & PROFESSIONS CODE SECTION 25658(A): SELLING OR FURNISHING ALCOHOLIC BEVERAGE TO PERSON UNDER 21


ELEMENTS

To prove the defendant guilty of this crime, the prosecution must prove beyond a reasonable doubt that:


The defendant sold, furnished or gave away, or caused to be sold, furnished or given away, an alcoholic beverage to a person under 21.

An alcoholic beverage is a liquid or solid material intended to be consumed that contains one-half of 1 percent or more of alcohol by volume (e.g., wine or beer- see Bus. & Prof. Code Sec. 23004).

DEFENSES

1) Good faith belief at least 21 (if prima facie showing by defendant, i.e., "sufficient evidence" of defense). The defendant is not guilty of this crime if he reasonably and actually believed that the person receiving alcohol was at least 21 years old. The prosecution has the burden of proving beyond a reasonable doubt that the defendant did not reasonably and actually believed that person was at least 21 years old. If the prosecution cannot meet this burden, the defendant must be acquitted of the charge. 


2) Actual reliance on identification (if prima facie showing by defendant, i.e., "sufficient evidence" of defense). The defendant did not unlawfully furnish an alcoholic beverage to a person under 21 years old if: 1) The defendant or his employee or agent demanded to see a government-issued document as evidence of that person's age and identity; 2) That person showed the defendant or his employee or agent a government-issued document, or what appeared to be a government-issued document, as evidence of her age and identity; and 3) The defendant or his employee or agent actually relied on the document as evidence of that person's age and identity. 


Used here, a government-issued document is a document [including a driver's license or an identification card issued to a person in the armed forces] that has been, or appears to have been, issued by a government agency and contains the person's name, date of birth, description and picture. The government-issued document does not have to be genuine. 


An agent is a person who is authorized to act for the defendant in dealings with other people. 


The prosecution has the burden of proving beyond a reasonable doubt that the defendant did not actually rely on a government-issued document, or what appeared to be a government-issued document, as evidence of the age and identity of the person receiving alcohol. If the prosecution cannot meet this burden, the defendant must be acquitted of the charge. 


Sources: 

Judicial Council Of California Criminal Jury Instructions

Business & Professions Code Section 25658 


Tuesday, February 4, 2014

BUSINESS & PROFESSIONS CODE SECTION 25658(A) & (C): PURCHASING ALCOHOLIC BEVERAGE FOR PERSON UNDER 21: RESULTING IN DEATH OR GREAT BODILY INJURY


ELEMENTS

To prove the defendant is guilty of this crime, the prosecution must prove beyond a reasonable doubt that:


1) The defendant purchased an alcoholic beverage for, or furnished, gave or gave away an alcoholic beverage to, a person under 21 years old;

2) That person consumed the alcoholic beverage; and

3) That person's consumption of the alcoholic beverage caused death or great bodily injury to herself or another person.

An alcoholic beverage is a liquid or solid material intended to be consumed that contains one-half of 1 percent or more of alcohol by volume (e.g., wine or beer- see Bus. & Prof. Code Sec. 23004). 

Great bodily injury is significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. 


An act causes death or great bodily injury if the death or injury is the direct, natural and probable consequence of the act and the death or injury would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. 


There may be more than one cause of death or great bodily injury. An act causes death or injury only if it is a substantial factor in causing the death or injury. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes death or injury. 


SEVERITY & PUNISHMENT


Misdemeanor: Between six months to one year in County Jail and/or a fine of up to $1000.


DEFENSES

1) Good faith belief at least 21 (if prima facie showing by defendant, i.e., "sufficient evidence" of defense). The defendant is not guilty of this crime if he reasonably and actually believed that the person receiving alcohol was at least 21 years old. The prosecution has the burden of proving beyond a reasonable doubt that the defendant did not reasonably and actually believed that person was at least 21 years old. If the prosecution cannot meet this burden, the defendant must be acquitted of the charge. 


2) Actual reliance on identification (if prima facie showing by defendant, i.e., "sufficient evidence" of defense). The defendant did not unlawfully furnish an alcoholic beverage to a person under 21 years old if: 1) The defendant or his employee or agent demanded to see a government-issued document as evidence of that person's age and identity; 2) That person showed the defendant or his employee or agent a government-issued document, or what appeared to be a government-issued document, as evidence of her age and identity; and 3) The defendant or his employee or agent actually relied on the document as evidence of that person's age and identity. 

Used here, a government-issued document is a document [including a driver's license or an identification card issued to a person in the armed forces] that has been, or appears to have been, issued by a government agency and contains the person's name, date of birth, description and picture. The government-issued document does not have to be genuine. 


An agent is a person who is authorized to act for the defendant in dealings with other people. 


The prosecution has the burden of proving beyond a reasonable doubt that the defendant did not actually rely on a government-issued document, or what appeared to be a government-issued document, as evidence of the age and identity of the person receiving alcohol. If the prosecution cannot meet this burden, the defendant must be acquitted of the charge. 


Sources: 

Judicial Council Of California Criminal Jury Instructions

Business & Professions Code Section 25658

PENAL CODE SECTION 647(F): DRUNK IN PUBLIC


ELEMENTS

To prove the defendant is guilty of this crime, the prosecution must prove beyond a reasonable doubt that:


1) The defendant was willfully under the influence of alcohol, a drug, a controlled substance or toluene, or a combination of any of these substances;

2) When the defendant was under the influence, he was in a public place, and

3) The defendant was unable to exercise care for his own safety or the safety of others or, because the defendant was under the influence, he interfered with, obstructed or prevented the free use of a street, sidewalk or other public way.

Someone commits an act willfully when he does it willingly or on purpose. 

Used here, a public place is a place that is open and accessible to anyone who wishes to go there. 


SEVERITY & PUNISHMENT


Misdemeanor: Up to six months in County Jail and/or a fine of up to $1000.


DEFENSES

1) Defendant was not under the influence;


2) Defendant was not in a public place; or

3) Defendant was able to care for self or others or did not interfere with public way.

* Watch for illegal detention- move to suppress.

Sources: 

Judicial Council Of California Criminal Jury Instructions

California Penal Code Section 647

Monday, February 3, 2014

PENAL CODE SECTION 272(B)(1): PERSUADING, LURING OR TRANSPORTING A MINOR UNDER 14 YEARS OF AGE


ELEMENTS 

To prove the defendant is guilty of this crime, the prosecution must prove beyond a reasonable doubt that: 

1) The defendant contacted or communicated with a minor; 

2) When the defendant did so, he was an adult stranger to the minor; 

3) The minor was under 14 years of age at the time; 

4) The defendant knew that he was contacting or communicating with the minor; 

5) The defendant knew or reasonably should have known that the minor was under 14 years of age at the time; 

6) The defendant contacted or communicated with the minor with the intent to persuade, lure or transport, or attempt to persuade, lure or transport, her for any purpose, away from the minor's home or any location known by the minor's parent, legal guardian or custodian as a place where the child is located; 

7) The defendant did not have the express consent of the minor's parent or legal guardian; 

8) When the defendant acted, he intended to avoid the consent of the minor's parent or legal guardian; and

9) (In appropriate cases) The defendant was not acting in an emergency situation. 

An adult stranger is a person at least 21 years old who has no substantial relationship with the child or is merely a casual acquaintance, or who has established or promoted a relationship with the child for the primary purpose of victimization. 

Express consent means oral or written permission that is positive, direct and unequivocal, requiring no inference or implication to supply its meaning. 

Contact or communication includes the use of a telephone or the Internet. 

Internet means the global information system that is logically linked together by a globally unique address space based on the Internet Protocol (IP), or its subsequent extensions, and that is able to support communications using the Transmission Control Protocol/Internet Protocol (TCP/IP) suite, or its subsequent extensions, or other IP-compatible protocols, and that provides, uses, or makes accessible, either publicly or privately, high-level services layered on the communications and related infrastructure described in this definition. 

An emergency situation is a situation where a child is threatened with imminent bodily, emotional or psychological harm. 

SEVERITY

Wobbler: 

1) Infraction: Up to a $250 fine.

2) Misdemeanor: Up to six months in County Jail and/or a fine of up to $1000. 

DEFENSES

1) Defendant acted with parental consent;

2) Defendant acted to protect minor (e.g., in case of emergency) or other exigency necessitated that defendant act;

3) Reasonable mistake of age; 

4) Misidentification.  

Sources: 

Judicial Council Of California Criminal Jury Instructions

California Penal Code Section 272(b)(1)

PENAL CODE SECTION 337A(A)(1): BOOKMAKING


ELEMENTS

To prove the defendant is guilty of this crime, the prosecution must prove beyond a reasonable doubt that:


1) The defendant engaged in bookmaking; and

2) When the defendant acted, he knew that he was engaged in bookmaking.

Bookmaking includes the taking of bets, either orally or recorded in writing. The defendant does not need to be involved in betting as a business or occupation. The taking of one bet is sufficient. 

A bet is a wager or agreement between two or more people that if an uncertain future event happens, the loser will pay money to the winner or give the winner something of value. A bet includes a wager made on the outcome of any actual or purported event, including but not limited to any kind of sporting contest or other event (as provided in Section 337a). It is not necessary that the event that was bet on actually take place.

SEVERITY & PUNISHMENT*

Wobbler: 

1) Misdemeanor: Up to one year in County Jail and/or a fine of up to $5,000; or 

2) Felony: 16 months, 2 years or 3 years in State Prison and/or fine of up to $5000. 

* Applies to first offenses only. Subsequent offenses carry additional penalties (see section 337a(b)-(d)).

Sources: 

Judicial Council Of California Criminal Jury Instructions 

California Penal Code Section 337a

PENAL CODE SECTION 337A(A)(1): POOL SELLING


ELEMENTS

To prove the defendant is guilty of this crime, the prosecution must prove beyond a reasonable doubt that:


1) The defendant sold or distributed shares or chances in a betting pool; and

2) When he acted, the defendant knew he was selling or distributing shares or chances in a betting pool.

The defendant does not need to be involved in selling or distributing shares or chances as a business or occupation. A single act that violates the statute is sufficient. It is not necessary that the event that is the subject of a betting pool actually take place. 

SEVERITY & PUNISHMENT*

Wobbler: 

1) Misdemeanor: Up to one year in County Jail and/or a fine of up to $5,000; or 

2) Felony: 16 months, 2 years or 3 years in State Prison and/or fine of up to $5000. 

* Applies to first offenses only. Subsequent offenses carry additional penalties (see section 337a(b)-(d)).

Sources: 

Judicial Council Of California Criminal Jury Instructions 

California Penal Code Section 337a