2963. Permitting Person Under 21 to Consume Alcoholic Beverage

The defendant is charged [in Count ______] with [unlawfully] permitting a person under 21 years old to consume an alcoholic beverage.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant was licensed to sell alcoholic beverages on the premises of a business;

2. The defendant [unlawfully] permitted <insert name of person under 21> to consume an alcoholic beverage on the premises of that business;

AND

3. The defendant knew that <insert name of person under 21> was consuming an alcoholic beverage.

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. [An alcoholic beverage includes <insert type[s] of beverage[s] from Bus. & Prof. Code, § 23004, e.g., wine, beer>.]

[Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.]

The People are not required to prove that the defendant knew that <insert name of person under 21> was under 21.

<Defense: Good Faith Belief at Least 21>

[The defendant is not guilty of this crime if (he/she) reasonably and actually believed that <insert name of person under 21> was at least 21 years old. The People have the burden of proving beyond a reasonable doubt that the defendant did not reasonably and actually believe that <insert name of person under 21> was at least 21 years old. If the People have not met this burden, you must find the defendant not guilty of this crime.]

<Defense: Actual Reliance on Identification>

[The defendant did not unlawfully permit a person under 21 years old to consume an alcoholic beverage if:

1. The defendant [or (his/her) (employee/ [or] agent)] demanded to see a government-issued document as evidence of ______'s<insert name of person under 21> age and identity;

2. <insert name of person under 21> showed the defendant [or (his/her) employee/ [or] agent)] a government-issued document, or what appeared to be a government-issued document, as evidence of (his/her) age and identity;

AND

3. The defendant [or (his/her) employee/ [or] agent)] actually relied on the document as evidence of ______'s<insert name of person under 21> age and identity.

As used here, a government-issued document is a document 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. This definition includes a driver's license [or an identification card issued to a person in the armed forces]. 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 People have 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 ______'s<insert name of person under 21> age and identity. If the People have not met this burden, you must find the defendant not guilty of this crime.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime.

Give the bracketed sentence about calculating age if requested. (Fam. Code, § 6500; In re Harris (1993) 5 Cal.4th 813, 849-850 [21 Cal.Rptr.2d 373, 855 P.2d 391].)

Defenses—Instructional Duty

Business and Professions Code section 25660 provides a defense for those who rely in good faith on bona fide evidence of age and identity. If there is sufficient evidence, the court has a sua sponte duty to instruct on the defense. (See People v. Mower (2002) 28 Cal.4th 457, 478-481 [122 Cal.Rptr.2d 326, 49 P.3d 1067] [discussing affirmative defenses generally and the burden of proof].) Give the bracketed word "unlawfully" in the first sentence and element 1, and the bracketed paragraph on the defense.

In In re Jennings (2004) 34 Cal.4th 254, 280 [17 Cal.Rptr.3d 645, 95 P.3d 906], the Supreme Court held that, for a prosecution under Business and Professions Code section 25658(a), the defendant may assert as a defense a good faith belief that the person was at least 21. If the trial court concludes that this defense also applies to a prosecution under Business and Professions Code section 25658(d) and there is sufficient evidence, the court has a sua sponte duty to instruct on the defense. The court may use the bracketed language to instruct on this defense if appropriate.

Authority

Elements. Bus. & Prof. Code, § 25658(d).

Alcoholic Beverage Defined. Bus. & Prof. Code, § 23004.

Bona Fide Evidence of Age Defense. Bus. & Prof. Code, § 25660; Kirby v. Alcoholic Beverage Control Appeals Board (1968) 267 Cal.App.2d 895, 897, 898-899 [73 Cal.Rptr. 352].

Affirmative Defenses. See People v. Mower (2002) 28 Cal.4th 457, 478-481 [122 Cal.Rptr.2d 326, 49 P.3d 1067].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000), Crimes Against Public Peace and Welfare, § 291.

Related Issues

See the Related Issues section of CALCRIM No. 2962, Selling or Furnishing Alcoholic Beverage to Person Under 21.

(New January 2006)