California Criminal Jury Instructions (CALCRIM) (2017)

2962. Selling or Furnishing Alcoholic Beverage to Person Under 21

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2962.Selling or Furnishing Alcoholic Beverage to Person Under
21 (Bus. & Prof. Code, § 25658(a))
The defendant is charged [in Count ] with [unlawfully] (selling[,]/
[or] furnishing[,]/ [or] giving away)[, or causing to be (sold[,]/ [or]
furnished[,]/ [or] given away),] an alcoholic beverage to a person under
21 years old [in violation of Business and Professions Code section
25658(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [unlawfully] (sold[,]/ [or] furnished[,]/ [or] gave
away)[, or caused to be (sold[,]/ [or] furnished[,]/ [or] given
away),] an alcoholic beverage to <insert name of
person under 21>;
AND
2. When the defendant did so, <insert name of person
under 21> was under 21 years old.
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.]
<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 (sell[,]/ [or] furnish[,]/ [or] give
away)[, or cause to be (sold[,]/ [or] furnished[,]/ [or] given away,)] an
alcoholic beverage to a person under 21 years old 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
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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 [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 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.]
New January 2006; Revised August 2006
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
In In re Jennings (2004) 34 Cal.4th 254, 280 [17 Cal.Rptr.3d 645, 95 P.3d 906], the
Supreme Court held that, although the prosecution is not required to prove that the
defendant knew the age of the person he or she provided with alcohol, the
defendant may assert as a defense a good faith belief that the person was at least
21. The burden is on the defendant to prove this defense. (Ibid.) The Court failed
to state what burden of proof applies. Following People v. Mower (2002) 28
Cal.4th 457, 478–481 [122 Cal.Rptr.2d 326, 49 P.3d 1067], the committee has
drafted the instruction on the premise that the defendant’s burden is to merely raise
a reasonable doubt about the defense, and the prosecution must then prove beyond
a reasonable doubt that the defense does not apply. If there is sufficient evidence,
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the court has a sua sponte duty to give the bracketed paragraph on the defense.
(Ibid.)
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, supra, 28 Cal.4th at pp. 478–481 [122 Cal.Rptr.2d 326, 49 P.3d 1067].)
Give the bracketed word “unlawfully” in the first sentence and element 1, and the
bracketed paragraph on the defense.
AUTHORITY
• Elements. Bus. & Prof. Code, § 25658(a).
Alcoholic Beverage Defined. Bus. & Prof. Code, § 23004.
• Knowledge of Age Not an Element. In re Jennings (2004) 34 Cal.4th 254,
280 [17 Cal.Rptr.3d 645, 95 P.3d 906].
• Good Faith Belief Person at Least 21 Defense. In re Jennings (2004) 34
Cal.4th 254 [17 Cal.Rptr.3d 645, 95 P.3d 906].
• Bona Fide Evidence of Age Defense. Bus. & Prof. Code, § 25660(c); 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
Use of Underage Decoys
The police may use underage decoys to investigate sales of alcohol to people under
21. (Provigo Corp. v. Alcoholic Beverage Control Appeals Board (1994) 7 Cal.4th
561, 564 [28 Cal.Rptr.2d 638, 869 P.2d 1163].) Moreover, a criminal defendant
may not raise as a defense the failure of the police to follow the administrative
regulations regarding the use of decoys. (People v. Figueroa (1999) 68 Cal.App.4th
1409, 1414–1415 [81 Cal.Rptr.2d 216] [court properly denied instruction on failure
to follow regulation].)
“Furnishing” Requires Affirmative Act
“In order to violate section 25658, there must be some affirmative act of furnishing
alcohol . . . . It is clear that assisting with food and decorations cannot
conceivably be construed as acts of ‘furnishing’ liquor, nor . . . can providing the
room for the party, even with the knowledge that minors would be drinking . . . .
A permissible inference from [the] undisputed testimony was that [the defendant]
tacitly authorized his son to provide his beer to the plaintiffs . . . . Such an
authorization constitutes the requisite affirmative act as a matter of law. In order to
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furnish an alcoholic beverage the offender need not pour the drink; it is sufficient
if, having control of the alcohol, the defendant takes some affirmative step to
supply it to the drinker.” (Sagadin v. Ripper (1985) 175 Cal.App.3d 1141,
1157–1158 [221 Cal.Rptr. 675].)
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