the court has a sua sponte duty to give the bracketed paragraph on the defense.
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.
• 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].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000), Crimes Against Public
Peace and Welfare, § 291.
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
CALCRIM No. 2962 VANDALISM, LOITERING, AND TRESPASS