California Criminal Jury Instructions (CALCRIM) (2017)

2963. Permitting Person Under 21 to Consume Alcoholic Beverage

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2963.Permitting Person Under 21 to Consume Alcoholic
Beverage (Bus. & Prof. Code, § 25658(d))
The defendant is charged [in Count ] with [unlawfully]
permitting a person under 21 years old to consume an alcoholic
beverage [in violation of Business and Professions Code section
25658(d)].
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
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<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 [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
Business and Professions Code section 25660(c) 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
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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(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
See the Related Issues section of CALCRIM No. 2962, Selling or Furnishing
Alcoholic Beverage to Person Under 21.
CALCRIM No. 2963 VANDALISM, LOITERING, AND TRESPASS
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