California Criminal Jury Instructions (CALCRIM) (2017)

2964. Purchasing Alcoholic Beverage for Person Under 21: Resulting in Death or Great Bodily Injury

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2964.Purchasing Alcoholic Beverage for Person Under 21:
Resulting in Death or Great Bodily Injury (Bus. & Prof. Code,
§ 25658(a) & (c))
The defendant is charged [in Count ] with [unlawfully]
(purchasing an alcoholic beverage for[,]/ [or] (furnishing[,]/ [or]
giving[,]/ [or] giving away) an alcoholic beverage to[,]) a person under
21 years old causing (death/ [or] great bodily injury) [in violation of
Business and Professions Code section 25658].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [unlawfully] (purchased an alcoholic beverage
for[,]/ [or] (furnished[,]/ [or] gave[,]/ [or] gave away) an alcoholic
beverage to[,]) <insert name of person under 21>;
2. When the defendant did so, <insert name of person
under 21> was under 21 years old;
3. <insert name of person under 21> consumed the
alcoholic beverage;
AND
4. ’s <insert name of person under 21> consumption of
the alcoholic beverage caused (death/ [or] great bodily injury) to
(himself/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. [An alcoholic beverage includes <insert type[s] of
beverage[s] from Bus. & Prof. Code, § 23004, e.g., wine, beer>.]
[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 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 the (death/ [or] injury).]
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[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 furnish 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
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
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BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
The court has a sua sponte duty to instruct on proximate cause. (People v.
Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr. 401].) If there is
evidence of multiple causes of death or injury, the court should also give the
bracketed paragraph on causation that begins with “There may be more than one
cause of (death/ [or] great bodily injury).” (See People v. Autry (1995) 37
Cal.App.4th 351, 363 [43 Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d
732, 746–747 [243 Cal.Rptr. 54].)
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
supporting the defense, 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.) 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) & (c).
Alcoholic Beverage Defined. Bus. & Prof. Code, § 23004.
• Great Bodily Injury Defined. Pen. Code, § 12022.7(f).
• 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, 280 [17 Cal.Rptr.3d 645, 95 P.3d 906].
• Bona Fide Evidence of Age Defense. Bus. & Prof. Code, § 25660(c); Kirby v.
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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.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.04 (Matthew Bender).
RELATED ISSUES
See the Related Issues section of CALCRIM No. 2962, Selling or Furnishing
Alcoholic Beverage to Person Under 21.
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