CALCRIM No. 2965. Parent Permitting Child to Consume Alcoholic Beverage: Causing Traffic Collision (Bus. & Prof. Code, § 25658.2)

Judicial Council of California Criminal Jury Instructions (2020 edition)

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2965.Parent Permitting Child to Consume Alcoholic Beverage:
Causing Traffic Collision (Bus. & Prof. Code, § 25658.2)
The defendant is charged [in Count ] with permitting a child to
consume an alcoholic beverage at (his/her) home [in violation of Business
and Professions Code section 25658.2].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant was the (parent/guardian) of <insert
name of defendant’s child>;
2. The defendant permitted <insert name of defendant’s
child> [or , <insert name of other person under 18
years old> who was in the company of <insert name
of defendant’s child>, or both,] to (consume an alcoholic beverage/
[or] use <insert controlled substance listed in Health
& Saf. Code, § 11550>, a controlled substance,) in the defendant’s
home;
3. <insert name of defendant’s child> [and
<insert name of other person under 18 years old>] (was/were)
under 18 years old at the time;
4. The defendant knew that (he/she) was permitting
<insert name of defendant’s child> [or <insert name of
other person under 18 years old>, or both,] to (consume an
alcoholic beverage/ [or] use <insert controlled
substance listed in Health & Saf. Code, § 11550>, a controlled
substance,) in the defendant’s home;
5. As a result of (consuming the alcoholic beverage/ [or] using the
controlled substance), <insert name of defendant’s
child or other person under 18 years old> (had a blood-alcohol
concentration of 0.05 percent or greater, as measured by a
chemical test[,]/ [or] was under the influence of a controlled
substance);
6. The defendant allowed <insert name of defendant’s
child or other person under 18 years old> to drive a vehicle after
leaving the defendant’s home;
7. The defendant knew that (he/she) was allowing
<insert name of defendant’s child or other person under 18 years
old> to drive a vehicle after leaving the defendant’s home;
AND
8. <insert name of defendant’s child or other person
754
under 18 years old> caused a traffic collision while driving the
vehicle.
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>.]
An act causes a traffic collision if the collision is the direct, natural, and
probable consequence of the act and the collision 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.
<Defense: Good Faith Belief at Least 18>
[The defendant is not guilty of this crime if (he/she) reasonably and
actually believed that <insert name of person under 18> was
at least 18 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 18> was at least
18 years old. If the People have not met this burden, you must find the
defendant not guilty of this crime.]
[There may be more than one cause of a traffic collision. An act causes a
collision only if it is a substantial factor in causing the collision. A
substantial factor is more than a trivial or remote factor. However, it does
not need to be the only factor that causes the collision.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
[In evaluating the test results in this case, you may consider whether or
not the person administering the test or the agency maintaining the
testing device followed the regulations of the California Department of
Health Services.]
New January 2006
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 the collision, the court should also give bracketed
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paragraph on causation that begins with “There may be more than one cause of a
traffic collision.” (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].)
If the evidence demonstrates that the person administering the test or agency
maintaining the testing device failed to follow the title 17 regulations, give the
bracketed that begins with “In evaluating (the/any) test results in this case.” (People
v. Adams (1976) 59 Cal.App.3d 559, 567 [131 Cal.Rptr. 190] [failure to follow
regulations in administering breath test goes to weight, not admissibility, of
evidence]; People v. Williams (2002) 28 Cal.4th 408, 417 [121 Cal.Rptr.2d 854, 49
P.3d 203] [same]; People v. Esayian (2003) 112 Cal.App.4th 1031, 1039 [5
Cal.Rptr.3d 542] [results of blood test admissible even though phlebotomist who
drew blood not authorized under title 17].)
Subdivision (a)(2) of Business and Professions Code section 25658.2 only
contemplates a “parent” as a defendant, whereas the other subdivisions include both
“parent” as well as “legal guardian.” The committee concluded that this omission, as
well as the typographical error in subdivision (a) of the statute, are inadvertent and
has therefore included both options. If the court disagrees, it must revise the
language of element 1 accordingly.
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, 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 25658.2, and there is
sufficient evidence that the defendant had a good faith belief that the “other person
under 18” with the defendant’s child was actually over 18, 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, § 25658.2.
• Alcoholic Beverage Defined. Bus. & Prof. Code, § 23004.
RELATED ISSUES
See the Related Issues section of CALCRIM No. 2962, Selling or Furnishing
Alcoholic Beverage to Person Under 21.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 364-369.
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6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.04 (Matthew Bender).
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