NEWSOM, J. I respectfully dissent.
The disagreement between the majority and myself respecting the registration offenses (Corp. Code, § 31110 et seq.) is simple. My colleagues, following what they believe to be binding precedents, hold that the defendants must be convicted if they wilfully performed the acts charged. They cite to this effect People v. O’Brien (1892) 96 Cal. 171 [31 P. 45]. In dissent, I conclude that while mere wilfulness can be sufficient in some crimes, namely, those mala in se—such as the grand theft charges against defendants here—it will not suffice for conviction where the crime is one malum prohibitum, which does not by its mere commission import the mens rea or evil design required by both statute and common law.
The issue is to my mind one of fundamental importance. It has become so clouded by conflicting appellate decisions and ambiguous dicta in certain early decisions of our Supreme Court, that I venture on the following rather lengthy comment.
As far as my research discloses, the issue was first raised in People v. Harris (1866) 29 Cal. 678, where a man accused of voting twice in an election defended himself on the ground that, when he voted for the second time, he had been too drunk to know what he was doing. Under the heading “Evil intent necessary to constitute a crime,” the court explained: “It is laid down in the [782]books on the subject . . . [as] a universal doctrine that to constitute what the law deems a crime there must concur both an evil act and an evil intent. Actus non fecit reum nisi mens sit rea. [Citation.] Therefore the intent with which the unlawful act was done must be proved as well as the other material facts stated in the indictment; which may be by evidence either direct or indirect tending to establish the fact, or by inference of law from other facts proved. When the act is proved to have been done by the accused, if it be an act in itself unlawful, the law in the first instance presumes it to have been intended, and the proof of justification or excuse lies on the defendant to overcome this legal and natural presumption.” (29 Cal. 678, at p. 681, italics added.)
Solid agreement for this concept was expressed in a later case, People v. Burns (1888) 75 Cal. 627 [17 P. 646], which concerned an election officer charged with failing to swear a voter as required. The Supreme Court approved the giving of an instruction by the trial court that the officer, in order to be convicted, must have acted knowingly and fraudulently. Shortly thereafter, in People v. Ribolsi (1891) 89 Cal. 492 [26 P. 1082], the court, disapproving a jury instruction which placed the burden of negating criminal intent on the defendant, observed that . . when the defendant relies upon no distinct, separate, or independent fact, such as insanity, but confines his defense to the original transaction on which the charge is founded, ... the burden of proof never shifts, but remains upon the people throughout the whole case to prove the act committed a criminal one beyond a reasonable doubt. . . . [f] To declare otherwise would be to say that the mere proof of the taking away of the horse of another from a pasture withotit permission of the owner, a mere trespass, would throw upon a party doing that act, if charged with larceny, the burden of proving that he did not take the horse and carry it away with intent to steal, ...” (Id., at p. 500, first italics added.)
It therefore appears to have been early understood that mere wilfulness would suffice for conviction only where the crime charged embraced conduct unlawful in itself. Such, in any event, was the state of the law at the time the high court directly confronted the issue of the sufficiency of mere wilfulness, in People v. O’Brien, supra, 96 Cal. 171—a case which I think has caused confusion and mischief, being often cited today in support of so-called “strict” criminal liability.
The facts in O’Brien were that one Derevan had conveyed to Dennis O’Brien a tract of land in Modoc County. The latter erased his first name, “Dennis,” from thé deed and inserted in its place the name of his wife, “Mary,” and caused the deed to be recorded in this form.
Later, Dennis O’Brien admitted his wrongdoing to the County Recorder, and asked that official to alter the record to show the “truth” of the underlying [783]transaction. Upon receiving the consent of both Derevan and Mary O’Brien, the recorder complied.
Dennis O’Brien was on these facts convicted of the crime of altering a public record. He appealed, urging that his intent had been the entirely innocent one of correcting the record to show the true state of affairs. The court, however, rejected this defense, pointing to Penal Code section 7,1 thus in effect implying that the commission of the act charged, if done merely wilfully, sufficed for conviction irrespective of questions of intent.
Without questioning the correctness of the result in O’Brien—reversal on other grounds—I suggest that its rationale is mere erroneous dicta. Thus, the prohibited conduct in the case was not falsifying the record, but “altering” it. The code prohibited altering the record without the consent of the proper parties. The recorder assisted in altering the record when the proper parties, Derevan and Mary O’Brien, applied to him; the crime, however, was committed, not when the recorder altered the record, but when Dennis O’Brien himself attempted to have it altered.
If I am correct the crime was in reality one malum in se, and the opinion—obiter dictum—that merely doing it wilfully would suffice for conviction, seems unobjectionable, since it remained open to Dennis O’Brien to defend himself by showing that he had already obtained the consent of Mary and Derevan.
The only other Supreme Court authority I have found favoring the existence in California of strict criminal liability is People v. Dillon (1926) 199 Cal. 1 [248 P. 230], a case which relies almost exclusively on People v. O’Brien, supra, 96 Cal. 171, just discussed.
In Dillon, supra, a public officer was charged with malfeasance in the use of public funds. It was shown that as a county purchaser, Dillon had been able to buy certain items at discounted prices, and did so for the benefit of departmental friends. Elaborating on the theme that the crime at issue was not embezzlement, even though that word appeared in the title of the section at issue, and that Dillon was a public officer, in special circumstances, the court held that no intent to defraud need be proven—that mere wilfulness was sufficient.
Once again, however, it seems to me that besides resting on erroneous precedents, and being confined to public officials, Dillon involved fraudulent, malum in se conduct, in the nature of embezzlement._
[784]On the other hand, in the 45 years since People v. Dillon, supra, 199 Cal. 1, our Supreme Court has uniformly denied or restricted the theory that wilfulness alone is sufficient to support a criminal conviction. These decisions include In re Marley (1946) 29 Cal.2d 525, 528 [175 P.2d 832]; People v. Vogel (1956) 46 Cal.2d 798 [299 P.2d 850]; People v. Stuart (1956) 47 Cal.2d 167 [302 P.2d 5, 55 A.L.R.2d 705]; and, more recently, People v. Hernandez (1964) 61 Cal.2d 529 [39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092], where it was said that, ‘““At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which the person is indicted an innocent act, has always been held to be a good defense. . . .” ’”2(61 Cal.2d at p. 535.)
So far as I can determine, therefore, the holding that, in general, mere wilfulness is sufficient for conviction in California where the act is malum prohibitum does not rest upon any decisions binding on this court, whereas the contrary proposition, beginning with People v. Harris, supra, 29 Cal. 678, and continuing through People v. Hernandez, supra, 61 Cal.2d 529, is established.
Turning to the specific facts of the case at bench, it cannot reasonably be contended—and the majority do not claim—that the franchise act creates or defines crimes exclusively “wrong in themselves.” Indeed, there are two sections of the act which create crimes, one proscribing “fraudulent,” the other merely “prohibited” acts. The former plainly correspond to grand theft and are mala in se within traditional common law contemplation, and their commission imports the criminal intent necessary under Penal Code section 20. Proving that the accused wilfully did such acts makes a prima facie case against him, and he can hardly be heard to say that he did not understand such acts to have been criminal.
As to these acts, I agree that the convictions should be reversed, not only on the necessarily included offense theory, but also because of the trial court’s erroneous statement concerning CALJIC No. 4.36—a restatement of the venerable maxim that “ignorance of the law is no excuse”—did not apply to the acts allegedly comprising grand theft.3
In this latter respect, given the bewildering complexity of numerous, overlapping charges, divided into different categories requiring proof of different mental states for conviction, I do not find the error correctable by later explana[785]tions. I hence find it prejudicially misleading. (Cf. People v. Gonzales (1967) 66 Cal.2d 482, 493 [58 Cal.Rptr. 361, 426 P.2d 929]; People v. St. Andrew (1980) 101 Cal.App.3d 450, 465 [161 Cal.Rptr. 634].)
As to the registration violations, wilful though the omissions may have been—and I have grave doubts even as to the existence of wilfulness—I simply think the majority mistaken in holding that such omissions can be criminalized in the absence of proof—direct or circumstantial—of defendants’ culpable mental state, or mens rea. (Cf. Pen. Code, §§ 20, 26, subd. Four; People v. Mayberry (1975) 15 Cal.3d 143, 154 [125 Cal.Rptr. 745, 542 P.2d 1337]; People v. Hernandez, supra, 61 Cal.2d 529; People v. Vogel, supra, 46 Cal.2d 798; People v. Harris, supra, 29 Cal. 678.)
Appellants’ petition for a hearing by the Supreme Court was denied March 29, 1983. Grodin, J., did not participate therein.
Then Penal Code section 7 stated in pertinent phrt: . . . “1. the word ‘willfully,’ when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.”
(Cf. also Mueller, On Common Law Mens Rea (1958) 42 Minn.L.Rev. 1043.)
OriginaIly CALJIC No. 4.36 was said by the court to apply only to the franchise sections of the Corporations Code, without distinction between those involving fraud—where it was proper—and that not involving fraud—where, as I argue, it was not. Later, at the People’s request, the jury was told that the instruction had been read “the wrong way” and the instruction was reread as being applicable to the grand theft counts but not as to the franchise counts.