PEOPLE v. BARRETT

Reset A A Font size: Print

Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Royce Alan BARRETT, Defendant and Appellant.

No. C016755.

Decided: February 19, 1997

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, John A. O'Sullivan and Karen L. Ziskind, Deputy Attorneys General, for Plaintiff and Respondent. Cara DeVito, for Defendant and Appellant.

This case has to do with the scienter required for violation of tax laws.

The defendant was convicted of two counts of willful failure to file personal income tax returns for 1985 and 1986 with intent to evade a tax (former Rev. & Tax.Code, § 19406 [Stats.1983, ch. 1102, § 27], now § 19706) and 12 counts of willful failure to file quarterly employee payroll withholding tax returns for 1985 to 1988 (former Unemp.   Ins.Code, § 13095 [Stats.1980, ch. 1007, § 64], now § 2117.5).

The defendant makes several contentions.   In the published part of the opinion we address the claim that the trial court erred in failing to instruct upon the defendant's request on mistake of law, e.g., that a mistaken belief that under the law the workers in the defendant's office were independent contractors is a defense to the charge of willful failure to file employee payroll withholding tax returns.1  As appears, the defendant fails to show that the evidence warrants any such instruction.   We will affirm the judgment.2

FACTS AND PROCEDURAL BACKGROUND

The defendant is a chiropractor who operated a clinic in Redding.   In 1985, after losing an administrative appeal, he was assessed $6,438.24 by the Franchise Tax Board for unpaid income tax for the 1983 tax year.   For the tax year 1985 the defendant's adjusted gross income was $161,624.   For the tax year 1986 his adjusted gross income was $198,707.   He failed to file a personal income tax return with the Franchise Tax Board in either year and paid no state personal income tax in either year.

On September 25, 1978, the defendant filed a form with the Employment Development Department (EDD) registering as a prospective employer in connection with his chiropractic clinic.   The defendant filed a form DE-3, a quarterly employee payroll withholding tax return, declaring that he paid $1,479.77 in wages for the quarter ending April 30, 1979.   This was the last DE-3 defendant filed reporting the payment of wages.   EDD sent him a form notice demanding a DE-3 for the next quarter.   The defendant returned the notice with a declaration that he had paid no wages during that quarter and requesting that his name be removed from the employer mailing list.   He filed a DE-3 for the third quarter of 1979 declaring that he paid no wages that quarter.

During 1986 eight or nine people other than the defendant were paid for work at the clinic.   In 1987 the number rose to 13.   Some were paid on an hourly basis, some on a per treatment basis, and others were salaried.   The office manager of the clinic from January 1986 through January 1988 was the defendant's nephew, Ronald Hibler.   During this time the defendant received income for services provided at the clinic from insurance companies and by cash or check from patients.   All the income was recorded in the office computer.   The checks were deposited by Hibler, but the defendant retained the cash from his patients.

During Hibler's tenure no deductions were made in the payments to clinic workers for withholding of taxes or social security.   The defendant explained this to Hibler during his initial interview before he was hired:  the defendant did not believe that paying taxes was legal or an obligation and would not force others to perform that function that he did not believe in.   Hibler “signed a piece of paper with [his] uncle classifying [him] as an independent contractor.”   During Hibler's tenure no 1099 forms, used to report payments to nonemployees, were generated as to the payments to clinic workers.

Robert Smith, an EDD auditor, reviewed records of the defendant's chiropractic clinic and interviewed its workers.   EDD uses a regulatory test based on common law to distinguish between employees, whose wages must be reported on a DE-3 form, and independent contractors, payments to whom are not required to be reported on a DE-3 form.   In Smith's opinion, based upon defendant's supervision of and control over the workers, the nature of their work, the lack of any worker investment in the clinic, and a statutory requirement that unlicensed persons performing services in a chiropractor's office be under the chiropractor's direct supervision at least 50 percent of the time, the workers in the defendant's office were employees who received wages and for whom a DE-3 report was required.

When the prosecution concluded its case-in-chief the defendant offered no evidence.   In his closing argument to the jury, the defendant, in pro per, made the following pertinent claims.   I employed the people in my office only as independent contractors.   I relied on 1099 forms filed by insurance companies for reporting that income.   I would not sign a personal income tax report form and waive my Fifth Amendment right to privacy and my First Amendment right not to speak.   Having to waive these rights by signing tax forms is totally unconstitutional.   Where is the injury here?   The government never demanded information from me to establish that the workers were employees rather than independent contractors.   The question of their status was never adjudicated.   I have no power under statutes to compel workers to submit a W-4. Taxation is constitutional.   However, the government has plenty of information;  we do not have to be compelled to self-assess.   I did not evade taxes.

DISCUSSION

I

The defendant contends the trial court erred in failing to give the instructions he requested on mistake of law.3  He claims the offenses with which he was charged are specific intent crimes and the instructions are appropriate as pinpoint instructions.

The Attorney General concedes that the offenses are specific intent crimes and therefore a properly worded instruction on mistake of law should have been given on request.   But he argues that the trial court did not err because the defendant's proffered instructions are erroneous, misleading, and argumentative.

We asked the parties to address the related question whether the court was obliged to correct the defendant's instructions or to instruct sua sponte that mistake of law is a defense to the charge of failure to file employee payroll withholding tax returns.   As appears, the defendant fails to show the trial court erred in failing to instruct on mistake of law in failing to file a personal income tax return or to give the jury a correct instruction that a mistaken belief that the workers in the defendant's office were independent contractors is a defense to the charges of willful failure to file employee payroll withholding tax returns.  (Former Unemp.   Ins.Code, § 13095 [Stats.1980, ch. 1007, § 64], now § 2117.5.)

A.

 We begin by examining the circumstances in which a mistake of law affords a defense to a crime.  “It is an emphatic postulate of both civil and penal law that ignorance of a law is no excuse for a violation thereof.”   (People v. O'Brien (1892) 96 Cal. 171, 176, 31 P. 45.)   This means that lack of knowledge that the law proscribes an act is not a defense to its commission.

This principle, however, does not rule out other kinds of mistake concerning the law which do afford a defense to a criminal charge.   For example, although it is not a defense to a burglary predicated upon the entry of a structure for the purpose of obtaining property that the intruder did not know that this constituted burglary, it is a defense that the intruder believed he had a legal right to the property.  (See People v. Smith (1966) 63 Cal.2d 779, 792-793, 48 Cal.Rptr. 382, 409 P.2d 222.) 4

To draw out this and other relevant distinctions we examine the leading strands of the case law.5

The vast majority of cases involve a charge of theft in which the defendant asserts the belief that under the law of property he or she had a right to possess or appropriate the property subject to the charge of stealing.  (See, e.g., People v. Stewart (1976) 16 Cal.3d 133, 127 Cal.Rptr. 117, 544 P.2d 1317.) 6  This defense finds an early statutory expression in Penal Code section 511:

“Upon any indictment for embezzlement, it is a sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred in good faith, even though such claim is untenable.”

The cases applying this section, following the statutory element of “good faith”, say the defendant's belief must be both honest, i.e., bona fide, and not “wholly unreasonable.”  (See Stewart, supra, 16 Cal.3d at pp. 139-140, 127 Cal.Rptr. 117, 544 P.2d 1317.) 7

Despite the predominance of theft cases, the defense of ignorance or mistake of law extends beyond cases of theft.   For example, in People v. Goodin (1902) 136 Cal. 455, 69 P. 85, a landowner dug up an old road to close it after opening a new road traversing the same grade as an old road.   The court held that an honest belief that the construction of a new road legally constituted an abandonment of the old road negates the malice required under Penal Code section 588 for the crime of malicious injury to a public highway.

People v. Marsh, supra, 58 Cal.2d at pages 742-744, 26 Cal.Rptr. 300, 376 P.2d 300, presents the second most frequent occasion for a mistake of law defense, conspiracy to commit a crime.   The defendant sold electric machines as a device to cure ailments and was charged with conspiracy to commit a misdemeanor violation of the Business and Professions Code section which prohibits the practice of medicine without a license.   The Supreme Court said that the trial court erred in instructing the jury that conspiracy to commit a crime required only an agreement to commit the act which constituted the crime 8 :

“[E]ven though a conspiracy has as its object the commission of an offense which can be committed without any specific intent, there is no criminal conspiracy absent a specific intent to violate the law.   That is, to uphold a conviction for conspiracy to commit a ‘public welfare offense’ there must be a showing that the accused knew of the law and intended to violate it.”  (Id. at p. 743, 26 Cal.Rptr. 300, 376 P.2d 300.) 9

The rationale of Marsh is that the crime of conspiracy is defined in terms of an “ ‘evil’ or ‘corrupt’ agreement to do an unlawful act.”  (Id. at p. 743, 26 Cal.Rptr. 300, 376 P.2d 300.)   For this reason, where the target offense is a public welfare offense, i.e. one not wrongful per se, that is not shown unless there is proof the defendant knows that the target act is unlawful.   This showing is unnecessary, however, where the act is malum in se.

The defense of mistake of law has long been recognized in cases not governed by express statutory language.   The defense was recognized early on as to theft offenses other than embezzlement.10  People v. Eastman (1888) 77 Cal. 171, 172, 19 P. 266, held, without extended discussion of the larceny statute, that “a mistaken idea of legal rights honestly entertained” was a defense in the case where a man, who pledged a mare, retook it from the owner and pledged it to another in the belief he could offset his claim for wages against the amount due on the pledge.  Eastman reasons that the honest belief negates the intent to steal required for larceny.11

 From these cases we distill three ways in which a mistake of law provides a defense to a charged crime.   The first occurs when a statute, such as Penal Code section 511, provides that a specified mistake of law affords a defense.   The second arises when the mistake of law negatives the existence of a state of mind that is an express element of the offense, e.g., as in Eastman and Goodin.   The third arises when the claimed mistake of law negatives the existence of an implied element of general mens rea (see Pen.Code, § 20), as in Marsh.  (See Perkins & Boyce (3d ed.   1982) Criminal Law, p. 1036.)

 Generally stated, the doctrine provides that one's ignorance or mistake as to a matter of law is a defense to a criminal charge when it negatives the existence of a state of mind that is an element of the offense or when it establishes a state of mind that constitutes a defense under a rule of law relating to defenses.  (Also see, e.g., 1 Model Pen.Code & Commentaries (1985) § 2.04 and com. 1, pp. 267-272.)   The defense is available when the criminal law defining the offense requires that the culpable act be committed with knowledge, fraudulently or maliciously, and the culpable act is so defined that ignorance or mistake regarding the law negates the mental state.  (See, Perkins & Boyce, supra, Criminal Law, at pp. 1031-1036.)

The materiality of a claim of ignorance or a mistake as to a matter of law necessarily turns on the precise elements of the offense or defense.   Since the elements are prescribed (or implied) by statute the question, in the first instance, “ ‘appertains to the department of statutory construction․’ ”  (O'Brien, supra, 96 Cal. at p. 177, 31 P. 45, quoting from Halsted v. State, 41 N.J.L. 552.)   The particular claim must be assessed against the statutory elements to determine if the mistake negates an express or implied element of the offense or establishes a statutory defense.

Whether the bona fide mistaken belief or ignorance of the defendant must have a reasonable basis turns on the same considerations.   It also may be required where the theory of the defense is absence of scienter.   The scienter requirement is satisfied by criminal negligence, and the absence of any reasonable basis for a mistaken belief or ignorance of the law would appear to be sufficient.   However, where the defense goes to the negation of a mental state which is an element of the offense, the relevance of good faith turns upon the nature of the element and the means of its negation.

B.

The Attorney General challenges the defendant's proposed instructions as failing to assert that “[t]he law of mistake requires that the mistake be held in good faith.”   He relies on three cases, two of which, Stewart and Vineberg, are embezzlement cases governed by the good faith requirement of Penal Code section 511, and the third, Flora12 , wholly relies on Stewart.

C.

 In this case, two offenses are in issue.   They are similar in structure.   Each makes it an offense, “[to] willfully fail[ ] to [timely] file any return ․ with intent to evade any tax imposed by this [division or part]․”  (Compare former Rev. & Tax.Code, § 19406, former Unemp.   Ins.Code, § 13095 and Unemp.   Ins.Code, § 2117.5.) There is no separate statutory defense.   For this reason a defense of ignorance or mistake of law is available only if it shows the absence of a mental state which is an element of the offense.

D.

Willful Omission to File

There are two mental states required as elements of the offenses at issue.   The first is a “willful” failure to file a required form.

We will assume for the sake of discussion that “willfully” is a word that has acquired “a peculiar and appropriate meaning in law” (Code Civ. Proc., § 16) such that when used in a penal statute outside the Penal Code it ordinarily must be construed as if subject to the Penal Code section 7 definition.   (See, e.g., People v. Mancha (1974) 39 Cal.App.3d 703, 719, 114 Cal.Rptr. 392.)

Penal Code section 7 provides:

“ ․ unless otherwise apparent from the context:

“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.”

The introductory clause says there may be statutory uses of “willfully”, “apparent from the context”, which are not defined or limited by section 7. (See In re M.S. (1995) 10 Cal.4th 698, 713, fn. 5, 42 Cal.Rptr.2d 355, 896 P.2d 1365.)

Section 7 also defines “willfully” in a manner dependent upon its grammatical context, as the “intent with which an act is done”, to wit, “a purpose or willingness to commit the act, or make the omission” proscribed by the criminal law.   It follows from this definition that what “willful” means is “entirely dependent upon the act [or omission] to which [it] is appended․  Its significance therefore is wholly dependent upon the grammar of the specific offense in which the term is employed.”  (In re Stonewall F. (1989) 208 Cal.App.3d 1054, 1066, 256 Cal.Rptr. 578;  see also People v. Fabris, supra, 31 Cal.App.4th at pp. 694-695, 37 Cal.Rptr.2d 667.)

 Where an offense is defined in terms of an omission, a failure to act, a violation can occur only where the defendant is under an existing legal duty to act.  (See People v. Heitzman (1994) 9 Cal.4th 189, 197, 37 Cal.Rptr.2d 236, 886 P.2d 1229.)

The “act” to which the term “willfully” is addressed in the statutes at issue is an omission to file a required tax form.   As applied to an omission to file such a form Penal Code section 7 requires “a purpose or willingness to ․ make the omission”, necessarily requiring knowledge that the law of taxation imposes the obligation to file the form.

 Thus, the willful failure to file the required form can be found only if the defendant knew that he was obliged under the law of taxation to file the form.13  That is to say, in the context of these tax statutes “willfully” requires an intent to violate the law in the sense of violating a known obligation to report as required.14

This straightforward reading of the tax statutes is reinforced by the consideration that there are allied misdemeanor offenses which do not require that the omission be willful, that proscribe the bare failure to file a return.  (See former Rev. & Tax.Code, § 19401, Stats.1984, ch. 1490, § 36, now § 19701;  former Unemp.   Ins.Code, § 13090, Stats.1980, ch. 1007, § 64, and Unemp.   Ins.Code, § 2117.)

 Since the offenses defined by the tax statutes are not public welfare offenses, whose purpose is to protect public health and safety, a scienter element must be implied where none is specified, minimally requiring criminal negligence in the failure to file a return.  (See, e.g., People v. Simon (1995) 9 Cal.4th 493, 519-522, 37 Cal.Rptr.2d 278, 886 P.2d 1271;  People v. Allen (1993) 20 Cal.App.4th 846, 851, 25 Cal.Rptr.2d 26.)

 The coupling of these correlative and distinct offenses, one requiring and one not requiring a “willful failure”, reinforces the grammatical conclusion that “willfully”, when it is used as in former Revenue and Taxation Code section 19406, now section 19706, requires more than criminal negligence, to wit, knowledge of the legal requirement to file a return.  (See People v. Kuhn (1963) 216 Cal.App.2d 695, 699, 31 Cal.Rptr. 253;  c.f., In re Stonewall F., supra, 208 Cal.App.3d at p. 1067, 256 Cal.Rptr. 578;  see generally, Simon, supra, 9 Cal.4th at p. 516, 37 Cal.Rptr.2d 278, 886 P.2d 1271.)

E.

Intent to Evade Tax

 There is a second and express mental state set out in the statute;  the defendant's willful failure must be with the intent to evade the tax.   This requirement avoids rendering every willful failure to file a return felonious, e.g., where the taxpayer procrastinates and knowingly misses the filing deadline but intends to file and to pay the tax shortly thereafter.15

A mistake of law is material to the case if it negates the existence of one of these two mental states.

In this case, the defendant fails to specify the particular claim or claims of ignorance or mistake of law he contends were tendered in the trial court.   He offers only the vague assertion that he put in issue a defense predicated on “his honest but mistaken belief that his conduct did not violate the law․”  As related, insofar as this is a claim he was ignorant of the penal statutes under which he was convicted, it is immaterial.   Unless expressly prescribed, the lack of knowledge that the law proscribes an act is not a defense to the commission of the offense.

 A defense is put in issue in a criminal proceeding, triggering an instruction, when there is substantial evidence supportive of the defense.  (E.g., People v. Flannel (1979) 25 Cal.3d 668, 684-685, 160 Cal.Rptr. 84, 603 P.2d 1.)   In this context, “Substantial evidence is evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence that a reasonable jury could find persuasive.”  (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8, 47 Cal.Rptr.2d 569, 906 P.2d 531.) It is the defendant's burden on appeal to establish error.  (See, e.g., 9 Witkin, Cal. Procedure (3d ed.   1985) Appeal, §§ 268, 479.)   Hence, to make out a claim of error in failing to instruct the defendant must marshal the evidence which he contends warrants the requested instruction.

 As the Attorney General notes, mistake of law in this case is material because it may in some cases bear on a requisite mental state element of the offense;  thus it presents a problem in the realm of pinpoint instruction.  (See People v. Saille, supra, 54 Cal.3d at pp. 1118-1119, 2 Cal.Rptr.2d 364, 820 P.2d 588.)   Because a pinpoint instruction presupposes that the jury has been adequately instructed on the basic elements of the offense charged (People v. Brady (1987) 190 Cal.App.3d 124, 135, 235 Cal.Rptr. 248), it is required “upon request when there is evidence supportive of the theory, but [is] not required to be given sua sponte.”  (Saille, supra, at p. 1119, 2 Cal.Rptr.2d 364, 820 P.2d 588.)

II

We next consider the evidence and the defendant's arguments and request for instructions in the trial court in light of these precepts.

A.

Failure to File a Personal Income Tax Return

 There is nothing in the evidence which supports an inference that the defendant's failure to file a personal income tax return was not “willful” in the required sense, i.e., that defendant did not know that the tax law obliged him to do so.   Given his age, attainments, the prevalence of knowledge of the state income tax obligation, and the fact that defendant had been assessed in the past for underpayment of personal income taxes, there is nothing in the record that supports an inference that defendant was unaware of the statutory obligation to file a return.   Since there is no evidence he was acting under a mistaken belief and he made no claim suggesting such a mistake, there was no need to instruct on any defense of this nature.

 Nor does the evidence suggest that the defendant failed to file the personal income tax returns without the intent to evade taxation because of some mistake or ignorance of the law.   Having knowledge of the obligation to report income, one who fails to do so for a protracted period is substantially certain that a result will be evasion of the tax.   Defendant did assert in argument that he was relying on the reports of payments to him by insurance companies as a report of that income to the state government.   However, even if failure to report this income is deemed not to be an evasion, the defendant offered no explanation of how his reporting requirement was met with respect to the cash income received through the business.

The only other suggestion defendant made in argument was that he believes the requirement of filing a personal income tax return is unconstitutional.   We need not resolve the question whether such a constitutionally-grounded belief negates a willful failure to file, i.e., knowledge of the legal obligation to file.16  Here there is a total absence of evidence that the defendant failed to file a return because he believed that he had no legal duty so to do grounded on the constitutional provisions he identified in his argument.   The defendant's closing argument is not evidence.

That defendant failed to pay because of the considerations announced in his closing argument is no more or less likely given the state of the evidence than a myriad of other suppositions that might be entertained to explain his failure to file.   For example, one might suppose equally as well that he honestly believed he had insufficient income to require filing under the tax statutes or that he failed to file the return because a third party placed him under duress, threatening his life if he complied with the tax law.   Speculation about the defendant's mentation is an insufficient basis upon which to require instruction.  (See People v. Wilson (1992) 3 Cal.4th 926, 942, 13 Cal.Rptr.2d 259, 838 P.2d 1212.)   In sum, there was no requirement to instruct on mistake of law as to the failure to file an income tax return because there is no evidence upon which a jury could have found a reasonable doubt under this theory.

B.

Failure to File Employee Payroll Withholding Tax Returns

 That leaves the offense of willful failure to file employee payroll withholding tax returns.

The defendant asserted in his closing argument that the workers in his office were independent contractors.   If that had been the case the defendant would have had no legal obligation to file a return listing the payments to these workers, or to tender withholding taxes.

 The obligation to file a return under Unemployment Insurance Code section 13021 pertains to employers who pay wages to “employees.”   (Unemp.Ins.Code, §§ 13020-13021.)   Whether an individual is an employee for these purposes is determined by the usual common law rules applicable in determining an employer-employee relationship.  (22 Cal.Code Regs. § 4304-1.) 17  The determination of the status is one of fact if it is dependent upon the resolution of disputed evidence or inferences and one of law if the evidence is undisputed.  (See, e.g., Millsap v. Federal Express Corp. (1991) 227 Cal.App.3d 425, 431-432, 277 Cal.Rptr. 807;  c.f., e.g., S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 349, 256 Cal.Rptr. 543, 769 P.2d 399.)

Here there is no material dispute of fact concerning the status of the defendant's workers.   As a matter of law, under the test of an employee relationship of 22 California Code of Regulations section 4304-1 (fn.17, ante ), at least some of the workers in the defendant's clinic were employees.18

It is conceivable that the defendant nonetheless honestly believed that all of the workers in his office were independent contractors under the law and for that reason did not know that he was obliged to file employee payroll withholding tax returns.   Here again, however, there is an absence of evidence that this is the reason that the defendant failed to make the required filing.   The only assertion of the defendant in the evidence concerning his reason for failing to withhold taxes of his workers is his generic explanation to Hibler that he did not believe that paying taxes was legal or an obligation and would not force others to do so.   Once again, his assertion in closing argument that he believed his employees were independent contractors is not evidence.   The trial court was not constrained to give an instruction on a defense predicated on such an unsworn assertion.   In sum, the trial court did not err in declining his requested instruction on this defense.

III-V*

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   The Reporter of Decisions is directed to publish the opinion except for Parts III through V of the Discussion.

2.   In the unpublished part of the opinion we reject the defendant's claims that the trial court prejudicially erred in denying him the right to counsel, in permitting testimony about uncharged misconduct, in failing to adequately instruct on the definition of employee, and in imposing consecutive sentences.

3.   Defendant tendered requested instructions containing the following assertions.   On the issue of willfulness it did not matter if the defendant correctly interpreted the law, if he acted in good faith reliance upon what he actually believed to be the law.   The issue is defendant's intent, what he believed to be his legal duty.   A defendant does not act willfully if he acts through negligence or ignorance of a duty imposed on him by law.   An action taken on erroneous belief that a defendant has no legal obligation to pay a particular tax is not tax evasion but merely a mistaken attempt at tax avoidance.   Willfulness is negated by the defense of a good faith mistake of the law's requirements.

4.   In People v. Smith the defendant tendered a mistake of law defense based on the specific intent language in People v. Marsh (1962) 58 Cal.2d 732, 742-744, 26 Cal.Rptr. 300, 376 P.2d 300.   Convicted of murder of the first degree on a burglary felony murder theory for a killing that occurred when he was thwarted in an attempt to pass forged checks in a store, he sought to establish that he was ignorant of the law of burglary in California.   The trial court sustained an objection to the question.   The Supreme Court upheld the trial court, reasoning that the specific intent necessary for burglary is the intent to commit larceny or any felony inside the structure and not the intent to commit burglary.   The defendant had conceded that he entered the store to cash a check he knew had been forged;  hence it was irrelevant whether he knew that his act violated the law of burglary.  (Id. at pp. 792-793, 48 Cal.Rptr. 382, 409 P.2d 222.)

5.   Both the Attorney General and the defendant cite People v. Vineberg (1981) 125 Cal.App.3d 127, 137, 177 Cal.Rptr. 819, and People v. Flora (1991) 228 Cal.App.3d 662, 669, 279 Cal.Rptr. 17, for the generalization that mistake of law is a valid defense to specific intent crime if it negates the required specific intent.  (Also see, e.g., People v. Howard (1984) 36 Cal.3d 852, 863-864, 206 Cal.Rptr. 124, 686 P.2d 644.)   While that is not incorrect, it is incomplete and ties the defense to the unfortunate and ambiguous term “specific intent”, which often inhibits rather than advances legal analysis.  (See, e.g., People v. Fabris (1995) 31 Cal.App.4th 685, 696, fn. 10 and pp. 698-699, 37 Cal.Rptr.2d 667;  see also People v. Saille (1991) 54 Cal.3d 1103, 2 Cal.Rptr.2d 364, 820 P.2d 588 [“specific intent crime”, as used in Penal Code section 28 includes murder committed with implied malice];  c.f., e.g., People v. Hood (1969) 1 Cal.3d 444, 456, 82 Cal.Rptr. 618, 462 P.2d 370 and authorities cited therein;  1 Robinson, Criminal Law Defenses (1984) § 62(c)(3), p. 254.)

6.   A related but distinct defense to a theft charge arises when the defendant misapprehends the legal status of property and because of a mistake of fact, e.g., through carelessness in identification, appropriates the property of another.  (See, e.g., People v. Devine (1892) 95 Cal. 227, 30 P. 378.)   While analytically distinct, these defenses to larceny are sometimes discussed as a unit.  (See, e.g., People v. Butler (1967) 65 Cal.2d 569, 572-573, 55 Cal.Rptr. 511, 421 P.2d 703.)   Presumably both defenses might be presented in one case.

7.   “Good faith” sometimes entails an element of care.  (But see, generally, Raab v. Casper (1975) 51 Cal.App.3d 866, 872, 124 Cal.Rptr. 590.)  “Good faith” is “ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one's duty or obligation.”   (People v. Nunn (1956) 46 Cal.2d 460, 468, 296 P.2d 813.)  “Intention to defraud” includes false representations made in the actual belief that they were true if that belief is not based on reasonable grounds.In light of Penal Code section 490a, enacted in 1927, which provides that “theft” shall be substituted for “larceny, embezzlement, or stealing” in all statutes, Penal Code section 511 may now govern the defense of mistake of law as to every offense embodying theft.   We imply no view on whether the rationale concerning the construction of the term “good faith” should be extended to every variety of theft, regardless whether there is a violation of trust or conduct in the nature of fraud employed to gain dominion over the property in question.

8.   The jury was instructed:  “Criminal intent is present whenever a person knowingly and voluntarily performs an act or acts which the law declares to be a crime.   It does not require a knowledge that such conduct is wrong and may even exist in the presence of a belief that an act is right and lawful.”  (Id. at p. 742, 26 Cal.Rptr. 300, 376 P.2d 300.)

9.   It should be noted that the term “specific intent”, as used in these cases, is not the specific intent involved in the distinction between a general and specific intent.   Rather it is specific in the literal sense of specifying the precise intent required for commission of the proscribed act.

10.   Eastman precedes the enactment of Penal Code section 490a,;  see footnote 7, ante.

11.   The larceny statute at the time was Penal Code section 484, as enacted in 1872:  “Larceny is the felonious stealing, taking, carrying, leading, or driving away the personal property of another.”   The term “felonious” signifies the common law element of criminal intent to steal, “animus furandi.”  (See, e.g., Butler, supra, 65 Cal.2d at p. 572, 55 Cal.Rptr. 511, 421 P.2d 703; 50 Am.Jur.2d, Larceny, § 35.)

12.   Flora involved a charge of felony violation of a child custody order, requiring the intent to deprive another of rightful custody or visitation.  Flora holds that this charge is subject to a defense of mistake of law concerning the legal right to custody, but asserts that the defense is only available if the mistake was held in good faith.  (228 Cal.App.3d at p. 669, 279 Cal.Rptr. 17.)   The only support given is a bare citation to Stewart, which, as noted, involved a statutory requirement of good faith.   A case is not authority for a proposition that was neither considered nor decided.  (See, e.g., People v. Toro (1989) 47 Cal.3d 966, 978, fn. 7, 254 Cal.Rptr. 811, 766 P.2d 577.) Accordingly, we conclude that the question is an open one, notwithstanding Flora.

13.   This is not to say that every willful omission requires knowledge that the law imposes a duty upon one to act.  (See Pen.Code, § 7, subd. (1).)  In at least one instance an omission by “willful violation” of a statute is expressly defined as a failure to comply with the statutory obligation when the defendant “reasonably should have known of his or her obligations under the public works law․”  (Lab.Code, § 1777.1.)Moreover, express statutory definition is not the only path to this result.   For example, an omission satisfying the description of a willful endangerment of an elder or dependent adult (Pen.Code, § 368) could require only knowledge that the person is endangered.   The criminal sanction is limited to those under a legal duty to act.  (See People v. Heitzman, supra, 9 Cal.4th at pp. 197-199, 37 Cal.Rptr.2d 236, 886 P.2d 1229.)   However, the statutory text-“willfully ․ permits the elder or dependent adult to be placed in a situation such that his or her person or health is endangered ․”-can be applied regardless whether the defendant who fails to act knows that the law imposes a duty to act.

14.   People v. Smith (1984) 155 Cal.App.3d 1103, 203 Cal.Rptr. 196 addresses the parallel language in Revenue and Taxation Code section 19406 which proscribes willfully executing a false tax return with an intent to evade taxation.   Citing only federal tax case law, Smith asserts that “[t]he ‘wilful’ element of both violations means defendant voluntarily and intentionally violated a known legal duty․”  (Id. at p. 1157, 203 Cal.Rptr. 196, citations omitted.)

15.   Smith, supra, 155 Cal.App.3d at page 1157, 203 Cal.Rptr. 196, offers a somewhat different explanation for the meaning of the statutory terms “willfully” and “with intent to evade taxation.”   We cannot fathom the explanation.

16.   The defendant never provided any elaboration of these claims.   The Fifth Amendment privilege does not extend to a taxpayer's failure to file any return.  (See United States v. Sullivan (1927) 274 U.S. 259, 263-264, 47 S.Ct. 607, 607-608, 71 L.Ed. 1037, 1039-1040;  People v. McLemore (1985) 166 Cal.App.3d 718, 720-721, 212 Cal.Rptr. 665.)In Cheek v. United States (1991) 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 the Supreme Court faced a somewhat analogous question under federal tax law.   As a matter of federal statutory construction the term “willfully”, as used in the federal criminal tax statutes, had been construed to mean a voluntary, intentional violation of a known legal duty.  (Id. at pp. 199-201, 111 S.Ct. at pp. 609-610, 112 L.Ed.2d at pp. 628-629.)   The defendant asserted a defense of good faith belief that the income tax law is unconstitutional as applied to him.   The majority opinion holds this is not a cognizable defense.  (Id. at pp. 204-206, 111 S.Ct. at pp. 611-613, 112 L.Ed.2d at pp. 631-633.)   The majority opinion distinguishes United States v. Murdock (1933) 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381, in which a conviction for willful refusal to answer questions of a revenue agent was reversed for failure to instruct that a good faith refusal to answer the questions on the grounds of a claim against self incrimination was a defense, as a case not grounded in the Constitution, but a privilege not to answer, for which federal tax law provided no remedial procedure.  (Cheek, 498 U.S. at p. 205, 111 S.Ct. at pp. 612, 112 L.Ed.2d at p. 632, fn. 10.)

17.   22 California Code of Regulations, section 4304-1, says that the common law rules apply and provides the following guidance.   The most important factor in establishing the employer-employee relationship is the right of the principal to control the manner and means of accomplishing the desired result.   The right of the principal to discharge at will is strong evidence of this.   In equivocal cases various factors should be taken into consideration, including whether the putative employee is engaged in a separately established occupation or business, whether such work is usually done without supervision by the principal, the skill required, whether the principal provides the instrumentalities, tools, and place of work, the duration of the work, the method of payment, whether the work is part of the regular business of the principal, whether the parties believe they are creating an employer-employee relationship, the extent of actual control exercised by the principal, whether the principal receives the benefits of the service in a business enterprise capacity.  (Id. subd. (a)(1)-(a)(10).)As to the belief of the parties, the regulation provides that an agreement that the relationship is one of principal and independent contractor is evidence of their intent.   Regardless of such an avowal, if the relationship, as described in the agreement or in actual fact, entails the right of control by the principal, it is an employer-employee relationship.  (Id. subd. (b)(5).)

18.   The defendant was required to file a return if any of the workers were employees.   Accordingly, the defendant's contention on appeal that the trial court erred in failing to instruct sua sponte in more detail on the law concerning the employer/employee and principal/independent contractor relationships so that the jury could determine the nature of the relationships as a matter of fact is not meritorious.   Since some of the workers were incontestably employees, the ordinary term “employee” adequately conveyed the criteria of the required relationship;  the case presents no material issue of non-existence of the relationship on technical grounds.  (See People v. Rogers (1985) 172 Cal.App.3d 502, 513-514, 217 Cal.Rptr. 809.)

FOOTNOTE.   See footnote 1, ante.

BLEASE, Associate Justice.

PUGLIA, P.J., and DAVIS, J., concur.

Copied to clipboard