People v. Spence

Opinion

As is pertinent here, a jury convicted Francis Spence (Spence) of driving without a valid driver’s license. (Veh. Code, § 12500.)^[1] He was granted probation.

We granted transfer of this case to this court upon certification by the Appellate Division of the Superior Court of Riverside County to address the following question: May a defendant be convicted of driving with an invalid driver’s license in violation of section 12500 if he did not have actual knowledge that his license was suspended? (Cal. Rules of Court, rule 62.)

We conclude that he may, because section 12500 is a public welfare statute.

Facts

On January 30, 2001, Spence received a citation for a defective windshield or rear window. His driver’s license was suspended on June 10, 2001, for failure to appear as promised on a citation or for failure to appear after a court continuance.^[2] Notice of the suspension was sent to him on May 9, 2001, by certified letter, but the letter was returned unclaimed. The Vehicle Code mandates that drivers’ addresses be updated within 14 days of their moving to a new address.^[3] On November 22, 2001, when Spence was seen driving a vehicle, he did not have a valid license.

Discussion

1. Sections 12500 and 14601 et seq.,^[4] Their Precursors, and Documents Re Legislative Intent

In 1913, the statutes provided that no one was to drive a motor vehicle after December 31 of that year, unless they had complied with the requirements of the act, which included section 23, providing for the obtaining of a driver’s license. (Stats. 1913, ch. 326, § 23, pp. 649-651.)

For our purposes, the next substantive change to these provisions came in 1935 when the Vehicle Code was created. (Stats. 1935, ch. 27, p. 93.) Section 250, subdivision (a) made it a misdemeanor for anyone to drive without having a valid license.^[5] (Stats. 1935, ch. 27, § 250, p. 128.) Section 332 made it a misdemeanor for anyone to drive after the person’s “license or his driving privilege” has been suspended or revoked. (Stats. 1935, ch. 27, § 332, p. 142, italics added.)

A 1937 amendment to section 332 expanded it to also cover those drivers who had been refused a license by the Department of Motor Vehicles (Department). (Stats. 1937, ch. 556, § 4, p 1591.)

A 1949 amendment to section 332 introduced the requirement that the driver know that his license or driving privilege had been suspended or revoked or that he had been refused a license by the Department. (Stats. 1949, ch. 273, § 5, p. 494.)

The People pointed out below, without contradiction by Spence, that legislative intent materials do not exist for any of the foregoing enactments.

In 1959, the existing Vehicle Code was repealed and reenacted. (Stats. 1959, ch. 3, p. 1523.) The existing section 250 became section 12500. (Stats. 1959, ch. 3, p. 1613.) The new provision omitted the requirement that the license be valid. It dropped the language that a violation of the section was a misdemeanor, and according to the Office of Legislative Counsel, this enactment made no substantive changes to the existing code. (Legis. Counsel, Rep. on Assem. Bill No. 5 (1959 Reg. Sess.) The existing section 332 became new section 14601, which, although somewhat reworded, was substantially the same. (Stats. 1959, ch. 3, p. 1633.)

The statutes of 1961 first introduced an increased punishment for a second violation of section 14601. (Stats. 1961, ch. 278, § 1, p. 1311.)

The version of section 12500, under which Spence was prosecuted, provided, in pertinent part: “(a) No person shall drive a motor vehicle upon a highway, unless the person then holds a valid driver’s license issued under this code.” The current versions of sections 14601 and 14601.1 and the ones that existed when Spence committed his offenses provide, essentially, what they did in 1968, i.e., that one may not drive while one’s driving privilege has been suspended or revoked.

As is evident from the foregoing, the two provisions^[6] have coexisted, in varying forms, since 1923. To summarize, the express requirement of section 12500 and its precursors that the license be valid existed between 1935 and 1959 and was resurrected in 1993, the latter, according to documents on legislative intent, to “close a loophole in the law.” The knowledge requirement of section 14601 et seq. and its precursors has existed, without substantive change, since 1949. “ ‘ “Where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different intention existed.” ’ [Citations.]” (People v. Kuhn (1963) 216 Cal.App.2d 695 , 699 [ 31 Cal.Rptr. 253 ] [opn. of this court].)^[7]

2. CALJIC No. 16.631

CALJIC No. 16.631, which was given to this jury, provides: “It is not necessary for the People to introduce evidence that the defendant did not have a valid license to operate a motor vehicle. Whether the defendant was or was not properly licensed is a matter peculiarly within . . . his . . . own knowledge. The burden is on the defendant to raise a reasonable doubt as to . . . his . . . guilt of driving a motor vehicle upon a highway without being the holder of a valid driver’s license.”

And, finally, the holding in Shawnn F., supra, 34 Cal.App.4th 184 , was repeated and reaffirmed in People v. Garcia (2003) 107 Cal.App.4th 1159 [ 132 Cal.Rptr.2d 694 ], without reference to the language concerning the lack of evidence as to the People’s access to driver’s license information.^[8]

3. CALJIC No. 16.641

CALJIC No. 16.641 applies to section 14601 et seq. and provides: “If the evidence establishes beyond a reasonable doubt that prior to the commission of the alleged offense herein, the defendant was given notice of the [suspension] [revocation] of [his] [her] driving privilege, either by personal delivery thereof to the defendant or by the mailing of the notice, postage prepaid, addressed to the defendant at the address shown by the records of the Department of Motor Vehicles, you may[^[9] ] infer that the defendant had

4. In re Jorge M.

In In re Jorge M. (2000) 23 Cal.4th 866 [ 98 Cal.Rptr.2d 466 , 4 P.3d 297 ] (Jorge M.) the California Supreme Court determined whether a statute prohibiting the possession of certain unregistered assault weapons should be read to include a requirement that the defendant knew that the weapon he/she possesses had the features that made it a prohibited weapon. The court was called upon to determine if the prohibition was a public welfare offense, for which the Legislature would not intend that a knowledge or intent element apply. (Jorge M., supra, 23 Cal.4th at p. 872.) The court pointed out that many statutes enacted for the protection of the public, like traffic regulations, that involve light penalties and “no moral obloquy or damage to reputation” (ibid.) fall within this category. The court concluded that because of what it termed the “weighty penalty” for possession of a prohibited assault weapon, i.e., the crime is a felony/misdemeanor “wobbler,” carrying a maximum term of three years in prison, or 25 years to life, if the defendant had suffered strike priors, it was not “patently true” that the primary purpose of the statute was regulation, rather than punishment or correction. (Id. at p. 873.) Because the wording of the statute itself did not make clear that its intent was to be primarily regulatory, and because of the severity of the punishment it provided, the court analyzed a number of factors relevant to the determination whether it was a public welfare offense.

Considering the maximum punishment awaiting someone convicted of driving without a valid license, i.e., it is an infraction/misdemeanor “wobbler” with the maximum term being six months in jail (Pen. Code, § 17,

The first is the legislative history and context of the statute. The Jorge M. court pointed out that while it appeared that the prohibition on certain assault weapons was motivated by a public safety concern, many individuals asserted during the legislative process that it might be too broad if it covered weapons that had legitimate applications, like hunting and target practice. In fact, the law in its final version explicitly stated that it was not applicable to weapons with legitimate uses. It was then left to the owner to determine whether the weapon he/she possessed was one or the other. The court further noted that the legislative history revealed no intent to either include or exclude a knowledge requirement. In examining the prohibition’s statutory context, the Jorge M. court pointed out that other courts had not uniformly required or rejected a knowledge requirement for other possessory offenses. The cases that did not require such knowledge, the court noted, involved weapons that, without exception, were used exclusively for nefarious purposes. The court concluded, “Nothing in the [statute in question] suggests the Legislature regarded the distinctions between [weapons with no legitimate use and those with] to be so patent and definite that innocent and unknowing possession of a restricted assault weapon would be particularly unlikely.” (Jorge M., supra, 23 Cal.4th at p. 878.) It further pointed out that as to one group of weapons

Unlike the prohibition in Jorge M., section 12500 covers all individuals who drive without a valid license. Its statutory context is section 14601 et seq., which expressly contains a knowledge requirement, similar to the one governing machine guns noted in Jorge M.

Spence asserts that under the doctrine of preclusion, a more specific statute, which he asserts is section 14601 et seq., “governs” over a more general one, i.e., section 12500, suggesting that one may not be prosecuted under section 12500, but may be prosecuted under section 14601 et seq. However, the doctrine applies “where the general statute standing alone would include the same matter as the special act, and thus conflict with it, [in which case] the special act will be considered as an exception to the general statute____” (In re Williamson (1954) 43 Cal.2d 651 , 654 [ 276 P.2d 593 ].) However, section 12500 neither includes the same matter as section 14601 et seq., nor does it conflict with it. Rather, the two are like a number of penal statutes whose “general” form carries less punishment than one that carries an added element.^[13] Moreover, in his supplemental brief, Spence concedes that one with a suspended or revoked license may be prosecuted under section 12500.

The second and third factors in Jorge M. concern a recognition that “at least where the penalties imposed are substantial, [the generally applicable rule that every offense contains either a mens rea or criminal negligence requirement] can fairly be said to establish a presumption against criminal liability without mental fault or negligence, rebuttable only by compelling evidence of legislative intent to dispense with mens rea entirely.” (Jorge M., supra, 23 Cal.App.4th at p. 879.) Applying this to section 12500, we note that the penalty for its violation is not substantial. As Spence himself points out, violations of section 14601 et seq., in contrast, carry mandatory minimum jail sentences of five days and mandatory minimum fines of $300, with the same máximums as section 12500. This is for a first violation. Subsequent violations of those sections carry greater punishments. Section 12500, on the other hand, has no recidivist provisions.

The next factor is the seriousness of harm to the public. As Jorge M. noted, “when a crime’s statutory definition does not expressly include any scienter element, the fact the Legislature intended the law to remedy a serious and

The next Jorge M. factor begins with the premise that the offense carries a substantial penalty. (Jorge M., supra, 23 Cal.4th at p. 881.) It involves determining whether the prohibited conduct is such that its illegality would be obvious to the offender. (Ibid.) In other words, if the activity has long been considered legal, or if it is so similar to historically legal activity that it is difficult to distinguish the two, it is more likely that a knowledge requirement

The next factor concerns the difficulty of proof for the prosecution of any knowledge requirement read into the statute. (Jorge M., supra, 23 Cal.4th at pp, 884-886.) Applying this to section 12500, we note the existence of CALJIC No. 16.631 and its decisional law roots, both discussed above. We also note that, historically, knowledge or intent has never been read into statutes concerning the possession of a license or possession of a valid license by those who practice medicine or dentistry or who sell alcoholic beverages. (Khan v. Medical Board (1993) 12 Cal.App.4th 1834 , 1845 [ 16 Cal.Rptr.2d 385 ]; Anderson v. Board of Dental Examiners (1915) 27 Cal.App. 336 [ 149 P.

The last factor encompasses a consideration of the number of prosecutions anticipated under the law. In Jorge M., the California Supreme Court said of this factor, “[0]ur construction should not impose a scienter requirement that would unduly impede the ability to prosecute substantial numbers of violators.” (Jorge M., supra, 23 Cal.4th at p. 887.) While acknowledging that “[prosecutions for [section] 12500 violations number in the tens of thousands throughout the state each year,” Spence attempts to turn this factor inside out by asserting that the large number of prosecutions means that we should read a scienter requirement into the law to prevent those tens of thousands who do not know that their licenses have been revoked or suspended from being prosecuted. This approach runs contrary to the analysis in Jorge M.

5. Due Process

Spence cites People v. Garcia (2001) 25 Cal.4th 744 [ 107 Cal.Rptr.2d 355 , 23 P.3d 590 ] (Garcia), in support of his assertion that due process requires that a knowledge element be read into section 12500. In Garcia, the defendant was convicted of willfully failing to register as a sex offender. (Garcia, supra, 25 Cal.4th at p. 747.) Garcia’s defense was that he was unaware of his duty to so register. (Ibid.) The California Supreme Court held that a defendant must have actual knowledge of this duty, based on the requirement in the statute that the defendant willfully failed to act. (Id. at pp. 747, 752.) Elaborating, the court said, “The word ‘wilfully’ implies a ‘purpose or willingness’ to make the omission. [Citation]. Logically one cannot purposefully fail to perform an act without knowing what act is required to be performed. . . . ‘[T]he term “willfully” . . . imports a requirement that “the person knows what he is doing.” [Citation.] Consistent with that requirement, . . . knowledge has been held to be a concomitant of willfulness. . . .’ ” (Id. at p. 752.) The Garcia court quoted Lambert v. California (1957) 355 U.S. 225 , 227 [ 2 L.Ed.2d 228 , 78 S.Ct. 240 , 242] (involving registration for convicted felons), as follows: “ ‘Many [registration] laws are akin to licensing statutes in that they pertain to the regulation of business activities. But the [registration act at issue] is entirely different. Violation of its provisions is unaccompanied by any activity whatever, mere presence in the [place where the registration requirement exists] being the test. . . .’ ” (Garcia, supra, 25 Cal.4th at p. 753, italics added.) This language

Disposition

The judgment is affirmed.

McKinster, J., and Richli, J., concurred.

Appellant’s petition for review by the Supreme Court was denied April 13, 2005.