F 1.20a Willfully Defined: Knowledge Element
*Add to CJ 1.20:
To willfully commit an act, a person must intentionally commit the act with actual knowledge of the facts [, including the reasonable, natural and probable consequences of the act,] which bring the act within the provisions of the statute under which [he] [she] is charged.
If you have a reasonable doubt as to whether the defendant committed the act with actual knowledge of the above facts, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.
OR
[To willfully commit an act, a person must, with knowledge of what [he] [she] is doing, intentionally commit the act. This requires the prosecution to prove that the defendant committed the act with actual knowledge of the following: that the defendant __________ [insert requisite facts and/or consequences; e.g., that the arresting person was a police officer, that the substance was contraband and in the possession of the defendant, that the act was likely to result in a violent injury, etc.].]
If you have a reasonable doubt as to whether the defendant committed the act with actual knowledge of the above facts, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.
Points and Authorities
PC 7(1) defines willfully as “a purpose or willingness to commit the act, or make the omission referred to.” However, knowledge is also an element of “willful” action since a person must know what he or she is doing and intend to do the act. (See People v. Garcia (2001) 25 C4th 744, 752-754 [107 CR2d 355] [instruction on the knowledge element of general intent is required sua sponte]; In re Trombley (48) 31 C2d 801, 807 [193 P2d 734]; see also People v. Simon(95) 9 C4th 493, 507-23 [37 CR2d 278]; In re Jerry R. (94) 29 CA4th 1432, 1438 [35 CR2d 155].) This includes knowledge of the nature and/or consequences of the act which make it criminal. (See e.g., Bryan v. U.S. (98) 524 US 184, 193 [141 LEd2d 197; 118 SCt 1939] [possession of unregistered machine guns statute requires proof that the defendant knew the weapon he possessed had the characteristics that brought it within the statutory definition of a machine gun];Staples v. U.S (94) 511 US 600, 602 [128 LEd2d 608; 114 SCt 1793] [federal statute making it unlawful to possess an unregistered machine gun properly construed as requiring proof that defendant knew the characteristics of the firearm that he possessed met the statutory definition]; People v. Colantuono (94) 7 C4th 206, 219 [26 CR2d 908] [willful commission of a violent act requires knowledge that an unlawful touching is substantially certain to result]; see also People v. Osband (96) 13 C4th 622, 681 [55 CR2d 26] [“to intend means to have in mind as a purpose or goal… [and should be defined] in terms of purpose or knowledge” [internal citations and punctuation omitted]; People v. Simon (95) 9 C4th 493, 507-23 [37 CR2d 278]; People v. Honig (96) 48 CA4th 289, 334, [55 CR2d 555] [knowledge is “concomitant of willfulness”]; cf. People v. Daniels (53) 118 CA2d 340, 345 [257 P2d 1038] (concurring opinion of Shinn, J.) [“… I am convinced that complete lack of knowledge of the nature of an article, even a machine gun, possession of which is forbidden, would be a good defense”].)
Moreover, the term willfully has been equated with general criminal intent. (See People v. Lee (94) 28 CA4th 659, 664 [33 CR2d 782]; People v. Stark (94) 26 CA4th 1179, 1182-83 [31 CR2d 887].) Therefore, because general criminal intent requires knowledge of the nature and consequences of the act which bring it within the terms of the statute (People v. Lopez (86) 188 CA3d 592, 598 [233 CR 207]) the term “willfully,” when used to describe the general criminal intent mens rea of an offense, should include such an element. (See FORECITE F 3.30a; see also, Ninth Circuit Model Criminal Instructions (1995) No. 5.05, p. 79 [defendant must have knowingly intended to do “what the statute prohibits”]; U.S. v. Nguyen (9th Cir. 1995) 73 F3d 887, 890 [“… a person is not criminally responsible unless ‘an evil-meaning mind’ accompanies ‘an evil-doing hand.’ [Citation.]”].)
For example, PC 148(a) is a general criminal intent statute which proscribes the act of “willfully” resisting arrest, such as, running away from an arresting officer. However, merely showing that the defendant intentionally committed such an act does not establish general criminal intent. It must also be shown that the defendant had knowledge of the particular facts proscribed by the statute: e.g, that the arresting person was a police officer. “Merely running away from someone is not resisting arrest. Running from a plain clothes officer who does not identify that he or she is an officer could not, for instance, be a crime.” (Lopez 188 CA3d at 598; see also, FORECITE F 9.00b [willful commission of violent act for assault requires knowledge of the violent nature of the act]; People v. Simon (95) 9 C4th 493, 519-22 [37 CR2d 278] [“willfully” selling a security by means of misrepresentation or omission of material fact (per Corp C 25401 and Corp C 25540) requires knowledge of the “falsity or misleading nature of a statement or of the materiality of an omission ….”]; People v. Beaugez (65) 232 CA2d 650, 657-58 [43 CR 28] [willful infliction of corporal punishment on a child (PC 273d) requires knowledge of the consequences of the act committed].)
The comment to Instruction No. 5.05 of the Ninth Circuit Model Jury Instructions (1995 Revision) provides a lengthy analysis of the knowledge required to establish willfulness. The Ninth Circuit Committee concluded that when willfulness is an element of the charge, the willfulness instruction should track the relevant statutory definition of the offense and explain “in language tailored to the facts, that the offense must have been committed knowingly, intentionally and for the purpose of accomplishing what the statute prohibits.” (Id. at p. 79.)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See Bryan v. U.S. (98) 524 US 184 [141 LEd2d 197; 118 SCt 1939]; Staples v. U.S (94) 511 US 600 [128 LEd2d 608; 114 SCt 1793]; Lambert v. California (57) 355 US 225 [2 LEd2d 228; 78 SCt 240]; see also generally, FORECITE PG VII(C).]
See also FORECITE F 3.30a.
NOTES
Constructive Knowledge: If the statute allows conviction by criminal negligence, knowledge may be proven constructively by proof that the defendant “reasonably should have” known the required fact. (See PC 20; see also, CJ 3.36 for definition of criminal negligence.) Because “criminal negligence must be evaluated objectively” (Walker v. Superior Court (88) 47 C3d 112, 136 [253 CR 1]), in any case where wrongful intent is absent due to the lack of actual knowledge, the “heightened requirements” of criminal negligence require the jury to find that a “reasonable person in defendant’s position would have [had the requisite knowledge].” (Williams v. Garcetti (93) 5 C4th 561, 574 [20 CR2d 341]; see also People v. Simon, 9 C4th at 507-23 [willfully requires actual knowledge or criminal negligence]; FORECITE F 5.12f [constructive knowledge (“should have known”) requires consideration of reasonable person in defendant’s position].)
Willful Blindness Or Deliberate Ignorance (Federal/Model Penal Code Rule): In the federal system, it is recognized that there is a subtle distinction between knowledge and lesser mental states, such as recklessness and negligence, and, therefore, the courts have “reviewed knowledge instructions carefully.” (U.S. v. Aguilar (9th Cir. 1996) 80 F3d 329, 331.) In U.S. v. Jewel (9th Cir. 1976) 532 F2d 697, 700, the 9th Circuit approved an exception to the requirement of “actual knowledge” where there is evidence that the defendant deliberately omitted making an inquiry in order to avoid having actual knowledge. A deliberate ignorance instruction was given as an alternative to finding of “actual knowledge.” The court stated that “[t]he substantive justification for the rule is that deliberate ignorance and positive knowledge are equally culpable.” (U.S. v. Jewel, 532 F2d at 700.) Hence, Jewel, which utilized Model Penal Code 2.02(7), requires a finding of “willful blindness.” (See U.S. v. Aguilar, 80 F3d at 331-33.) “A Jewel instruction is properly given only when defendant claims a lack of guilty knowledge and the proof at trial supports an inference of deliberate ignorance. It is not enough that defendant was mistaken, recklessly disregarded the truth, or negligently failed to inquire. Instead, the government must present evidence indicating that defendant purposely contrived to avoid learning all of the facts in order to have a defense in the event of subsequent prosecution. Absent such evidence, the jury might impermissibly infer guilty knowledge on the basis of mere negligence without proof of deliberate avoidance.” (U.S. v. Pacific Hide & Fur Depot, Inc. (9th Cir. 1985) 768 F2d 1096, 1098-99.)
Negation Of Knowledge By Intoxication Or Mental Impairment: [See FORECITE F 1.20b]
(See also Model Penal Code, § 2.02 [“willfully” defined as “knowingly”].)
F 1.20b
Willfully: Negation Of Knowledge Element
*Add to CJ 1.20:
To prove that the defendant acted willfully, the prosecution must establish beyond a reasonable doubt that the defendant committed the prohibited act with actual knowledge of the facts [, including the reasonable, natural and probable consequences of the act,] which bring the act within the provisions of the statute under which the defendant is charged. If the evidence shows that the defendant [acted under an honest mistake of fact as to the act committed] [was intoxicated] [was suffering from mental disease, defect or disorder] [was suffering from physical trauma], you should consider such fact[s] in determining whether defendant had the requisite knowledge and intent to commit the prohibited act. If from all the evidence you have a reasonable doubt whether the defendant had the requisite knowledge and intent, you must find that [he] [she] did not have such knowledge and intent and find [him] [her] not guilty.
[FORECITE F 1.20a should be given with this instruction]
Points and Authorities
The term “willful” or “willfully” “implies that the person knows what he is doing, intends to do what he is doing, and is a free agent. [Citation].” (In re Jerry R. (94) 29 CA4th 1432, 1438 [35 CR2d 155]; see also, In re Trombley(48) 31 C2d 801, 807 [193 P2d 734]; People v. Simon (95) 9 C4th 493, 507-23 [37 CR2d 278] [absent special circumstances justifying strict liability, due process requires that willful be construed to require knowledge].) Hence, even though willfulness may be shown without proof of specific intent (People v. White (92) 4 CA4th 1299, 1303 [6 CR2d 259]; People v. Froom (80) 108 CA3d 820, 826 [166 CR 786]), there is a requirement of knowledge and intent to commit the prohibited act. (See FORECITE F 1.20a.) Accordingly, the jury should be permitted to consider defense evidence such as mistake of fact, intoxication, mental disease/defect/disorder or physical trauma (see FORECITE F 4.010a) in determining whether the prosecution has met its burden of proving the requisite knowledge and intent elements of willfulness. (See FORECITE F 4.35 n2 regarding mistake of fact and intoxication or mental defect; see also People v. Reyes (97) 52 CA4th 975 [61 CR2d 39] [voluntary intoxication and mental disease or defect may negate knowledge element of receiving stolen property (PC 496)].)
The statutory prohibition against negating general criminal intent by intoxication or mental impairment (PC 22; PC 28) may not constitutionally bar such a defense. Failure to require proof beyond a reasonable doubt of an element of the charge would implicate the defendant’s federal constitutional rights to trial by jury and due process (6th and 14th Amendments) which require the prosecution to prove every element of the charge. (See People v. Figueroa(86) 41 C3d 714, 724 [224 CR 719]; see also, People v. Bobo (90) 229 CA3d 1417, 1442 [3 CR2d 747] [Legislature cannot deny defendant an opportunity to prove he or she did not possess a statutorily required mental state]; People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364] [right to request instruction pinpointing effect of intoxication on mental element of the charge].) This view is further supported by cases which hold that the knowledge element of implied malice may be negated by intoxication. (See People v. Whitfield (94) 7 C4th 437 [27 CR2d 858]; see also FORECITE F 4.21 n4; but see FORECITE F 4.21 n11.)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
Constructive Knowledge: [See FORECITE F 1.20a, NOTES]
Willful Blindness Or Deliberate Ignorance (Federal/Model Penal Code Rule): [See FORECITE F 1.20a, NOTES]
F 1.20c
Criminal Liability For Omission Of Statutory
Duties Requires Knowledge Of That Duty
*Add to CJ 1.20:
Because the defendant is accused of omitting to perform a duty imposed by the statute, it must be proven beyond a reasonable doubt that defendant knew of that statutory duty.
If you have a reasonable doubt that the defendant had such knowledge, you must give the defendant the benefit of that doubt and find him not guilty.
Points and Authorities
A fundamental principle of criminal law prohibits conviction for evil thoughts alone. There must be an act or an omission to act before a criminal penalty may be imposed. (See People v. Williams (92) 4 C4th 354, 365, 371 [14 CR2d 441].) In order for the omission to be a crime, however, there must exist a duty to act imposed by law. Notice is ingrained in the principles of due process and is required in situations in which punishment may be imposed for the mere failure to act. (People v. Garcia (2001) 25 C4th 744, 752-53 [107 CR2d 355]; Lambert v. California (57) 355 US 225, 228 [2 LEd2d 228; 78 SCt 240].)
For example, in Lambert, the court confronted a Los Angeles ordinance making it unlawful for a felon to remain in the city for more than five days without registering with the police. (Lambert, 355 US at 226.) The court held that for such a conviction to comport with due process, the state must provide proof of actual knowledge or “the probability of such knowledge.” (Lambert, 355 US at 229.) One acts willfully when one engages in a “voluntary, intentional violation of a known legal duty. [Citation.] (Ratzlaf v. U.S. (94) 510 US 135 [126 LEd2d 615; 114 SCt 655, 659]; see also People v. Hagen (98) 19 C4th 652, 666 [80 CR2d 24]; see also People v. Johnson (98) 67 CA4th 67 [78 CR2d 795] [PC 290 is general intent crime which requires purposeful or willful failure to register; such willful omission is shown by proof that the defendant “knew he was required to register….”]; but see Bryan v. U.S. (98) ____ US ____ [141 LEd2d 197, 207; 118 SCt 1939] [knowledge of legal duty required only when statute presents “the danger of ensnaring individuals in apparently innocent conduct”].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTE: Regarding the requirement of notice. See also People v. Smith (87) 188 CA3d 1495, 1517 [234 CR 142].