PG VII(G) Burdens And Presumptions: Allocating The Burden Of Proof As To Statutory Exception To Liability.
It is the prosecution’s burden to produce evidence as to all elements of the charge while the defendant has the burden of production as to affirmative defenses. (See FORECITE PG VII(C)(8); F 4.000a; F 12.24.1a.) However, whether a statutory “exception” to criminal liability is an affirmative defense or an element of the charge must be determined by the nature of the exception.
“When a statute first defines an offense in unconditional terms and then specifies an exception to its applicability, the exception is generally an affirmative defense to be raised and proved by defendant. [Citations.]” (People v. Lam (2004) 122 CA4th 1297, 1301; see also People v. Fisher (2002) 96 CA4th 1147, 1151.) “The question is whether the exception is so incorporated with and becomes a part of the enactment as to constitute a part of the definition or description of the offense; for it is immaterial whether the exception or proviso be contained in the enacting cause or section, or be introduced in a different matter.” (People v. Gott (94) 26 CA4th 881, 886 [31 CR2d 840] [internal citations and quotation marks omitted].) Moreover, “unless there has been an “express legislative choice . . . to place an affirmative burden of proof upon the defendant,” it may be unconstitutional to shift the burden to the defendant. (Gott 26 CA4th at 887-88; see also FORECITE PG VII(C).)