Filed 2/23/16 In re Rachel B. CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re RACHEL B., a Person Coming Under
the Juvenile Court Law.
                                                                 D068060
THE PEOPLE,

         Plaintiff and Respondent,                               (Super. Ct. No. JCM236275)

         v.

RACHEL B.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Browder

A. Willis, Judge. Affirmed.

         Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Seth M.

Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
       A San Diego County social host ordinance imposes criminal penalties for "a

person to fail to take reasonable steps to prevent a minor from consuming an alcoholic

beverage at a party the person hosts or allows on private property the person owns or

controls." (San Diego County Code, § 32.303, subd. (a).)1 A juvenile court found 17-

year-old Rachel B. violated this ordinance when she hosted a party at which numerous

minors consumed alcoholic beverages. The court placed Rachel on six months' probation

without wardship and ordered her to pay victim restitution. (Welf. & Inst. Code, § 725,

subd. (a).)

       On appeal, Rachel does not challenge the sufficiency of the evidence to support

that she hosted a party at which she failed to take reasonable steps to prevent minors from

consuming alcohol. Instead, her sole contention is that the court misunderstood the

applicable law and applied an incorrect "strict liability" standard. We reject this

contention. The record reflects the court applied the correct standard. We thus affirm the

judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       The People filed a petition under Welfare and Institutions Code section 602,

alleging Rachel violated section 32.303 by failing to take reasonable steps to prevent

minors from consuming alcohol at a party she hosted. At the adjudication hearing, the

prosecution presented the following evidence supporting the petition.




1      All unspecified section references are to the San Diego County Code.
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       In June 2014, Rachel contacted Amy Hauer to inquire about Hauer's Internet

advertisement offering to rent her home in Ramona. The house is located in a secluded

area set back from the public road. Rachel said she was 25 years old and was interested

in renting the house for a retreat for her and a few of her female cousins. During their

conversation, Rachel asked Hauer about the privacy of the house and rental insurance.

Hauer agreed to rent the home to Rachel. Rachel created an account with a "fake" name

to pay Hauer the rental fee.

       Unbeknownst to Hauer, the true reason Rachel rented the house was to host a 16th

birthday party for her friend Rya. Rachel expected to host approximately 30 friends, both

male and female. She hired two young men, possibly around the age of 21, to work as

"bouncers."

       The party started at approximately 6:00 p.m. At that time, alcohol was freely

available for Rachel's underage guests. Rachel required each person to pay the bouncers

a $20 entry fee to help reimburse her for the party's cost. Inside, a DJ played loud music.

During the first hour, there were about 10 to 50 minors at the party and alcohol was

available.

       At approximately 8:30 p.m., the sheriff's department received a noise complaint

about the party. When two officers arrived and entered the house, they saw an estimated

200 people, most of whom were minors. The officers observed red plastic cups, empty

cases of alcohol, beer cans, beer bottles, and two kegs scattered about the property. A

majority of the minors had been drinking alcoholic beverages.


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       When the two officers started evacuating the juveniles, many of them ran up the

hill into the neighborhood, causing the officers to call for backup assistance. It took nine

law enforcement officers and a helicopter approximately six hours to shut down the party.

       When Hauer and her boyfriend returned to their home, they found property

damage valued at about $4,000 or $5,000. Hauer immediately contacted Rachel to ask

what had happened. Rachel first stated she was unaware of any damage, but then

claimed that boys had shown up and caused trouble.

       Rachel later admitted to law enforcement that she knew there was alcohol at the

party. She told the officers that she hired the bouncers to control who attended the party

and handle any problems that may arise. She denied knowing who supplied the alcohol,

but stated she suspected the bouncers may have brought the kegs. She said these men

had previously attended a local high school, but she had no contact information and did

not know their last names.

       Rachel did not testify at the hearing. The defense theory was that Rachel did not

"anticipate[ ]" that 200 people would come to the party and bring alcohol, and she took all

"reasonable steps" to ensure a small intimate party, including hiring bouncers. In

support, two of Rachel's friends testified that about one hour after the party started, more

than 100 people showed up after someone posted the party's address on social media. All

of these people were friends of Rya, not Rachel, and many of them brought alcohol.

Rachel's friends said that Rachel took alcohol away from some of these uninvited guests

and asked them to leave, but they refused to do so. According to her friends, Rachel did


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not want alcohol at the party. They testified that when Rachel became frustrated that the

party had become chaotic, Rachel retreated to an upstairs balcony. Rachel then went to a

nearby gas station while law enforcement cleared people out of the house and area.

       In his closing argument, defense counsel argued that Rachel intended to host a

party only for a few close friends, and she took reasonable steps to prevent alcohol

consumption by "hir[ing] bouncers . . . to keep people out"; taking "alcohol away from

individuals [who] looked too young"; and attempting "to kick people out of the party."

Counsel asserted that the fact Rachel lost control of the party was insufficient to establish

a violation of section 32.303 because the ordinance imposed a criminal negligence

standard, and not strict liability.

       In his reply argument, the prosecutor agreed "[t]his is not a strict liability statute."

But he argued Rachel violated the ordinance because she was "clearly in control of this

private property" and she "clearly failed to . . . take reasonable steps" to prevent the

underage partygoers from drinking alcohol at the party. The prosecutor noted that Rachel

did not call for help when the party got out of control and her unsuccessful attempt to

take "beer bottles or drinks from a few minors" was not a reasonable way of addressing

the situation.

       After considering the evidence and arguments, the juvenile court concluded the

prosecution proved its case "beyond a reasonable doubt" and made a true finding that

Rachel had violated section 32.303. In explaining its reasoning, the court stated in part:

           "The facts are really clear. . . . You, at the behest of a friend, agreed
           to plan and host a party. You took the effort to rent property, having
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contact with a property owner and . . . paid for the rental of that
property and the party took place . . . . And when the law
enforcement . . . got there they found . . . a lot of minors . . . alcohol,
visibly present at the party, alcohol being consumed at the party. . . .

"The statute states in part that a person who owns or has control of
private property and knowingly hosts or allows a party on the
property shall take all reasonable steps to prevent the consumption
of any alcoholic beverages at the party. You had control because
you were the person that rented the property and planned the party.

". . . And the law requires you at that point and time to take all
reasonable steps to prevent the consumption of alcoholic beverages.

"Reasonable steps, according to the statutes include but are not[ ]
limited to controlling access to alcoholic beverages, controlling
quantity of alcohol, verifying age of participants at the party. And
supervising activity of the minors. I think for some reason it caught
my attention . . . you hired two bouncers . . . . Two older guys that
you knew from [a high school] to act as bouncers to help control
people and activity at the party. That to me is a very important fact
because that shows an understanding and appreciation of what could
have happened and what, in fact, did happen. You wanted to have
some people there that you thought you could trust or could act to
keep it from getting out of control. They become your agents at that
point. If they fail to act by controlling access or they bring alcohol
or they don't limit the alcohol or kick people out or control the
activity, that lack thereof, that failure is attributed to you because
you hired them for that specific purpose. . . . The facts are that you
sat despondent on a balcony once you realized this was crazy and
out of control. You probably acted in good faith in wanting a party,
you had two bouncers there just in case somebody got out of control;
it went certainly beyond that. Your effort to control the party falls
short of what is required by law. Especially when you are aware of
that and that is evidenced by hiring [the two young men] to act as
bouncers. Your steps were not reasonable in light of the
circumstance as presented to this court. . . . "




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                                       DISCUSSION

                                     I. Applicable Law

       Section 32.303, subdivision (a) states: "A person who owns or has control of

private property and knowingly hosts or allows a party on the property shall take all

reasonable steps to prevent the consumption of alcoholic beverages by any minor at the

party. Reasonable steps include, but are not limited to: (1) controlling access to

alcoholic beverages, (2) controlling the quantity of alcoholic beverages, (3) verifying the

age of each person attending the party by inspecting each person's driver's license or

other government-issued identification card and (4) supervising the activities of minors at

the party. It is unlawful for a person to fail to take reasonable steps to prevent a minor

from consuming an alcoholic beverage at a party the person hosts or allows on private

property the person owns or controls."

       The San Diego County Board of Supervisors (Board) enacted this ordinance to

prevent public health and safety problems resulting from underage alcohol use, including

"physical altercations, violent crimes including rape and other sexual offenses, accidental

injury, neighborhood vandalism and excessive noise disturbance, all of which may

require intervention by local law enforcement." (§ 32.301, subd. (b).) The Board found

the ordinance would "deter consumption of alcoholic beverages by minors by holding

persons responsible who encourage, are aware of or should be aware of the illegal

consumption of alcoholic beverages by minors, but fail to prevent it." (§ 32.301, subd.

(d).) A person who violates this section is "subject to criminal prosecution." (§ 32.307.)


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                                        II. Analysis

                           A. Court Applied Correct Standard

       Rachel contends the court erred by imposing a strict liability standard in

evaluating her criminal responsibility under section 32.303, instead of the criminal

negligence rule applicable to a statute that requires a person to take reasonable

affirmative actions.

       "The duty to act 'reasonably' reflects the applicability of the [criminal] negligence

doctrine[.]" (Williams v. Garcetti (1993) 5 Cal.4th 561, 573.) Criminal negligence is

conduct that amounts to a gross or culpable departure from what would be the conduct of

an ordinarily careful person in the same situation as to show an indifference to

consequences. (Id. at p. 574.) A person cannot be criminally negligent without having

actual or constructive knowledge of the risk, which is determined by the following

objective test: if a reasonable person similarly situated would have been aware of the risk

involved, then the defendant is presumed to have had such an awareness. (Ibid.)

       Rachel argues that under these criminal negligence principles, the prosecutor was

required to prove she "declined to take viable reasonable steps that an objective person

otherwise would have taken under the circumstances." We agree with this assertion. But

contrary to Rachel's contentions, the record shows the court applied this standard in

evaluating the evidence.

       In explaining its conclusion that the prosecution met its burden beyond a

reasonable doubt, the court told Rachel that once she decided to rent the property and


                                             8
host the party, "the law requires you . . . to take all reasonable steps to prevent the

consumption of alcoholic beverages," and identified the four examples of "reasonable

steps" listed in the ordinance. (Italics added.) The court then stated it found Rachel's

actions "were not reasonable in light of the circumstances as presented to this court."

(Italics added.) Discussing the facts surrounding the party, the court stated Rachel's

"efforts to control the party" fell "short" of what was required by the law (what a

reasonable person aware of the risk would have done in similar circumstances).

       Based on the court's repeated references to the reasonableness of Rachel's actions

and its observations regarding Rachel's specific actions (or nonactions), we reject

Rachel's claims the court found she violated the statute merely because underage drinking

occurred at the party.

       In arguing that the court misunderstood the legal standard, Rachel focuses on the

court's discussion of the bouncers. Rachel contends that by characterizing the bouncers

as her "agents," the court held her strictly liable for their failure to control the party. The

argument is unsupported when viewing the court's statements in context. The court

discussed Rachel's retention of the bouncers in explaining its conclusion that Rachel was

aware of the possibility there would be underage drinking at the party and that the party

could get out of control. The court's remarks were directed to Rachel's knowledge of the

likely consequences of hosting a party in a secluded area without parents present and her

failure to take any reasonable steps once the party got out of control. Despite the court's




                                               9
use of the word "agents," we are satisfied the court held Rachel liable for her own

unreasonable actions, and not the bouncers' conduct.

       Moreover, to the extent Rachel argues the court was required to find the presence

of the bouncers established she acted reasonably to prevent or control the underage

drinking, we reject this contention. Rachel told the police officers that the bouncers may

have brought the kegs to the party and that she had no contact information for the two

young men and did not know their last names. The evidence also showed there was

alcohol at the outset of the party. These facts support a reasonable inference that Rachel

did not ask the bouncers to prevent alcohol from being served at the party, and that

instead she hired the two men to facilitate the underage drinking by preventing the party

from getting out of control and/or to ensure that partygoers were paying their $20

admission fee. The fact that the bouncers made no efforts to preclude the availability of

alcohol at the beginning of the party and may have contributed to the drinking is evidence

that Rachel did not retain them to prevent underage alcohol consumption. Viewing the

totality of the circumstances, the court had a reasonable basis to find Rachel's use of the

bouncers was not a "reasonable step[ ]" under section 32.303, subdivision (a).

       In arguing the court misapplied the correct legal standard, Rachel also relies on the

court's remark that she "acted in good faith." Read in full, the court stated: "You

probably acted in good faith wanting a party, you had two bouncers there just in case

somebody got out of control; it went certainly beyond that." (Italics added.) The court's

observation that Rachel may have had proper motives in "wanting a party" does not


                                             10
negate the court's finding that she acted with criminal negligence when she implemented

this plan by renting a house under false pretenses knowing that alcohol would be served

to her underage friends, and then failing to take any reasonable actions (such as calling an

adult or calling the police) when uninvited guests came to the party.

                   B. Substantial Evidence Supports Court's Findings

       Although Rachel does not directly challenge the sufficiency of the evidence to

support the court's conclusion that she violated section 32.303, we briefly discuss our

conclusion that substantial evidence supported the court's finding.

       First, it was undisputed that Rachel rented the house in a private location under the

false pretense that she was an adult and would be using it for a small retreat. The

evidence showed Rachel was aware minors would be in attendance because she admitted

to law enforcement that she rented the house to host a 16th birthday party and invited 30

peers. The fact that Rachel asked Hauer about the privacy of the home supports an

inference that Rachel wanted to avoid detection from law enforcement.

       The evidence also shows Rachel knew alcohol would be available at the party.

When minors entered the party soon after it started, alcohol was freely available. As

reflected in the testimony of one of the young partygoers, there were no limits placed on

the alcohol consumption. Further, the officers observed red plastic cups, beer bottles,

beer cans, and two kegs scattered about the property, showing the alcohol consumption

was open and obvious.




                                            11
       The only evidence indicating that Rachel tried to prevent minors from consuming

alcohol is her friends' testimony that she attempted to take alcohol away from a few

people. However, the court had a reasonable basis to find these witnesses not credible.

Moreover, even if the testimony was believable, there was evidence supporting that this

step was not reasonable. Once she realized the party had grown out of control, Rachel

retreated to an upstairs balcony to be by herself. Nothing in the record indicates that

Rachel took effective steps to stop the party, such as asking the bouncers for assistance in

preventing the underage drinking, or calling the police or another adult to come and

control the situation.

       Rachel's failure to take reasonable steps in the light of her knowledge that she was

hosting a party where alcohol would be freely available to her underage friends supports

the conclusion that she violated section 32.303 and acted with criminal negligence.

                                      DISPOSITION

       Judgment is affirmed.



                                                                     HALLER, Acting P.J.

WE CONCUR:



MCDONALD, J.



AARON, J.


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