Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 96-527
of :
: November 22, 1996
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY M. SUMMERS :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE MICHAEL C. FITZPATRICK, CITY ATTORNEY, CITY OF
ANDERSON, has requested an opinion on the following question:
May a general law city adopt an ordinance imposing strict liability upon a parent for the
failure to supervise his or her child who violates a criminal provision of the municipal code?
CONCLUSION
A general law city may not adopt an ordinance imposing strict liability upon a parent
for the failure to supervise his or her child who violates a criminal provision of the municipal code.
ANALYSIS
The question presented for resolution concerns a proposed ordinance of a general law
city that would make it a criminal infraction for a parent to not properly supervise his or her child as
evidenced by the child violating a criminal provision of the municipal code. The proposed ordinance
would impose strict liability upon a parent for the failure to supervise a child who commits such
criminal acts as littering, disturbing the peace, possessing an alcoholic beverage in a city park, defacing
a public notice, or riding on the outside of an automobile. We conclude that the city may not enact
such an ordinance.
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The Supreme Court and Court of Appeal have recently examined the criminal aspects
of a parent's failure to supervise a child who commits various violations of state law. Penal Code
section 2721 provides:
"Every person who commits any act or omits the performance of any duty,
which act or omission causes or tends to cause or encourage any person under the age
of 18 years to come within the provisions of Section 300, 601, or 602 of the Welfare
and Institutions Code or which act or omission contributes thereto, or any person who,
by any act or omission, or by threats, commands, or persuasion, induces or endeavors to
induce any person under the age of 18 years or any ward or dependent child of the
juvenile court to fail or refuse to conform to a lawful order of the juvenile court, or to
do or to perform any act or to follow any course of conduct or to so live as would cause
or manifestly tend to cause any such person to become or to remain a person within the
provisions of Section 300, 601, or 602 of the Welfare and Institutions Code, is guilty of
a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding
two thousand five hundred dollars ($2,500), or by imprisonment in the county jail for
not more than one year, or by both such fine and imprisonment in a county jail, or may
be released on probation for a period not exceeding five years. For purposes of this
section, a parent or legal guardian to any person under the age of 18 years shall have
the duty to exercise reasonable care, supervision, protection, and control over their
minor child." (Italics added.)2
In Curry v. Superior Court (1993) 20 Cal. App. 4th 180, 188, the court explained:
". . . California has recently amended its penal statute governing contributing to
the delinquency of a minor to permit the imposition of criminal liability on a parent
who fails to make reasonable efforts to control a minor child. (Pen. Code ' 272; see
Williams v. Garcetti (1993) 5 Cal. 4th 561, upholding the constitutionality of the
statute.) In an era of increasing juvenile crime, society is clearly losing its patience
with parents who are indifferent to the irresponsible, malicious, or even vicious
propensities of their offspring." (Fn. Omitted.)
In Williams v. Garcetti (1993) 5 Cal. 4th 561, 571, the court noted that parents have
long had a duty to supervise and control their children under California civil law. Thus the court
reasoned that the 1988 addition of the requirements of "supervision" and "control" in section 272 did
not impose new duties upon parents, but incorporated into the criminal statute the definition and limits
of a parent's traditional civil law duty. (Id., at pp. 571-572, citing Singer v. Marx (1956) 144
Cal. App. 2d 637.) The court analyzed a parent's duties under the terms of section 272 as follows:
1
All references hereafter to the Penal Code are by section number only.
2
Sections 300, 601, and 602 of the Welfare and Institutions Code concern minors subject to the jurisdiction of the
juvenile court as dependents, minors habitually disobedient or truant, and minors violating criminal laws, respectively.
2. 96-527
"Section 272 holds parents liable only if they are criminally negligent in
breaching their duty of supervision and control. This requirement of criminal
negligence arises in part from Penal Code section 20, which provides, `In every crime
or public offense there must exist a union, or joint operation of fact and intent, or
criminal negligence.' It also arises in part from the Legislature's use of the term
`reasonable' in the amendment. The duty to act `reasonably' reflects the applicability
of the negligence doctrine -- here, criminal, not civil, negligence.
"In the criminal context, `ordinary negligence sufficient for recovery in a civil
action will not suffice; to constitute a criminal act the defendant's conduct must go
beyond that required for civil liability and must amount to a "gross" or "culpable"
departure from the required standard of care.' (People v. Peabody (1975) 46
Cal. App. 3d 43, 47.) It follows that the amendment to section 272 punishes only
negligence that exceeds ordinary civil negligence. We have defined criminal
negligence as `"aggravated, culpable, gross, or reckless, that is, . . . such a departure
from what would be the conduct of an ordinarily prudent or careful [person] under the
same circumstances as to [demonstrate] . . . an indifference to consequences."' (People
v. Penny (1955) 44 Cal. 2d 861, 879.)
"The heightened requirements of the criminal negligence standard in regard to
breach of duty alleviate any uncertainty as to what constitutes reasonable supervision or
control. Plaintiffs fear the statute punishes parents who could not reasonably know
that their child is at risk of delinquency. As we have seen, however, only a parent who
`knows or should know of the necessity and opportunity for exercising . . . control' can
be held liable in tort for breaching the duty to control a child. (Robertson v. Wentz,
supra, 187 Cal.App.3d at p. 1288.) Similarly, there can be no criminal negligence
without actual or constructive knowledge of the risk. (See People v. Rodriguez (1960)
186 Cal. App. 2d 433, 440.) In the setting of involuntary manslaughter, for example,
`[c]riminal liability cannot be predicated on every careless act merely because its
carelessness results in injury to another. [Citation.] The act must be one which has
knowable and apparent potentialities for resulting in death. Mere inattention or
mistake in judgment resulting even in death of another is not criminal unless the quality
of the act makes it so.' (Ibid.) Under the criminal negligence standard, knowledge of
the risk is determined by an objective test: `[I]f a reasonable person in defendant's
position would have been aware of the risk involved, then defendant is presumed to
have had such an awareness.' (People v. Watson (1981) 30 Cal. 3d 290, 296.) The
amendment thus punishes only parents who know or reasonably should know that their
child is at risk of delinquency.
"Plaintiffs also fear the statute punishes parents who try but fail to control their
children. In tort law, however, `[t]he duty of a parent is only to exercise such ability to
control his child as he in fact has at the time when he has the opportunity to exercise it
and knows the necessity of so doing. The parent is not under a duty so to discipline his
child as to make it amenable to parental control when its exercise becomes necessary to
the safety of others.' (Rest.2d Torts, ' 316, com. b.) In other words, a parent who
3. 96-527
makes reasonable efforts to control a child but is not actually able to do so does not
breach the duty of control. This is consistent with the rule that `"there is no [civil]
liability upon the parent unless he has had an opportunity to correct specific propensity
on the part of the child, and that it is too much to hold the parent responsible for general
incorrigibility and a bad disposition."' (Singer v. Marx, supra, 144 Cal.App.2d at p.
644.) A fortiori, parents who reasonably try but are unable to control their children are
not criminally negligent.
"The criminal negligence standard in regard to breach of duty thus provides
notice to law-abiding parents that is consistent with and reinforces the notice provided
by the amendment's incorporation of the definition and limits of the tort duty of
parental supervision and control. The amendment requires parents who know or
reasonably should know of the child's risk of delinquency to exercise their duty of
supervision and control. This duty consists of undertaking reasonable -- not
necessarily successful -- efforts at supervision and control. Omission of this duty
owing to simple negligence will not subject the parent to criminal liability; a parent can
be convicted only for gross or extreme departures from the objectively reasonable
standard of care.
"In sum, we understand the Legislature to have intended the amendment to
provide that there is a duty of reasonable restraint of, and discipline for, a child's
delinquent acts by parents who know or should know that their child is at risk of
delinquency and that they are able to control the child. Parents who intentionally or
with criminal negligence fail to perform this duty, and as a result contribute to the
delinquency of the child, violate section 272.
"Thus understood, the amendment is specific enough to allow parents to
identify and avoid breaches of the duty of supervision and control for which they could
be penalized under section 272. The amendment does not trap the innocent. It
provides adequate notice to parents with regard to potential criminal liability for failure
to supervise and control their children because (1) it incorporates the definition and the
limits of a parental duty to supervise and control children that has long been a part of
California tort law, and (2) it imposes criminal liability only when the parent engages in
conduct that so grossly departs from the standard of care as to amount to criminal
negligence." (Id., at pp. 573-575.)
Williams thus relied heavily upon the civil law standard of responsibility in establishing
the requirements of section 272. In this regard, we note that Civil Code section 1714.1 specifically
creates a civil liability for parents in the following circumstances:
"(a) Any act of willful misconduct of a minor which results in injury or death to
another person or in any injury to the property of another shall be imputed to the parent
or guardian having custody and control of the minor for all purposes of civil damages,
and the parent or guardian having custody and control shall be jointly and severally
liable with the minor for any damages resulting from the willful misconduct.
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"Subject to the provisions of subdivision (c), the joint and several liability of
the parent or guardian having custody and control of a minor under this subdivision
shall not exceed twenty-five thousand dollars ($25,000) for each tort of the minor, and
in the case of injury to a person, imputed liability shall be further limited to medical,
dental and hospital expenses incurred by the injured person, not to exceed twenty-five
thousand dollars ($25,000). The liability imposed by this section is in addition to any
liability now imposed by law.
"(b) Any act of willful misconduct of a minor which results in the defacement
of property of another with paint or a similar substance shall be imputed to the parent or
guardian having custody and control of the minor for all purposes of civil damages,
including court costs, and attorney's fees, to the prevailing party, and the parent or
guardian having custody and control shall be jointly and severally liable with the minor
for any damages resulting from the willful misconduct, not to exceed twenty-five
thousand dollars ($25,000), except as provided in subdivision (c), for each tort of the
minor.
"(c) The amounts listed in subdivisions (a) and (b) shall be adjusted every two
years by the Judicial Council to reflect any increases in the cost of living in California,
as indicated by the annual average of the California Consumer Price Index. The
Judicial Council shall round this adjusted amount up or down to the nearest hundred
dollars. On or before January 1, 1997, and on or before January 1 of each
odd-numbered year thereafter, the Judicial Council shall compute and publish the
amounts listed in subdivisions (a) and (b), as adjusted according to this subdivision.
"(d) The maximum liability imposed by this section is the maximum liability
authorized under this section at the time that the act of willful misconduct by a minor
was committed."
In Curry v. Superior Court, supra, 20 Cal.App.4th at 189, the court stated with respect to Civil Code
section 1714.1:
". . . Section 1714.1 clearly expresses the policy that parents should stand in the
shoes of their children for the purpose of paying damages caused by the children, for
which the children are `judgment proof.' Although the statute does not require proof of
fault, we think it is founded on the implicit understanding that a parent has the duty and
opportunity to control, supervise, and train his or her child in the ways of responsible
behavior. If the parent fails to do so, it is fair to impose liability on the parent -- and, in
our view, fair to require the parent to compensate not only the `innocent third party'
injured by the child, but also a joint tortfeasor who, due to the child's financial status,
would otherwise be required to pay the child's share of the damages caused."
The proposed ordinance would impose strict criminal liability upon a parent whose
child violates a municipal ordinance. Williams, however, teaches that even "`ordinary negligence
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. . . will not suffice . . . to constitute a criminal act . . . .'" A parent may not be subject to penal
consequences where reasonable efforts are made but prove to be unsuccessful.
We are aware that in certain limited circumstances, strict criminal liability may be
imposed. In Delfino v. Sloan (1993) 20 Cal. App. 4th 1429, 1436, the court recently observed:
"The California rule has long been that certain statutes or ordinances designed
to protect the public health and safety may impose a positive duty, and strict criminal
liability for failure to perform that duty, as a substitute for the mens rea of the common
law. `Under many statutes enacted for the protection of the public health and safety,
e.g., traffic and food and drug regulations [or animal control laws], criminal sanctions
are relied upon even if there is no wrongful intent. These offenses usually involve light
penalties and no moral obloquy or damage to reputation. Although criminal sanctions
are relied upon, the primary purpose of the statutes is regulation rather than punishment
or correction. The offenses are not crimes in the orthodox sense, and wrongful intent
is not required in the interest of enforcement. [Citations.]' (People v. Vogel (1956) 46
Cal. 2d 798, 801, fn. 2; accord, People v. Wells (1968) 261 Cal. App. 2d 468, 478
[`Although criminal statutes are not often construed to impose sanctions in the absence
of mens rea or guilty intent, an exception occurs where the statute is an expression of a
legislative policy to be served by strict liability.']; accord, People v. Martin (1989) 211
Cal. App. 3d 699, 713; People v. Telfer (1991) 233 Cal. App. 3d 1194, 1203.)"
The proposed city ordinance does not come within the categories where strict criminal
liability may be imposed "as a substitute for the mens rea of the common law." A violation of the
ordinance in question might well carry "moral obloquy or damage to reputation." We follow Williams
in requiring the imposition of criminal liability only where a parent (1) breaches a duty to supervise and
control his or her child that has long been part of California law and (2) engages in conduct which so
grossly departs from the standard of care as to amount to criminal negligence. (Williams v. Garcetti,
supra, 5 Cal.4th at 575.)3
We conclude that a general law city may not adopt an ordinance imposing strict
liability upon a parent for the failure to supervise a child who violates criminal provisions on the
municipal code.
*****
3
Because of the conclusion we reach, we need not address the additional question of whether the Legislature has
preempted the field of a parent's criminal conduct in failing to supervise his or her child's conduct.
6. 96-527