People v. Kuhn

• Decision Date: 28 May 1963
• Citation: 216 Cal.App.2d 695,31 Cal.Rptr. 253
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gilbert J. KUHN, Defendant and Appellant. Crim. 1869.

Page 253

31 Cal.Rptr. 253

216 Cal.App.2d 695

The PEOPLE, Plaintiff and Respondent, v. Gilbert J. KUHN, Defendant and Appellant.

Crim. 1869.

District Court of Appeal, Fourth District, California.

May 28, 1963.

Thomas Whelan and Monroe W. Kirkman, San Diego, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., James Don Keller, Dist. Atty., County of San Diego, and Norbert Ehrenfreund, Deputy Dist. Atty., for plaintiff and respondent.

COUGHLIN, Justice.

The defendant, appellant herein, by an indictment in three counts, respectively, was charged with a wilful failure to file a state income tax return for each of the years 1960, 1959, and 1958, with intent to evade the tax imposed, i. e., violations of § 19406 of the Revenue and Taxation Code; was found guilty on Count 1 as charged, and of a lesser included offense on Counts 2 and 3, i. e., a violation of § 19401 of the Revenue and Taxation Code; moved for a new trial, which was denied; was sentenced to pay a fine of $5000 on Count 1; was granted probation as to Counts 2 and 3, the imposition of sentence being suspended; and appeals from the judgment.

The defendant contends that § 19406 of the Revenue and Taxation Code, the violation of which is a felony, and § 19401 of that code, the violation of which is a misdemeanor, define the same offense; thus confer on prosecuting officials the right to choose whether an accused will be charged with a felony or a misdemeanor for the same offense; for this reason constitute an infringement of the constitutional guarantee of equal protection of the law, an unconstitutional constitutional delegation of legislative authority, and a denial of due process of law; and, therefore, are void. This contention presents the sole issue on appeal. Basic thereto is the claim that the subject sections define the same offense.

Section 19406 provides that:

'Any person who * * * wilfully fails to file any return * * * with intent to evade any tax imposed * * * is punishable by imprisonment in the county jail not to exceed one year, or in the state prison not to exceed five years, or by fine of not more than five thousand dollars ($5000), or by both such fine and imprisonment, at the discretion of the court.'

Section 19401 provides that:

'Any person who, with or without intent to evade any requirement of this part [viz, the personal income tax law] * * * fails to file any return * * * required * * * is liable to a penalty * * * [and] * * * is also guilty of a misdemeanor and shall upon conviction be fined not to exceed one thousand dollars ($1000) or be imprisoned not to exceed one year, or both, at the discretion of the court.'

In support of his premise that the subject code sections define identical offenses, the defendant argues that the statutorily prescribed elements for each thereof are identical, i. e., (1) the failure to file a return, and (2) an intent to evade the payment of taxes. The prosecution contends that the intent to evade the payment of taxes is an element of the felony offense but not of the misdemeanor. The intent factor clearly is included in the felony statute, i. e., § 19406, by the language therein which refers to a person who 'wilfully fails to file' a return 'with intent to evade any tax imposed.' The defendant claims that this factor also is included in the misdemeanor statute, i. e., § 19401, by the language therein which refers to a person who fails to file a return 'with or without intent to evade any requirement' of the law; stresses that part thereof which, out of context, refers to a person who fails to file a return 'with * * * intent to evade'; and concludes that the language thus used demonstrates the inclusion of the intent factor in both code sections.

If the intent factor is an element of the offense described by § 19401, proof thereof would be essential to a conviction. However, applying the interpretive process indulged in by the defendant, which disregards a part of the language used, it appears that the section in question refers to a person who fails to file a return '* * * without any intent to evade.' This interpretation renders unnecessary any proof of intent as a prerequisite to conviction. The use of such an interpretive process develops a conflict within the statute; confuses rather than clarifies; and must be rejected under the fundamental rule that an interpretation which leads to an absurdity should be rejected. (Stockton School Dist. of San Joaquin County v. Wright, 134 Cal. 64, 68, 66 P. 34; Meyer v. Board of Trustees, 195 Cal.App.2d 420, 430, 15 Cal.Rptr. 717.) Where the provisions of a statute are subject to two or more reasonable interpretations, that which will harmonize rather than conflict with other provisions thereof should be adopted. (Spreckels v. Graham, 194 Cal. 516, 527, 228 P. 1040.) Obviously, in determining the intention of the Legislature in the premises, the phrase 'with or without intent to evade' should be considered as a whole; an an integral part of the whole code section (In re Marquez, 3 Cal.2d 625, 628, 45 P.2d 342); and in relation to other statutes on the same subject so as to harmonize the whole law. (Stafford v. Los Angeles etc. Retirement Board, 42 Cal.2d 795, 799, 270 P.2d 12; Stafford v. Realty Bond Service Corp., 39 Cal.2d 797, 805, 249 P.2d 241.) When so considered, the subject phrase means 'regardless of intent to evade'; indicates that intent is an immaterial factor in the offense described (Turner v. State, 157 Tex.Cr.R. 77, 246 S.W.2d 642, 643; Maynard v. State, 154 Tex.Cr.R. 594, 228 S.W.2d 185, 187; cf. People ex rel. Lichtenstein v Langan, 196 N.Y. 260, 89 N.E. 921-922, 25 L.R.A.,N.S. 479 and People ex rel. Shane v. Gittens, 78 Misc. 7, 137 N.Y.S. 670, 672, 674); and classifies the statute in question as one criminally enforcing an obligation imposed by law without regard to criminal knowledge or intent. (Generally see In re Marley, 29 Cal.2d 525, 528-529, 175 P.2d 832; People v. Gory, 28 Cal.2d 450, 453, 170 P.2d 433; People v. McClennegen, 195 Cal. 445, 468-470, 234 P. 91.)

It is significant that the offense defined by § 19406, i. e., the felony statute, concerns a person who 'wilfully fails' to file a return, while that defined by § 19401, i. e., the misdemeanor statute, omits the term 'wilfully' and applies to a person who merely 'fails' to file a return. It has been held that where a statute which declares the commission or omission of an act to be an offense omits 'qualifying words such as knowingly, intentionally, or fraudulently', guilty knowledge and intent are not elements of the offense so defined. (In re Marley, supra, 29 Cal.2d 525, 529, 175 P.2d 832, 835; Brodsky v. California State Bd. of Pharmacy, 173 Cal.App.2d 680, 688, 344 p.2d 68.) By analogy the same conclusion follows from omission of the qualifying word 'wilfully' which, as used in a criminal statute, 'implies a purpose or willingness to commit the act' and also implies that the person involved 'knows what he is doing, intends to do what he is doing, and is a free agent.' (In re Trombley, 31 Cal.2d 801, 807, 193 P.2d 734, 739.)

"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'.' (People ex rel. Paganini v. Town of Corte Madera, 97 Cal.App.2d 726, 729, 218 P.2d 810, 813; City of Port Hueneme v. City of Oxnard, 52 Cal.2d 385, 395, 341 P.2d 318; People v. Valentine, 28 Cal.2d 121, 142, 169 P.2d 1.)

When the Legislatire included the qualifying word 'wilfully' in the felony statute, which clearly applies only to a person who intended to evade payment of the tax imposed, but omitted this qualifying word from the misdemeanor statute, it thereby indicated that the latter statute should apply to a person who fails to file an income tax return regardless of his intention in the premises. This circumstance justifies our conclusion that the phrase 'with or without intent to evade' as used in § 19401, is a positive declaration that an intent to evade is not an element of the offense therein defined. Although the defendant's position finds support in a literal application of the aforesaid phrase, the purpose of the statute will not be sacrificed to a 'literal construction' of the language used therein. (Select Base Materials, Inc. v. Board of Equalization, 51 Cal.2d 640, 645, 335 P.2d 672.)

As a consequence, the contention that the subject statutes define the same offense must be rejected. The fact that particular conduct may constitute an offense against two statutes does not dictate the conclusion that these statutes define identical offenses. (Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306; United States v. Noveck, 273 U.S. 202, 47 S.Ct. 341, 71 L.Ed. 610; Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 422, 55 L.Ed. 489; Levin v. United States, 9 Cir., 5 F.2d 598, 599.)

'If one offense requires proof of an element different from the other, they may not be deemed to constitute the same offense * * *.' (People v. Benenato, 77 Cal.App.2d 350, 367, 175 P.2d 296, 306.)

Stated otherwise, it is the 'presence of a fact necessary to one offense and absent in another, that determines whether offenses are separate.' (People v. Day, 199 Cal. 78, 83, 248 P. 250, 252.) The decision in United States v. Beacon Brass Co., 344 U.S. 43, 45, 73 S.Ct. 77, 78, 97 L.Ed. 61, is particularly pertinent because the court there considered the similarity between the offense of attempting to evade taxes by filing a false statement with the Treasury Department and that of merely filing such a statement, and...