Gonda

I respectfully dissent.

The disagreement between the majority and myself respecting the registration offenses (Corp. Code, § 31110 et seq.) is simple. My colleagues, following what they believe to be binding precedents, hold that the defendants must be convicted if they wilfully performed the acts charged. They cite to this effect People v. O’Brien (1892) 96 Cal. 171 [ 31 P. 45 ]. In dissent, I conclude that while mere wilfulness can be sufficient in some crimes, namely, those mala in se—such as the grand theft charges against defendants here—it will not suffice for conviction where the crime is one malum prohibitum, which does not by its mere commission import the mens rea or evil design required by both statute and common law.

The issue is to my mind one of fundamental importance. It has become so clouded by conflicting appellate decisions and ambiguous dicta in certain early decisions of our Supreme Court, that I venture on the following rather lengthy comment.

As far as my research discloses, the issue was first raised in People v. Harris (1866) 29 Cal. 678 , where a man accused of voting twice in an election defended himself on the ground that, when he voted for the second…

The jurisprudential questions raised by our dissenting colleague are formidable and deserving of careful consideration, but so far as this case is concerned it appears to me that the Supreme Court’s recent decision in People v. Snyder (1982) 32 Cal.3d 590 [ 186 Cal.Rptr. 485 , 652 P.2d 42 ] is determinative. The court in Snyder, following People v. O’Brien (1892) 96 Cal. 171, 176 [ 31 P. 45 ], held that the defendant’s asserted mistake regarding her status as a convicted felon was no defense to a Penal Code section 12021 charge (possession of a concealable firearm by a convicted felon). The court in Snyder did not discuss the distinction advanced by our colleague between crimes malum prohibitum and mala in se; and, assuming for purposes of discussion that those categories are definable and import certain legal consequences in certain contexts, it would be difficult to say that the carrying of a firearm by a felon is any more unlawful “in itself” than the failure to register a franchise. I observe nothing in the dissenting opinion that would serve to distinguish Snyder .

Assigned by the Chairperson of the Judicial Council.

*777 Opinion

Gerald R. Sullivan and John Gonda were charged with nine counts of violating section 31110 of the Corporations Code (unlawful offering and selling of franchise without prior registration), nine counts of violating section 31201 of the same code (selling franchise by means of untrue statements) and nine counts of grand theft in violation of Penal Code section 487.

After a jury trial, appellants were convicted on all but counts 24 (Corp. Code, § 31201) and 26 (Pen. Code, § 487). The court granted a motion as to each appellant dismissing counts 9 (Corp. Code, § 31110), 16 (Corp. Code, § 31201), and 23 (Pen. Code, § 487) notwithstanding the jury’s verdicts. The present appeal is therefore taken from judgments entered on guilty verdicts on the remaining 22 counts.

A brief recital of the factual background underlying the convictions indicates that appellants, who had had wide experience in the consulting field, met and decided in the mid-1970’s to merge their respective businesses as the Logan Company (hereinafter Logan), a management consulting business with emphasis on small and medium-size firms. Advertisements were placed in the Wall Street Journal and other…