I dissent.
In 1989 the Court of Appeal in People v. Johnson (1989) 213 Cal.App.3d 1369, 1375 [262 Cal.Rptr. 366] (Johnson), held, “It is settled that the omission of ‘knowingly’ from a penal statute indicates that guilty knowledge is not an element of the offense. [Citation.] Had the Legislature intended to require proof of guilty knowledge or scienter under [Corporations Code] section 25540, it could have so stated by using the word ‘knowingly.’ Willfulness does not require proof of evil motive or intent to violate the law or knowledge of illegality. [Citations.]”
A petition for review of Johnson was filed with this court, and promptly rejected with no votes of any justice to grant. Have there been any developments in the ensuing years to justify at this late date overruling the prevailing law? The answer must be negative.
Indeed, with full knowledge of the Johnson rule, the Legislature in 1993 reconsidered Corporations Code section 25540 and increased the maximum fine for its violation, but took no action to include an element of criminal intent. As this court reiterated in Harris v. Capital Growth Investors XTV (1991) 52 Cal.3d 1142, 1156 [278 Cal.Rptr. 614, 805 P.2d 873], “ ‘[W]hen the Legislature amends a statute without altering portions of the provision that have previously been judicially construed, the Legislature is presumed to have been aware of and to have acquiesced in the previous judicial construction.’ ”
The majority seem to fail to appreciate that there are malum prohibitum crimes punishable despite the absence of criminal intent. Such crimes are generally based on the violation of statutes that are regulatory in nature and that affect innocent victims. It is clear that the purpose of the securities law is to protect the public against fraudulent—even unknowingly fraudulent— stock and investment schemes.
The legislative enactment may not be as strict in its requirements on stock promoters’ liability as the majority might prefer. They find it more palatable to require a specific criminal intent. But the bottom line is that the Legislature has not seen fit to impose that requirement, either originally or in its subsequent reconsideration of the statute.
Rewriting statutes is not the function of this court. We must review those the Legislature has given us. As the Johnson case held (213 Cal.App.3d at p. 1375), “It is settled that the omission of ‘knowingly’ from a penal statute indicates that guilty knowledge is not an element of the offense." We have no right to add that element.
*525I further conclude that if there were any errors in the trial court’s instructions, they are—in the frequent words of my colleagues—mere harmless errors.
I would affirm the judgment.
Respondent’s petition for a rehearing was denied March 16, 1995. Mosk, J., was of the opinion that the petition should be granted.