I concur in the majority’s opinion, but hesitantly, and with reluctance.
I have had occasion previously to express misgivings about the propriety of predicating criminal charges carrying severe sanctions—felony conviction and state prison—on conduct which, not in itself wrong in any sense, is deemed criminal irrespective of the intent or knowledge with which it is done. (Cf. my dis. opn. in Gonda v. Sullivan (1982) 138 Cal.App.3d 774, 781 [188 Cal.Rptr. 295].)
I agree that the interests at issue here are probably securities—in part because, after careful assessment, we have said so. But what deeply concerns me is that, if we ourselves have such difficulty recognizing the character of these interests as securities, is it fair to bring criminal charges against those who failed or were unable to do so?
Convicting such persons of crimes on a “strict liability” basis seems to me not merely dubious, but wrong. Regrettably, our Supreme Court has not chosen to address this issue.
The petition of respondents Van Blaricom and Malone for a hearing by the Supreme Court was denied April 26, 1984. Mosk, J., was of the opinion that the petition should be granted.