The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
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:
OPINION :
:
of : No. 87-102
:
JOHN K. VAN DE KAMP : JUNE 2, 1987
:
RODNEY O. LILYQUIST :
Deputy Attorney General :
:
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THE HONORABLE GEORGE DEUKMEJIAN, GOVERNOR OF CALIFORNIA,
has requested an opinion on the following questions:
1. Is the disclosure duty of a designated government employee specified in Health
and Safety Code section 25180.7 applicable with respect to information obtained prior to January
1, 1987?
2. What information and knowledge must a designated government employee have
in order to be subject to the disclosure duty specified in Health and Safety Code section 25180.7?
3. What must be proved to sustain a criminal conviction for the failure to disclose
information required by Health and Safety Code section 25180.7?
CONCLUSIONS
1. The disclosure duty of a government employee specified in Health and Safety
Code section 25180.7 is inapplicable with respect to information obtained prior to January 1, 1987.
2. The information and knowledge a designated government employee must have
in order to be subject to the disclosure duty specified in Health and Safety Code section 25180.7 are
information that an illegal discharge of a hazardous waste has occurred or is threatened in the
geographical area of his jurisdiction and the knowledge that it is likely to cause substantial injury
to the public health or safety.
3. Proof beyond a reasonable doubt that the designated government employee
knowingly and intentionally failed to disclose the information required by Health and Safety Code
section 25180.7 must be established in order to sustain a criminal conviction.
ANALYSIS
On November 4, 1986, the voters of California approved the Safe Drinking Water
and Toxic Enforcement Act of 1986 ("Act"). This initiative measure, Proposition 65, amended and
added sections to the Health and Safety Code1 concerning the discharge of hazardous waste. Among
the added statutory provisions was section 25180.7:
"(a) Within the meaning of this section, a 'designated government employee'
is any person defined as a 'designated employee' by Government Code Section
82019, as amended.
"(b) Any designated government employee who obtains information in the
course of his official duties revealing the illegal discharge or threatened illegal
discharge of a hazardous waste within the geographical area of his jurisdiction and
who knows that such discharge or threatened discharge is likely to cause substantial
injury to the public health or safety must, within seventy-two hours, disclose such
information to the local Board of Supervisors and to the local health officer. No
disclosure of information is required under this subdivision when otherwise
prohibited by law, or when law enforcement personnel have determined that such
disclosure would adversely affect an ongoing criminal investigation, or when the
information is already general public knowledge within the locality affected by the
discharge or threatened discharge.
"(c) Any designated government employee who knowingly and intentionally
fails to disclose information required to be disclosed under subdivision (b) shall,
upon conviction, be punished by imprisonment in the county jail for not more than
one year or by imprisonment in state prison for not more than three years. The court
may also impose upon the person a fine of not less than five thousand dollars
($5,000) or more than twenty-five thousand dollars ($25,000). The felony conviction
for violation of this section shall require forfeiture of government employment within
thirty days of conviction.
"(d) Any local health officer who receives information pursuant to
subdivision (b) shall take appropriate action to notify local news media and shall
make such information available to the public without delay."
We are asked whether this statute is applicable with respect to information obtained
1
All statutory references hereafter to the Health and Safety Code are by section number only.
2. 87-102
prior to January 1, 1987, what information and knowledge is necessary to establish the disclosure
duty, and what must be proved to sustain a criminal conviction.
1. Information Obtained Prior to January 1, 1987
Statutes added by an initiative measure are normally effective the day after the
election. (Cal. Const., art. 2, § 10.) The measure may, however, provide for a different effective
date. Here, Proposition 65 provided: "This initiative shall take effect on January 1, 1987." (Cal.
Ballot Pamp., Gen. Elect. (Nov. 4, 1986) p. 63.)
It is clear that the disclosure duty of section 25180.7 did not arise until the initiative's
effective date, January 1, 1987. (See Northgate Partnership v. City of Sacramento (1984) 155
Cal.App.3d 65, 68-69; National Independent Business Alliance v. City of Beverly Hills (1982) 128
Cal.App.3d 13, 21; Pugh v. City of Sacramento (1981) 119 Cal.App.3d 485, 491; Kehrlein v. City
of Oakland (1981) 116 Cal.App.3d 332, 340.) As such, section 25180.7 is neither "retroactive" with
respect to the disclosure duty nor an ex post facto law making punishable what was not criminal at
the time of performance. (See People v. Weidert (1985) 39 Cal.3d 836, 849; In re Jackson (1985)
39 Cal.3d 464, 469; In re La Day (1985) 177 Cal.App.3d 461, 463.)
The issue remains, however, whether the duty to disclose that began January 1, 1987,
arose with respect to information obtained prior to the effective date of section 25180.7. In
answering this question, we may rely upon several well-established principles of statutory
construction. A statute is to be interpreted by giving the words "their ordinary and generally
accepted meaning." (People v. Castro (1985) 38 Cal.3d 301, 310; accord People v. Craft (1986) 41
Cal.3d 554, 560.) Rules of grammatical construction are to be followed. (See County of Los
Angeles v. Graves (1930) 210 Cal. 21, 26; Addison v. Department of Motor Vehicles (1977) 69 Cal.
App. 3d 486, 496 People v. One Chrysler Coupe (1941) 48 Cal.App.2d 546, 549.) If possible, a
sensible and practical approach is to be taken. (Valley Circle Estate v. VTN Consolidated, Inc.
(1983) 33 Cal.3d 604, 608-609; California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d
836, 844; Fields v. Eu (1976) 18 Cal.3d 322, 328.) Statutes are to be interpreted so that they are
internally consistent with the various parts harmonized and reconciled. (Moore v. Panish (1982) 32
Cal. 3d 535, 541; People v. Black (1982) 32 Cal.3d 1, 5; Moyer v. Workmen's Comp. Appeals Bd.
(1973) 10 Cal.3d 222, 230.)
Returning to the language of subdivision (b) of section 25180.7, we find the
following six elements of the duty to disclose: (1) Any designated government employee, 2 (2) who
2
A "designated government employee" is a "designated employee" as defined in Government
Code section 82019. ( § 25180.7, subd. (a).) The Government Code provision states:
"'Designated employee' means any officer, employer, member, or consultant of
any [state or local government] agency whose position with the agency:
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obtains information in the course of his official duties,(3) revealing the illegal discharge or
threatened illegal discharge of a hazardous waste, 3 (4) within the geographical area of his
"(a) Is exempt from the state civil service system by virtue of subdivision (a),
(c), (d), (e), (f), (g), or (m) of Section 4 of Article VII of the Constitution, unless
the position is elective or solely secretarial, clerical, or manual.
"(b) Is elective, other than an elective state office.
"(c) Is designated in a Conflict of Interest Code because the position entails the
making or participation in the making of decisions which may foreseeably have a
material effect on any financial interest.
"(d) Is involved as a state employee at other than a clerical or ministerial level
in the functions of negotiating or signing any contract awarded through
competitive bidding, in making decisions in conjunction with the competitive
bidding process, or in negotiating, signing, or making decisions on contracts
executed pursuant to Section 10122 of the Public Contract Code.
"'Designated employee' does not include an elected state officer, any
unsalaried member of any board or commission which serves a solely advisory
function, any public official specified in Section 87200, and also does not include
any unsalaried member of a nonregulatory committee, section, commission, or
other such entity of the State Bar of California."
Government Code section 87200 provides:
"This article is applicable to elected state officers, judges and commissioners
of courts of the judicial branch of government, members of the Public Utilities
Commission, members of the State Energy Resources Conservation and
Development Commission, members of the board of supervisors, district
attorneys, county counsels, and chief administrative officers of counties, mayors,
city managers, city attorneys, chief administrative officers and members of city
councils of cities, and to candidates for any of these offices at any election."
3
Section 25117 provides:
"'Hazardous waste' means a waste, or combination of wastes, which because of
its quantity, concentration, or physical, chemical, or infectious characteristics
either:
"(a) Cause, or significantly contribute to an increase inmortality or an increase
in serious irreversible, or incapacitating reversible, illness.
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jurisdiction, (5) and who knows that such discharge or threatened discharge is likely to cause
substantial injury to the public health or safety, (6) must, within seventy-two hours, disclose such
information to the local Board of Supervisors and to the local health officer.
"Obtains" commonly means "to gain or attain possession or disposal of usually by
some planned action or method." (Webster's New Internat. Dict. (3d ed. 1971), p. 1559.) "Obtains"
is in the present tense, indicating present time or action as distinguished from the past tense
("obtained") and past perfect tense ("had obtained").
Moreover, to comply with the statutory duty, the employee is required to make
disclosure within 72 hours of obtaining the information with the requisite knowledge. Such a time
limitation does not suggest that the information may be 10, 20, or 30 years out of date.
All the words of the statute, including "obtains," "revealing," "knows," "is," and
"within seventy-two hours," are consistent with the determination that the information be obtained
on and after January 1, 1987, for the statute to apply. We thus believe that with respect to whether
section 25180.7 applies to information obtained prior to January 1, 1987, the statute is plain and
unambiguous; the answer is "no." In such circumstances we do not add words to the statute so as
"(b) Pose a substantial present or potential hazard to human health or
environment when improperly treated, stored transported, or disposed of, or
otherwise managed. Unless expressly provided otherwise, the term 'hazardous
waste' shall be understood to also include extremely hazardous waste."
Section 25122 provides:
"'Waste' means either of the following:
"(a) Any material for which no use or reuse is intended and which is to be
discarded.
"(b) Any recyclable material [defined in section 25122.5]."
Section 25115 provides:
"'Extremely hazardous waste' means any hazardous waste or mixture of
hazardous wastes which, if human exposure should occur, may likely result in
death, disabling personal injury or serious illness caused by the hazardous waste
or mixture of hazardous wastes because of its quantity, concentration, or chemical
characteristics."
"Hazardous waste" is distinguishable from "hazardous substances" and "hazardous material."
(See § 25501.)
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to cover prior periods. (See People v. Boyd (1979) 24 Cal.3d 286, 294; Great Lakes Properties v.
City of El Segundo (1977) 19 Cal.3d 152, 155; Solberg v. Superior Court (1977) 19 Cal.3d 182,
198.) Nothing in the ballot pamphlet proposing the adoption of section 25180.7 suggests a different
conclusion.
In answer to the first question, therefore, we conclude that the disclosure duty of a
designated government employee specified in section 25180.7 is inapplicable with respect to
information obtained prior to January 1, 1987.
2. Information and Knowledge
The second question asks what information and knowledge a designated government
employee must have to be subject to the disclosure requirements of section 25180.7. Section
25180.7 requires both "information" of some things and "knowledge" of other things to trigger the
disclosure requirement. The employee must obtain information which reveals "the illegal discharge
or threatened illegal discharge of a hazardous waste within the geographical area of his jurisdiction"
and must know that "such discharge or threatened discharge is likely to cause substantial injury to
the public health or safety." Both the requisite information and the requisite knowledge must exist
in the mind of the employee before the duty to disclose arises.
The second element of the disclosure requirement speaks of one "who obtains information."
Webster's Third New International Dictionary (Webster) defines information as:
"something received or obtained through informing: as a: knowledge communicated
by others or obtained from investigation, study or instruction b: knowledge of a
particular event or situation : intelligence, news, advices (latest information from the
battle front) (securing information about conditions in the upper atmosphere)
(information bureau) c: facts or figures ready for communication or use as
distinguished from those incorporated in a formally organized branch of knowledge
: data (reliable source of information)."
Webster's New World Dictionary (2d College Ed.1982) observes that:
"Information applies to facts that are gathered in any way, as by reading, observation,
hearsay, etc. and does not necessarily connote validity [inaccurate information]".
Thus information is that which a person obtains by personal perceptions or from others which makes
him or her aware of a particular event or situation. Information may be accurate or false. It is the
data the mind receives about an event or situation.
Applying this definition to Section 25180.7's information requirement, we note first that it is
only information which the employee obtains "in the course of his official duties" that can trigger
the disclosure requirement. This simply means that the information is obtained by the employee
when he or she is on duty and not during off duty hours, vacation or other absences. It does not
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require that there be a law, regulation or order that the employee obtain the information or do
something with it.
The employee must "obtain" the information. We have already noted that Webster
defines obtain: "to gain or attain possession or disposal of usually by some planned action or
method." In the context of section 25180.7 we think that obtain refers to mental awareness of the
information rather than physical possession of any physical record of the information.
Next we note that the information must "reveal" certain things. Webster defines
reveal as "to open up to view: show plainly and clearly." The thing which the information must
reveal is the discharge of a hazardous waste or the threatened discharge of a hazardous waste.
Further the information must reveal that such discharge is both "illegal" and located within the
geographical area of the employee's jurisdiction.
Section 25180.7 requires that there be a "discharge," actual or threatened, of a
hazardous waste. Discharge is not defined by the statute. Webster defines discharge as a "release
from confinement." In the context of section 25180.7 we think discharge refers to a release of the
hazardous waste from a place of safe confinement into an environment where it may cause harm to
humans.
Finally, the information must reveal that the discharge or threatened discharge of the
hazardous waste is "illegal." This means that the illegality of the discharge must be revealed by the
information obtained by the designated government employee.
To sum up, the information required by section 25180.7 to give rise to a duty to
report must make a designated governmental employee aware, while he or she is on duty, of the
discharge or threatened discharge of a hazardous waste within the geographical area of the
employee's jurisdiction which discharge is illegal.
The more difficult question concerns the knowledge element of section 25180.7,
subdivision (b). To "know" the existence of a fact is "to have perception, cognition, or
understanding of" or "to recognize the quality of, see clearly the character of, discern." (Webster's,
supra, p. 1252; see People v. Calban (1976) 65 Cal.App.3d 578, 584; 1 Witkin, Cal. Crimes (1985
Supp.) § 58, p. 84.) Here, the employee must know of the likelihood of substantial injury. The
statute does not state, for example, that the employee "should have known" of such probability or
had "reasonable suspicion" thereof.
How does one "know" the existence of a fact as a practical matter? One leading
authority on criminal law has observed:
"'Absolute knowledge can be had of very few things,' said the Massachusetts
court, and the philosopher might add 'if any.' For most practical purposes
'knowledge' is 'not confined to what we have personally observed or to what we have
evolved by our own cognitive faculties.' Even within the domain of the law itself the
7. 87-102
word is not always employed with exactly the same signification. Suppose a man
has been told that a certain bill of exchange is a forgery and he believes the statement
to be true. Does he have knowledge of this? Obviously not if the purpose of the
inquiry is to determine whether he is qualified to take the witness stand and swear
that the instrument is false; but if he passes the bill as genuine he will be uttering a
forged instrument with 'knowledge' of the forgery if his belief is correct. The need,
therefore, is to search for the state of mind, or states of mind, which the courts have
spoken of as 'knowledge' for the purpose of a particular case." (Perkins, Criminal
Law (2d ed. 1969), p. 775, fns. omitted.)
Other textbook writers have stated:
"Much of the difficulty involved in ascertaining what, if any, state of mind,
is required for a particular crime lies in the ambiguous meaning of the particular
word or phrase used. Even 'knowingly' is not entirely clear: for instance, does one
know a fact (e.g., that property is stolen) when he is 95% sure of it but not
completely certain?" (1 La Fave & Scott, Substantive Criminal Law (1986) § 3.4,
p. 299.)
Knowledge may be attained either directly or indirectly. (Perkins, supra, p. 775.)
Here the knowledge of the likelihood of substantial injury may be based in part upon experience or
education received years previously. We find no limitation upon the source of the knowledge
specified in section 25180.7, subdivision (b).
Because of the knowledge requirement, one in receipt of false or erroneous
information or one who has insufficient indication of reliability for the information received would
not be required by section 25180.7 to disclose.
In answer to the second question, therefore, we conclude that the information and
knowledge a designated government employee must have in order to be subject to the disclosure
duty specified in section 25180.7 are the receipt of information that an illegal discharge of a
hazardous waste has occurred or is threatened in the geographical area of his jurisdiction and the
knowledge that it is likely to cause substantial injury to the public health or safety.4
3. Proof of a Criminal Act
Subdivision (c) of section 25180.7 provides for a fine of $5,000 to $25,000,
imprisonment in county jail for up to one year or in state prison for up to three years, and forfeiture
of government employment for a felony conviction of "knowingly and intentionally fail[ing] to
4
The employee must, of course, also determine whether the exemptions from disclosure
contained in the statute would be applicable. The language of the statutory exemptions is
beyond the scope of this opinion.
8. 87-102
disclose information required to be disclosed under subdivision (b)."
As is often stated, "the Due Process Clause protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged." (In re Winship (1970) 397 U.S. 358, 369; accord Sandstorm v. Montana
(1979) 442 U.S. 510, 520; People v. Dillon (1983) 34 Cal.3d 441, 472; People v. Harris (1985) 165
Cal.App.3d 1246, 1263.) This constitutional principle is codified in Penal Code section 1096:
"A defendant in a criminal action is presumed to be innocent until the
contrary is proved, and in case of a reasonable doubt whether his guilt is
satisfactorily shown, he is entitled to an acquittal, but the effect of this presumption
is only to place upon the state the burden of proving him guilty beyond a reasonable
doubt. Reasonable doubt is defined as follows: 'It is not a mere possible doubt;
because everything relating to human affairs, and depending on moral evidence, is
open to some possible or imaginary doubt. It is that state of the case, which, after the
entire comparison and consideration of all the evidence, leaves the minds of jurors
in that condition that they cannot say they feel an abiding conviction, to a moral
certainty, of the truth of the charge.'"
Subdivision (c) of section 25180.7 contains three essential elements in specifying the
criminal conduct: (1) Any designated government employee, (2) who knowingly and
intentionally (3) fails to disclose information required under subdivision (b) of the statute. The first
element describes the subject, the second gives the intent, and the third specifies the act (of
omission).
Although "knowingly" is not defined in the Act, we believe that a court would apply
the Penal Code definition of "knowingly" when construing the elements of a section 25180.7
criminal violation. Penal Code section 7 provides in part:
"The word 'knowingly' imports only a knowledge that the facts exist which
bring the act or omission within the provisions of this code. It does not require any
knowledge of the unlawfulness of such act or omission."
As stated in People v. Daniel (1953) 118 Cal.App.2d 340, 343, "'[K]nowingly' signifies knowledge
of the existence of a fact or facts. . . . It has no reference to knowledge of the law." (See CALJIC
No. 1.21 (1979 Rev.); People v. Calban, supra, 65 Cal.App.
3d 578, 584-585; Webster's, supra, p. 1252; 1 Witkin, supra,
§ 58, pp. 62-63.)5
5
One of the facts that must be obtained under subdivision (b) of section 25180.7 is that the
discharge or threatened discharge be "illegal." It is not required, however, that the employee
know his failure to disclose is illegal under subdivision (c) of the statute.
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"Intentionally" may be described as to act in a purposeful manner, with deliberateness
and design. (Webster's, supra, p. 1176.) "'Intentionally' means done with intention of purpose,
intended, designed." (People v. Cloward (1961) 196 Cal.App.2 669, 672; see People v. McCree
(1954) 128 Cal.App.2d 196, 202.)
"Knowingly" and "intentionally" are distinguishable:
"A person may lack knowledge and yet act intentionally or deliberately as
where a person does an act through mistake or unawareness of fact as where a person
makes a representation such as would constitute a basis for a charge of obtaining
property by false pretenses, without knowledge of its falsity and under an honest
belief that it is true or might intentionally pull the trigger of a firearm believing that
it was not loaded. On the other hand a person may have knowledge of a fact but,
inadvertently, may perform an act intentionally but inadvertently, not intending the
act which he in fact performs as where a person, though knowing that one of the bills
in his wallet is counterfeit, inadvertently pays it out while honestly intending to use
a good bill." (Fricke & Alarcon, California Criminal Law (11th ed. 1977) pp. 31-
32.)
Use of the words "knowingly and intentionally" in section 25180.7 precludes a
conviction where the failure to disclose is accidental or due to misfortune (see Pen. Code, § 26;
United States v. Murdock (1933) 290 U.S. 389, 394; People v. Calban, supra, 65 Cal.App.3d 578,
584; Perkins, supra, p. 780), due to inattention, inadvertence, or forgetfulness (see Morrisette v.
United States (1952) 342 U.S. 246, 270; People v. Peabody (1945) 46 Cal.App.3d 43, 49; Perkins,
supra, pp. 592, 782; 1 Witkin, supra, § 67, p. 71), due to negligence (see Pen. Code, §§ 7, 26;
Morrisette v. United States, supra, 342 U.S. 246, 255; United States v. Murdock, supra, 290 U.S.
389, 394-395; People v. Peabody, supra, 46 Cal.App.3d 43, 46; Perkins, supra, p. 780; 1 La Fave
& Scott, supra, §§ 3.3, 3.5, pp. 290, 314; 1 Witkin, supra, § 65, pp. 69-70; Erwin, Millman, Monroe,
Sevilla & Tarlow, Cal. Criminal Defense Practice (1986) § 140.02, p. 140-13, hereafter "Erwin"),
due to ignorance or mistake of fact (see Pen. Code, § 26; Morrisette v. United States, supra, 342 U.S.
246, 270-271; Perkins, supra, pp. 772-779, 785-786, 935, 939; 1 La Fave & Scott, supra, § 5.3, pp.
289-290, 307, 315), due to coercion (see Pen. Code, § 26; United States v. Murdock, supra, 290 U.S.
389, 394, Perkins, supra, pp. 949-961; 1 La Fave & Scott, supra, § 5.3, pp. 614-627; 1 Witkin, supra,
§ 155, p. 149), based on "strict liability" or "vicarious liability" (see Perkins, supra, pp. 784-789,
812-816; 1 La Fave & Scott, supra, §§ 3.8, 3.9, pp. 340-360; 1 Witkin, supra, § 62, p. 66-67; Erwin,
supra, § 140.02, p. 140-14); or due to ignorance or mistake of law other than the terms of section
25180.7 (see Perkins, supra, pp. 935-938; 1 La Fave & Scott, supra, § 3.5, p. 315). Ignorance or
mistake of law with respect to the provisions of section 25180.7 would not be a defense to the
criminal charge. (See Morissette v. United States, supra, 342 U.S. 246, 271; People v. Snyder
(1982) 32 Cal.3d 590; 592-593; People v. Calban, supra, 65 Cal.App.3d 578, 585; Perkins, supra,
pp. 935-938; 1 La Fave & Scott, supra, § 3.3, pp. 289-291.)
It must be recognized that "intentionally" is seldom used in criminal statutes and that
"intent" and "knowledge" convey complex and esoteric concepts; artificial distinctions have lead
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to considerable confusion in this area of criminal law. (See Morissette v. United States, supra, 342
U.S. 246, 264-265; People v. Beaugez (1965) 232 Cal.App.2d 650, 658, fn. 3; Perkins, supra, p. 778;
1 La Fave & Scott, supra, § 3.4, pp. 297-299; Erwin, supra, § 140.02, p. 140-11; 2 Witkin, supra,
§ 874, p. 820; Wasserstrom, Strict Liability in Criminal Law (1960) 12 Stan.L.Rev. 731; Roth,
General versus Specific Intent; A Time for Terminological Understanding in California (1979) 7
Pepperdine L. Rev. 67.) While the foregoing analysis is thus necessarily general, the applicable rule
concerning the interpretation of penal statutes is: "The defendant is entitled to the benefit of every
reasonable doubt . . . as to the true interpretation of words or the construction of language used in
a statute." (In re Tartar (1959) 52 Cal.2d 250, 256-257; accord People v. Craft, supra, 41 Cal.3d
554, 560; People v. Davis (1981) 29 Cal.3d 814, 818.)
Finally, we note the fact that circumstantial evidence and any reasonable inferences
drawn from such evidence may be used to prove the elements of the offense described in section
25180.7, including the element of knowledge. (See People v. Williams (1971) 5 Cal.3d 211, 215;
People v. Bynum (1971) 4 Cal.3d 589, 599; People v. Mosher (1969) 1 Cal.3d 379, 395; People v.
Patino (1979) 95 Cal.App.3d 11, 27.) Where, however, evidence offered to establish an element of
a crime consists principally of circumstantial evidence, "'the facts or circumstances must not only
be entirely consistent with the theory of guilt but must be inconsistent with any other rational
conclusion.'" (People v. Bender (1945) 27 Cal.2d 164, 175; accord People v. Salas (1976) 58
Cal.App.3d 460, 472.)
In answer to the third question, therefore, we conclude that proof beyond a reasonable
doubt that the designated government employee knowingly and intentionally failed to disclose the
information required by section 25180.7 must be established in order to sustain a criminal
conviction.
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