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Court of Appeal, Sixth District, California.

IN RE: Mark BETTENCOURT, on Habeas Corpus.

No. H010325.

Decided: June 15, 1993

Anthony Boskovich, Palo Alto, under Appointment by the Court of Appeal, for petitioner. Steven M. Woodside, Santa Clara County Counsel, and Kim Steinhardt, Deputy County Counsel, for respondent.

 Mark Bettencourt seeks relief by petition for writ of habeas corpus from an order adjudging him in contempt of court for failure to pay child support, medical insurance, and attorney fees.   Respondent Santa Clara County Superior Court suspended imposition of sentence and placed Bettencourt on three years probation on condition that he make timely payments of “support and arrears.” 1  Bettencourt contends that the superior court had no jurisdiction to render the order because no substantial evidence supported the finding that he had the ability to make the payments at issue.

We solicited and received from the superior court an informal response to Bettencourt's petition.  (Cal.Rules of Court, rule 60.)   Bettencourt filed a reply.   We then issued an order to show cause.  (In re Lawler (1979) 23 Cal.3d 190, 194, 151 Cal.Rptr. 833, 588 P.2d 1257.)   The parties elected to have their papers on file serve as the formal return (Pen.Code, § 1480) and traverse (Pen.Code, § 1484).   We agree with Bettencourt and therefore annul the order.2


“Judgments and orders made in contempt proceedings are final and conclusive;  as such, they are nonappealable.  [Citations.]  Review may be had by the extraordinary writs of certiorari or, where [the contemner is imprisoned or otherwise restrained of his liberty (In re Jennings (1982) 133 Cal.App.3d 373, 375, fn. 1, 184 Cal.Rptr. 53)], habeas corpus․”  (Moffat v. Moffat (1980) 27 Cal.3d 645, 656, 165 Cal.Rptr. 877, 612 P.2d 967.)

“The facts essential to establish jurisdiction in the contempt proceeding, and thus to enable the trial court to punish the accused, are:  (1) the making of the order;  (2) the accused's knowledge of the order;  (3) the accused's ability to render compliance[;]  and (4) the accused's willful disobedience of the order.   It is also required that the accused be proceeded against under due process.  [Citations.]  [¶] ‘It is established that “[i]n reviewing an adjudication of contempt, ‘the sole question before us is one of jurisdiction of the trial court to render the judgment under review, and in such a case the review of the evidence is limited to determining whether there was any substantial evidence to sustain the jurisdiction of the trial court.’   [Citations.]  More recently [our high court] said that ‘the responsibility of the reviewing court is merely to ascertain whether there was sufficient evidence before the trial court to sustain the judgment and order.   The power to weigh the evidence rests with the trial court.’ ”  [Citation.]'  [Citations.]”  (Coursey v. Superior Court (1987) 194 Cal.App.3d 147, 154, 239 Cal.Rptr. 365.)

 “In a contempt proceeding resulting in punitive sanctions 3 ․ guilt must be established beyond a reasonable doubt․  In the review of a contempt proceeding ‘the evidence, the findings, and the judgment are all to be strictly construed in favor of the accused [citation], and no intendments or presumptions can be indulged in aid of their sufficiency.   [Citation.]  If the record of the proceedings, reviewed in the light of the foregoing rules, fails to show affirmatively upon its face the existence of all the necessary facts upon which jurisdiction depended, the order must be annulled.’  [Citation.]”  (Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1256, 265 Cal.Rptr. 144, 783 P.2d 731.)


A specific statute limits the facts necessary to establish contempt jurisdiction in proceedings concerning child support and medical expense payments.  Code of Civil Procedure section 1209.5 states:  “When a court of competent jurisdiction makes an order compelling a parent to furnish support or necessary food, clothing, shelter, medical attendance, or other remedial care for his or her child, proof that the order was made, filed, and served on the parent or proof that the parent was present in court at the time the order was pronounced and proof of noncompliance therewith shall be prima facie evidence of a contempt of court.”

In granting a petition for writ of habeas corpus, the court in the case of In re Feiock (1986) 180 Cal.App.3d 649, 225 Cal.Rptr. 748 (hereafter, Feiock I), held this statute was unconstitutional because it established a mandatory presumption shifting to the accused the burden to prove the essential element of ability to pay.  (Id. at p. 653, 225 Cal.Rptr. 748.)

The United States Supreme Court granted certiorari in Feiock I and, after discussing the distinction between civil and criminal contempt, agreed that the presumption would violate federal due process principles in a criminal contempt proceeding by undercutting the state's burden to prove guilt beyond a reasonable doubt.   It noted, however, that due process does not prohibit a state from employing the presumption in a civil contempt proceeding.  (Hicks v. Feiock, supra, 485 U.S. at pp. 637–640, 108 S.Ct. at pp. 1432–1434.)   It acknowledged that Feiock I considered the underlying contempt proceeding as “quasi-criminal,” but remanded the case to the California appellate court because that court did not have the benefit of its analysis as to the characteristics of civil and criminal contempt.  (Id. at pp. 640–641, 108 S.Ct. at pp. 1434–1435.)

On remand, the court in In re Feiock, supra, 215 Cal.App.3d 141 (hereafter, Feiock II ) denied the petition even though it concluded that the underlying contempt proceeding was a criminal one.   It made an about-face and concluded that Code of Civil Procedure section 1209.5 eliminates ability to pay as an element of child support contempt.  (Feiock II, supra, 215 Cal.App.3d at pp. 146–147, 263 Cal.Rptr. 437.)   It saved the constitutionality of the statute without distinguishing civil and criminal contempts by interpreting the statute to make inability to pay an affirmative defense which must be raised by the contemner and, if raised, then the petitioner has the burden of proving, beyond a reasonable doubt, that the contemner has the ability to pay.  (Id. at p. 148, 263 Cal.Rptr. 437.)

Feiock II does not explain what is required to raise the affirmative defense of ability to pay in a child support contempt proceeding.   In general, however, the concept contemplates that the contemner produce the initial evidence on the issue.

 “In the ordinary criminal case, the burden of producing evidence of guilt and of proving such guilt beyond a reasonable doubt is upon the prosecutor.   The accused is not required to present any evidence.  [¶] If, however, the accused interposes an affirmative defense ․ the burden of producing evidence ․ rests in the first instance upon the accused.   The approach is fair and makes sense, primarily because the facts in support of such a defense would be peculiarly within the knowledge of the accused.   It is not for the prosecutor to anticipate and then to negate, in the first instance, every conceivable defense that the accused might interpose.   Therefore, in order for a particular defense to be deemed ‘raised’ or ‘in issue,’ the accused is merely called upon to produce some evidence thereof—the degree of evidence necessary being a question of law for the trial judge to resolve. 4  Of course, in this connection, the accused may also take advantage of any evidence presented by the prosecutor.  [¶] If the accused fails to produce enough evidence, the claim ․ would simply not be an issue in the case.  [¶] If, on the other hand, the accused produces enough evidence, the claim ․ would be deemed ‘raised’ and ‘in issue.’   The burden of producing evidence in respect of this issue would now shift to the prosecutor.   The prosecutor would now be required to produce evidence tending to negate the claim․  Indeed, in respect of [some] issue[s], the prosecutor would also have the persuasion-burden of proof beyond a reasonable doubt.”  (1 Torcia, Wharton's Criminal Evidence (14th ed. 1985) Burden and Degree of Proof, § 19, pp. 45–47, fns. omitted.)

The majority in Feiock II interpreted Code of Civil Procedure section 1209.5 to allow a different procedural posture for child support contempt proceedings over a dissent which held to the court's previous view that ability to pay was an element of the offense.  (See Feiock II, supra, 215 Cal.App.3d at pp. 149–154, 263 Cal.Rptr. 437 (dis. opn. of Sonenshine, J.).)   Revisiting the debate has little practical consequence in a case like this one where the contemner unquestionably carries his burden of production by submitting evidence in an attempt to prove his inability to pay.

“ ‘Crimes' and ‘defenses' both set forth substantive conditions of liability.   The issues raised on both categories of doctrine must be resolved against the defendant in order to convict․  [¶] Traditionally, the only functional difference between a ‘crime’ and a ‘defense’ has been ․ allocation of the burden of proof.   The essential consequence of labeling an issue as a defense rather than as an element of the crime is that consideration of the issue is precluded unless the matter is raised by competent evidence.   In other words, a defense places the risk of nonproduction on the defendant.   Some defenses may also require the defendant to carry the burden of persuasion, that is, to bear the risk of failing to convince the trier of fact, usually by a preponderance of the evidence, that the specified exculpation does exist.   For an issue designated an element of the crime, by contrast, both the burdens of production and persuasion ordinarily remain on the prosecution.”  (Jeffries & Stephan, Defenses, Presumptions, and Burden of Proof in the Criminal Law (1979) 88 Yale L.J. 1325, 1332, fns. omitted.)

In short, an affirmative defense which does not impose a burden of proof upon the accused operates just as an element once the burden of production is met.   We therefore focus on the issue in this case rather than its procedural character.


Bettencourt's former wife, Kris Ann Kirby, instituted this contempt proceeding within the dissolution action.   She alleged that Bettencourt had willfully disobeyed certain orders rendered in his presence to pay child support, medical insurance, and attorney fees covering a period from September 1990 through January 1992.   She also alleged that he was able to comply with each order when it was disobeyed.   She appeared at the hearing and testified.   Bettencourt did not file any written response, but appeared at the hearing and testified.

At the hearing in April 1992, copies of the relevant orders were received in evidence and Kirby's attorney represented to the court that Bettencourt had made to her three untimely, $50 monthly installments of court-ordered attorney fees.5

Kirby then testified that Bettencourt had failed to pay 11 $500 monthly installments of child support (during a 12–month period from September 1990 through August 1991), 3 $750 monthly installments of child support (during a 3–month period from November 1991 through January 1992),6 and 2 monthly installments owing in December 1991 and January 1992 for medical insurance and expenses.7

Kirby acknowledged that Bettencourt made two partial child support payments during the twelve-month period, three partial payments during the three-month period, and an $18 partial payment for the medical expenses.

Bettencourt testified that he was a self-employed construction worker who was barely surviving.   He estimated that his income for the past 12 months (which excluded the first 8 months at issue) averaged $1,100 per month and his expenses were about $3,000 per month.   He indicated that he was married and had an eight-month-old child.   He stated that he had paid Kirby over the past year as much as he possibly could and paid the attorney fees late because he had no money.   Bettencourt continued that he currently owned nothing and owed over $26,000.   He paid no income tax the previous year because he did not make enough money.   On cross-examination, he acknowledged that he had agreed five months previously to the stipulated order increasing his child support obligation from $500 to $750, but explained that he had stated at the time that he could not afford it unless he was working on a job paying him enough money.   He also responded that he had been having sporadic financial difficulty for the last two and one-half years.

The superior court dismissed one count of contempt (payment for November 1991) and found Bettencourt guilty of nineteen counts.   It explained:  “The court has the fact that the defendant at a time in November of 1991 entered into an agreement that he pay $750 a month, and apparently raised no question that he had no funds at all since September of '90.  [¶] During the period September '90 until November 1991, when he was here in court, he chose to marry and father another child.  [¶] He has claimed here in court today that he has total expenses each month of $3,000, and yet somehow he only earns $1100 a month, that flies in the face of the credibility.  [¶] He claimed he paid no taxes last year.   There was no tax form presented to the court or any other documentary evidence.  [¶] The court has observed the witness and court disbelieves the defendant.  [¶] With regard to his financial circumstances, the court finds he had an ability to pay and he chose not to.   So I find it to be a willful disobedience.''


 After Bettencourt submitted the evidence on inability to pay, Kirby offered no evidence on ability to pay.   Bettencourt's evidence of inability was the only evidence on the issue.   Kirby clearly failed to carry her burden of proof.

 The superior court's decision on ability to pay was expressly based upon its disbelief of Bettencourt's evidence on inability.   This reasoning is erroneous.   A court cannot render a criminal contempt conviction by deducing ability to comply solely from a disbelief of evidence showing an inability to comply.

This concept was addressed in Coursey v. Superior Court, supra, 194 Cal.App.3d 147, 239 Cal.Rptr. 365.   There, a mother was held in contempt of an order giving the father regular visitation with the parties' 14–year–old daughter.   The daughter had refused to visit.   The trial court found ability to comply because the order was not observed and there was no substantial justification for not observing it.   In a petition for writ of certiorari, the mother claimed that no substantial evidence supported a finding that she had the ability to comply with the order, i.e., the ability to compel the daughter to visit.   The court agreed and explained:  “[T]he burden of proof is on the movant to prove contempt beyond a reasonable doubt.  [Citation.]  By deducing the ability to comply from the absence of proof of substantial justification, the trial court impermissibly shifted the burden to [the mother] to establish her inability to comply.   The trial court's error is obviously prejudicial because there was no other evidence of [the mother's] ability to comply with the order.   The contempt adjudication must be annulled.”  (Id. at p. 156, 239 Cal.Rptr. 365.)

We acknowledge that the superior court also relied upon the November 1991 order increasing Bettencourt's child support payment to $750.   In other words, the superior court inferred ability to pay from the existence of an order to pay.  (Martin v. Superior Court (1971) 17 Cal.App.3d 412, 415, 95 Cal.Rptr. 110 [“inherent in an order for child support is a determination of a present ability to make the required payments.   It seems reasonable to infer that more likely than not such an ability will continue․  From a finding of ability to pay at the time of the order and the failure to seek its modification, inferences may reasonably be drawn that an ability to meet the ordered payments continues․”].)

This type of inference has long been utilized in civil contempt proceedings.   (See Mery v. Superior Court (1937) 9 Cal.2d 379, 380, 70 P.2d 932 [“ ‘Where the ability of the contemner to comply with the order had already been determined by the court, it has been held that it is only necessary that the affidavit allege the making of the order and the refusal to comply with it.   [Citations.]  The cases cited in support of the last statement both involved an affidavit filed soon after the order or judgment was entered.   In such cases there is every reason for holding that the statement of the entry of the order or judgment is sufficient where the question of the ability to comply with the order was there determined․’ ”].) 8

 A criminal contempt conviction, however, cannot rest solely upon an inference where the basic fact from which the inference is drawn also admits to an inference consistent with innocence.

“It is a well recognized principle of our criminal law that where the evidence offered to establish an element of a crime consists principally of circumstantial evidence, it is essential to justify a conviction that ‘ “the facts or circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion.”   It cannot be too strongly emphasized that such quoted statement enunciates a most important rule governing the use of circumstantial evidence․’  [Citation.]”  (People v. Salas (1976) 58 Cal.App.3d 460, 472, 129 Cal.Rptr. 871.)

 A recent order to pay child support does not necessarily lead to a conclusion that the obligee had a present ability to pay.  “Ability to pay can literally change within a day—the day the contemner hears, ‘You're fired.’   Under such circumstances it is unlikely that the potential contemner will rush right out and spend money—assuming there is any—on an attorney to seek a modification.”  (Feiock II, supra, 215 Cal.App.3d at p. 148, fn. 11, 263 Cal.Rptr. 437.)

 Moreover, when the order in this case is strictly construed in favor of the accused, it does not support the inferred fact.

The order was based upon a stipulation that made no representation of Bettencourt's ability to pay.   Thus, there is no inherent court-determination or express admission of ability to pay within the order.

In summary, the order by itself is insufficient to prove beyond a reasonable doubt that Bettencourt had the ability to make the two child support and two medical payments.9


There is no substantial evidence that Bettencourt had the ability to comply with the court orders underlying this contempt proceeding.   The order of contempt is annulled.


1.   The court initially imposed a 75–day jail sentence as part of Bettencourt's probation, but later suspended the sentence on condition that “ongoing support payments are made.”   The superior court does not question that the constructive restraint of the conditional suspended sentence gives Bettencourt standing to seek habeas corpus relief.  (See, e.g., In re Feiock (1989) 215 Cal.App.3d 141, 145, 263 Cal.Rptr. 437;  cf. In re Hochberg (1970) 2 Cal.3d 870, 874, fn. 3, 87 Cal.Rptr. 681, 471 P.2d 1 [execution of sentence stayed];  see Hicks v. Feiock (1988) 485 U.S. 624, 639, fn. 11, 108 S.Ct. 1423, 1433, fn. 11, 99 L.Ed.2d 721 [a fixed term of probation is a punishment that is criminal in nature].)

2.   Bettencourt filed a motion to modify the order of contempt.   Pursuant thereto an order after hearing and an amended order and findings after hearing were rendered.   Bettencourt makes an argument pertaining to these orders.   The orders, however, necessarily dissolve with our annulment of the principal order.

3.   Punitive sanctions, as distinguished from remedial sanctions, indicate that the contempt proceeding is a criminal action implicating the full panoply of due process safeguards afforded criminal defendants under the federal Constitution.  (Hicks v. Feiock, supra, 485 U.S. at pp. 631–632, 108 S.Ct. at pp. 1429–1430.)  “If the relief provided is a sentence of imprisonment, it is remedial if ‘the defendant stands committed unless and until he performs the affirmative act required by the court's order,’ and is punitive if ‘the sentence is limited to imprisonment for a definite period.’  [Citation.]”  (Id. at p. 632, 108 S.Ct. at p. 1429.)   Here, the superior court sentenced Bettencourt to a certain three-year probationary period with the prospect of a jail sentence if he violated the probationary terms.   Bettencourt cannot purge himself of this sentence by performing any affirmative act.   He was thus subjected to criminal contempt proceedings.  (See, e.g., In re Feiock, supra, 215 Cal.App.3d at p. 145, 263 Cal.Rptr. 437.)

4.   “In California we impose only the most minimal burden upon a defendant with respect to excuse or justification.   All that is required is that there be some evidence supportive of excuse or justification or that the defendant in some manner inform the court that he is relying upon such a defense.   In such a case the jury must be instructed on the defense and the prosecution bears the burden of disproving it beyond a reasonable doubt.”  (People v. Frye (1992) 7 Cal.App.4th 1148, 1158–1159, 10 Cal.Rptr.2d 217 [defendant has burden of production on defenses of excuse or justification in murder case].)

5.   Counsel's unsworn representation is obviously not evidence upon which a criminal conviction can rest.   Nor is counsel's written declaration which she submitted to the superior court without its formal receipt into evidence.

6.   In November 1991, the parties agreed to a stipulated order to increase the child support amount so as to amortize arrearages.

7.   The November 1991 order also provided that Bettencourt would pay one-half of the medical insurance costs and uninsured medical expenses.

8.   The context in Mery had not been determined.   The Supreme Court merely granted a writ of prohibition restraining prosecution.   Thus, neither punitive nor remedial sanctions had yet been imposed.   But the cases Mery relied upon for the stated proposition, In re McCarty (1908) 154 Cal. 534, 98 P. 540, and In re Rasmussen (1922) 56 Cal.App. 368, 205 P. 72, were civil contempt proceedings in which the courts placed the burden upon the contemner to raise and prove inability to pay.

9.   Since there is no logical connection between a present ability to pay deduced from the November 1991 order and the obligations antedating the order, the superior court could not in any event rationally infer Bettencourt's ability to pay the 15 obligations that accrued before November 1991.

PREMO, Acting Presiding Justice.

ELIA and MIHARA, JJ., concur.