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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Robert Douglas TUCKER, Defendant and Appellant.

No. G011795.

Decided: May 15, 1992

Ronald Y. Butler, Public Defender, Carl C. Holmes, Chief Deputy Public Defender, and Thomas Havlena and Denise M. Gragg, Deputy Public Defenders, for defendant and appellant. Michael R. Capizzi, Dist. Atty., Maurice L. Evans, Chief Asst. Dist. Atty., John D. Conley, Asst. Dist. Atty., and Dave Himelson and Lorri Silverman, Deputy Dist. Attys., for plaintiff and respondent.


Defendant Robert Douglas Tucker was convicted in the municipal court of willfully failing to support his minor child.  (Pen.Code, § 270.)1  On appeal, a divided panel of the superior court's appellate department affirmed the conviction and then certified the case to the Court of Appeal pursuant to section 1471 and rule 63 of the California Rules of Court.   We ordered the case transferred to us to determine whether a 1971 amendment to section 270 creates a separate offense for persons previously adjudicated to be a parent or a valid presumption of paternity and to decide the admissibility of evidence that defendant reasonably believed the minor was not his child. (Cal. Rules of Court, rule 62.)


In January 1987, Kim K. and defendant dated each other.   The two engaged in sexual intercourse.   Kim became pregnant.   She gave birth to Brianna K., October 22.

Kim said she first learned she was pregnant in May 1987, and immediately informed defendant.   But the defense produced a letter Kim wrote to defendant on February 24, 1987, indicating she might be pregnant and stating:  “I already told you that if it turned out positive for me to be pregnant, that you shouldn't feel obligated to it.   I know you are not physically or mentally responsible for the child.   I won't tell anyone that you were behind it, like I said, I got drunk at a party so I didn't know who the guy was, O.K. ․”  The trial judge admitted the letter to impeach Kim, but rejected a defense request to use the letter to establish defendant's state of mind.

Defendant testified that near the end of January, Kim telephoned him, said she had taken a pregnancy test and was not pregnant.   Several weeks later she called again and said she was pregnant, but did not say he was the father.   Shortly thereafter he received the February 24 letter.   Kim did not tell defendant he was the father until six months later.

Defendant never gave Kim money or brought food or clothing to her for the child.   Since she was not able to support the child alone, Kim applied for and began receiving public assistance.

The district attorney filed a paternity action against defendant.   Other than sending the district attorney's office a letter requesting a blood test, defendant did not file a response in the action.   In August 1988, the superior court entered a default judgment declaring him to be the father.   He was personally served with a copy of it.   Defendant also received an order directing him to begin paying child support through the district attorney's office October 1.

In 1988 and the first half of 1989 defendant earned approximately $800 per month.   He lived at his parents' house, but did not pay rent.   Defendant also owned a car during a portion of this time period.   In February 1989, he opened an account at a jewelry store to purchase a $2,900 wedding ring for his girlfriend.

After this prosecution began, defendant, Kim and Brianna submitted to blood tests to determine paternity.   The test results showed a 99.8 percent probability defendant is Brianna's father.

Before trial, the lower court ruled the second sentence of section 270's first paragraph rendered the superior court's paternity judgment conclusive proof defendant was Brianna's father.   Thus, except for allowing defendant to claim he was not served with a copy of the paternity judgment, the court ordered he would be precluded from denying paternity or knowledge of it after October 1, 1988.   A proposed defense instruction stating the jury could acquit defendant if it found that during the period covered by the complaint he reasonably believed Brianna was not his daughter was also rejected.

In addition, the court modified CALJIC No. 16.153 to state as follows:  “The People have the burden of proving that the Defendant is the parent of the minor child.   If you have a reasonable doubt that the Defendant is the parent of the minor child, then you must find the Defendant not guilty.  [¶] However, if a court of competent jurisdiction has made a final adjudication in a civil action that a person is the parent of a minor child and the person has notice of such adjudication, then such ․ person is the parent of the minor child.”


The first paragraph of section 270 provides:  “If a parent of a minor child willfully omits, without lawful excuse, to furnish necessary clothing, food, shelter or medical attendance, or other remedial care for his or her child, he or she is guilty of a misdemeanor punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment.   If a court of competent jurisdiction has made a final adjudication in either a civil or a criminal action that a person is the parent of a minor child and the person has notice of such adjudication and he or she then willfully omits, without lawful excuse, to furnish necessary clothing, food, shelter, medical attendance or other remedial care for his or her child, this conduct is punishable by imprisonment in the county jail not exceeding one year or in a state prison for a determinate term of one year and one day, or by a fine not exceeding two thousand dollars ($2,000), or by both such fine and imprisonment․” 2

As noted, the trial judge ruled the prior civil paternity judgment established defendant was Brianna's father.   Consequently, he modified CALJIC No. 16.153 as indicated, limiting the jury's consideration of the paternity issue to whether a prior judgment had been rendered and defendant had notice of it, and refused to allow him to present a mistake of fact defense as to paternity.

Defendant contends these rulings were reversible error.   First, he claims section 270 creates two separate offenses, one based upon the existence of a prior paternity judgment and the other not.   He reasons the mistake of fact defense is relevant to the latter offense and since the prosecution did not limit its case to the former theory, the lower court erroneously excluded evidence of the mistake of fact defense and misinstructed the jury.   Alternatively, he argues that if section 270 states only one offense, the lower court applied it so as to create a constitutionally infirm conclusive presumption of paternity that was established by a preponderance of the evidence.

The People claim the 1971 amendment to section 270 changed its focus from biological paternity to legal responsibility.   Under this approach a person who willfully fails to support a child can be convicted of violating section 270 if the evidence establishes beyond a reasonable doubt that he or she is the child's biological parent, or a court of competent jurisdiction has made a final determination of his or her paternity and the defendant is aware of it.   Here, the People relied on the prior paternity judgment to establish its case.   Thus, they contend the lower court's interpretation of the statute did not allow an essential element of the crime to be proven by a preponderance of the evidence or by use of an invalid conclusive presumption.

I. Section 270

 We disagree with defendant's first argument.   When interpreting a statute, a court must ascertain the Legislature's intent, and in doing so, it first turns to the statute's language.  (Walker v. Superior Court (1988) 47 Cal.3d 112, 121, 253 Cal.Rptr. 1, 763 P.2d 852.)   The nonfeasance described by both sentences is the same.   Furthermore, the statute is not divided into subdivisions as is ordinarily done when the Legislature intends to create separate offenses.

 The Legislature amended section 270 in 1971 to add the current second sentence.  (Stats. 1971, ch. 1587, § 1, p. 3202.)   It was merely another attempt to impose greater punishment on certain persons for willfully failing to support their children.3  In People v. Gregori, supra, 144 Cal.App.3d 353, 192 Cal.Rptr. 555, however, the court held increasing the punishment for one who has knowledge of a prior judicial determination of paternity violated the federal and state Constitutions' equal protection guarantees.  (Id. at pp. 358–359, 192 Cal.Rptr. 555.)   In so ruling, it described the statute as follows:  “[S]ection 270 is a misdemeanor where the father wilfully omits without lawful excuse to furnish necessary clothing, food, shelter or medical attendance for his child, but the identical conduct becomes a ‘wobbler,’ either a felony or a misdemeanor, where ‘․ a court of competent jurisdiction has made a final adjudication in either a civil or a criminal action that a person is the parent of a minor child and the person has notice of such adjudication․’ ”  (Id. at p. 358, 192 Cal.Rptr. 555, emphasis added.)

Gregori noted the conduct proscribed by the first two sentences is identical and the only difference between them is the punishment that can be imposed.   It did not construe section 270 as creating two separate offenses.   Neither do we.

II. Presumption of Paternity

The record reflects the trial judge found the statute creates a conclusive presumption of paternity where a prior judicial determination exists and the defendant has notice of the ruling.   He modified CALJIC No. 16.153 to state that if the jury found a prior final paternity judgment had been entered and defendant knew of it, the element of paternity would be established.

 We conclude the trial court's interpretation of section 270 is erroneous.   It is well settled that, in a prosecution under section 270, paternity is an essential element of the crime and must be established beyond a reasonable doubt.  (People v. Sorensen (1968) 68 Cal.2d 280, 285–286, 66 Cal.Rptr. 7, 437 P.2d 495;  Patterson v. Municipal Court (1965) 232 Cal.App.2d 289, 294, 299, 42 Cal.Rptr. 769;  People v. Kovacevich (1937) 19 Cal.App.2d 335, 338, 65 P.2d 807.)

In People v. Kovacevich, supra, 19 Cal.App.2d 335, 65 P.2d 807, the prosecution introduced evidence that defendant had been adjudicated the minor's father in a prior civil action.   The trial court precluded the defense from producing evidence concerning the issue of paternity and instructed the jury that the issue had been conclusively determined by the prior judgment.   The Court of Appeal reversed.  “It is a fundamental rule of criminal procedure that in the trial of an action wherein a defendant is charged with the commission of a crime, the prosecution is required to prove every element of the offense beyond a reasonable doubt.   In this respect there is a marked difference between the degree of proof which is thus required and that which is imposed upon a plaintiff in a civil action.  [Citation.]   In the latter all that is required is that the affirmative allegations requisite to the cause of action stated by the plaintiff's complaint shall be established by a preponderance of the evidence.   In the instant action it must be conceded that the issue of paternity was an essential element of the offense of which appellant was accused.  [Citations.]   This element the prosecution was required to establish beyond a reasonable doubt, and not by a mere preponderance of the evidence, which was all that was required of the plaintiff in the civil suit․”   (Id. at p. 338, 65 P.2d 807.) 4

In Patterson v. Municipal Court, supra, 232 Cal.App.2d 289, 42 Cal.Rptr. 769, the defendant and the mother married three months before the child's birth.   Later, the couple divorced.   In the divorce proceeding, defendant did not challenge the allegation he was the child's father and the divorce decree so determined.   In a subsequent criminal prosecution against defendant under section 270 the trial court made a pretrial ruling that proof of paternity could be established by a preponderance of the evidence and concluded the prior divorce decree was res judicata on the issue.

The Court of Appeal issued a writ prohibiting the lower court from removing the paternity issue from the jury.   Concerning the question of whether the divorce decree was res judicata as to paternity, it stated:  “The main answer to respondent's contention is that to make a judgment in a civil action conclusive of a material issue in a criminal action would deny the defendant in the latter of due process in that his guilt of a crime would not be proved beyond a reasonable doubt.”  (Patterson v. Municipal Court, supra, 232 Cal.App.2d at p. 303, 42 Cal.Rptr. 769.   See also Salas v. Cortez (1979) 24 Cal.3d 22, 29, fn. 5, 154 Cal.Rptr. 529, 593 P.2d 226;  County of El Dorado v. Schneider (1987) 191 Cal.App.3d 1263, 1270–1271, 237 Cal.Rptr. 51.)

The People argue that if section 270 does create a presumption it passes constitutional muster.   But no reference is made to the statute's language or history indicating the Legislature intended to establish a presumption of paternity when it amended section 270 in 1971.   In attempting to establish the element of paternity, the prosecution has available several methods of proof, including the mother's testimony, a defendant's prior admission, if any, and blood tests.   In addition, a final judgment in a prior action is also admissible evidence.  (§ 270e.)   We discern no intent by the Legislature to create either a separate crime or a presumption of paternity, or to establish an alternative means of proving the offense.5

Accordingly, we conclude the lower court erred when it modified CALJIC No. 16.153 to add the second paragraph.   That modification had the effect of creating a conclusive presumption of paternity.   Such a presumption is invalid.  (People v. Roder (1983) 33 Cal.3d 491, 501–502, 189 Cal.Rptr. 501, 658 P.2d 1302.)

III. Mistake of Fact Defense

 The trial judge also precluded defendant from introducing evidence he reasonably believed Brianna was not his child and denied a request to give the following instruction:  “If under the circumstances, during the complaint period ․ you find that Robert Tucker had a reasonable belief that he was not the father of the child ․, and on that basis you find his failure to provide was not willful, he is entitled to a verdict of not guilty.”

A person who commits an act or makes an omission under a mistake of fact disproving criminal intent is excluded from the class of persons capable of committing a crime.  (Pen.Code, § 26, subd. Three.)   This defense has been applied in several contexts.  (People v. Mayberry (1975) 15 Cal.3d 143, 154–155, 125 Cal.Rptr. 745, 542 P.2d 1337 [belief that a rape victim consented to engage in sexual intercourse];  People v. Hernandez (1964) 61 Cal.2d 529, 535–536, 39 Cal.Rptr. 361, 393 P.2d 673 [belief that the complaining witness in a statutory rape prosecution had obtained the age of consent];  People v. Vogel (1956) 46 Cal.2d 798, 803–804, 299 P.2d 850 [belief that a prior marriage was legally terminated in a bigamy prosecution];  People v. Lucero (1988) 203 Cal.App.3d 1011, 1017–1018, 250 Cal.Rptr. 354 [in a prosecution for conspiring to smuggle narcotics into a jail, belief that defendant was immune because he was acting as a police informant at the time];  People v. Bray (1975) 52 Cal.App.3d 494, 498–499, 124 Cal.Rptr. 913 [in prosecution for being a felon in possession of a concealable weapon, belief that defendant had not been previously convicted of a felony];  People v. Navarro (1979) 99 Cal.App.3d Supp. 1, 10–11, 160 Cal.Rptr. 692 [in theft prosecution, belief that defendant had a legal right to the property taken].)  The rationale for this defense is that “one who labors under a mistake of fact that negates the existence of any criminal intent cannot be convicted of a crime.  [Citations.]”  (People v. Castillo (1987) 193 Cal.App.3d 119, 124, 238 Cal.Rptr. 207.)

Here, defendant presented evidence that supported the defense.   There was conflicting evidence concerning when defendant learned he might be the child's father.   Defendant testified he did not fully understand the nature of the papers served on him in the paternity action and believed his request for a blood test constituted a sufficient response.   He denied being aware the superior court had determined he was Brianna's father.

In People v. Crawford (1962) 205 Cal.App.2d Supp. 858, 23 Cal.Rptr. 566, the appellate court rejected the claim a prior judicial determination was required before a person could know he or she was the minor's parent.  (Id. at p. 860, 23 Cal.Rptr. 566.)   But here, defendant claims that even in light of a prior paternity determination, he reasonably believed Brianna was not his child.   Therefore, Crawford is distinguishable.

“It is well settled that ‘a defendant has a constitutional right to have the jury determine every material issue presented by the evidence․’  [Citation.]   A trial court must instruct on general principles of law whether or not a request has been made;  this duty encompasses the obligation to instruct on defenses.  [Citation.]   It is reversible error to refuse to instruct on a defense where substantial evidence so warrants.  [Citations.]”   (People v. Lucero, supra, 203 Cal.App.3d at p. 1018, 250 Cal.Rptr. 354, fn. omitted.)

The lower court not only refused defendant's proffered instruction, it also excluded evidence relevant to his mistake of fact defense concerning his paternity status.   Accordingly, we conclude the lower court also committed reversible error by restricting evidence on the defense and refusing to instruct the jury on this issue.


The judgment of the lower court is reversed.


1.   All statutory references are to the Penal Code unless otherwise specified.

2.   The potential increase in punishment for a conviction where the defendant has knowledge of a prior adjudication of paternity was ruled unconstitutional in People v. Gregori (1983) 144 Cal.App.3d 353, 358–359, 192 Cal.Rptr. 555.   The Legislature never deleted the sentence.

3.   In 1939, the Legislature made its first attempt to increase the punishment for violating section 270 under certain circumstances by adding the following sentence to the statute:  “If the father, during such violation, remains out of the State for thirty days, or if he fails or refuses to comply with the order of a court of competent jurisdiction requiring him to make any provision for the maintenance, support, medical treatment or other remedial care of such minor child and remains out of the State for ten days without doing so, he is guilty of a felony.”  (Stats.1939, ch. 1001, § 1, p. 2783.)   Both portions of this sentence were later held unconstitutional.  (In re King (1970) 3 Cal.3d 226, 229–230, 90 Cal.Rptr. 15, 474 P.2d 983;  People v. Temple (1971) 20 Cal.App.3d 540, 544–545, 97 Cal.Rptr. 794.)   But neither case construed the sentence as creating a separate crime.  (See In re King, supra, 3 Cal.3d at p. 232, 90 Cal.Rptr. 15, 474 P.2d 983;  People v. Temple, supra, 20 Cal.App.3d at p. 544, 97 Cal.Rptr. 794.)

4.   People v. Kovacevich, supra, 19 Cal.App.2d 335, 65 P.2d 807 also held the judgment in a civil action was not competent evidence in a criminal prosecution under section 270.   But it was decided before section 270e was amended to add the last sentence which reads:  “In any prosecution pursuant to Section 270, the final establishment of paternity or nonpaternity in another proceeding shall be admissible as evidence of paternity or nonpaternity.”

5.   The Legislature can assuredly make nonsupport a crime as to those persons judicially determined to be a parent, even though they were not biologically the parent.   In that event, no presumption would be involved.  (See In re Feiock (1989) 215 Cal.App.3d 141, 148, 263 Cal.Rptr. 437.)   However, it has not done so.

MOORE, Associate Justice.

SILLS, P.J., and WALLIN, J., concur.

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