IN RE: Paul M. AGUILAR on habeas corpus.

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Court of Appeal, First District, Division 1, California.

IN RE: Paul M. AGUILAR on habeas corpus.

Cr. 17502.

Decided: March 28, 1978

Sheldon N. Portman, Public Defender, David M. Mann, Deputy Public Defender, San Jose, for petitioner. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Gloria F. DeHart, Patrick G. Golden, Deputy Attys. Gen., San Francisco, for People of the State of California.

Relying on the holding of Cotton v. Municipal Court, 59 Cal.App.3d 601, 130 Cal.Rptr. 876 (decided 6/28/76, hg. den. 8/26/76) petitioner challenges the validity of his conviction of violating Penal Code section 270 (wilful failure to provide for a minor child)1 based upon his plea of guilty entered on May 4, 1973. We agree with the Cotton holding that the subject statute is constitutionally infirm in its unequal and discriminatory classification based upon the sex of the offender and conclude that petitioner's conviction may not lawfully stand.

Procedural Background

Upon his plea of guilty petitioner received a suspended sentence and was placed on two years' formal probation. Following a history of probation revocation and reinstatement, probation was eventually revoked on March 10, 1976, and petitioner sentenced to a one-year term in the county jail. Shortly thereafter, petitioner absconded and remained a fugitive until rearrested on February 12, 1977; two days later he was remanded into custody to begin serving the one-year jail sentence previously imposed. On May 23, 1977, his petition for habeas corpus was denied by the Superior Court of Santa Clara County. He then sought a writ of habeas corpus in this court, which was summarily denied on September 16, 1977. (1 Crim. 17307.) On September 30, 1977, petitioner filed for a writ of habeas corpus in the Supreme Court which issued an order to the Sheriff of Santa Clara County to show cause before this court why the petition should not be granted.2

I. It is generally established that a conviction under an unconstitutional statute may be challenged collaterally, notwithstanding the conviction was based upon a plea of guilty (In re Johnson (1970) 3 Cal.3d 404, 417-418, 90 Cal.Rptr. 569, 475 P.2d 841; In re Caffey (1968) 68 Cal.2d 762, 69 Cal.Rptr. 93, 441 P.2d 933), since in legal contemplation a statute found unconstitutional is a void statute conferring no rights or protection, imposing no duties nor creating any offense. (See generally 13 Cal.Jur.3d, Constitutional Law, s 81, p. 149; 5 Witkin, Summary of Cal. Law, Constitutional Law, s 64, p. 3303, and cases cited therein; cf. In re Schillaci (1961) 196 Cal.App.2d 591, 16 Cal.Rptr. 757.)

Petitioner's challenge by habeas corpus to the constitutionality of section 270 in light of the Cotton decision is thus appropriate. (See In re Johnson, supra, 3 Cal.3d 404, 417; In re Schillaci, supra, 196 Cal.App.2d 591, 16 Cal.Rptr. 757.)

II. Petitioner rests his claim for relief upon the holding in Cotton that section 270 as it then read (fn.1, ante) was unconstitutional by reason of its invidious discrimination between parents of minor children on the basis of sex, a suspect classification. (Cotton v. Municipal Court, supra, 59 Cal.App.3d 601, 606, 130 Cal.Rptr. 876; see also Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 195 Cal.Rptr. 329, 485 P.2d 529; Arp v. Workers' Comp. Appeals Bd. (1977) 19 Cal.3d 395, 138 Cal.Rptr. 293, 563 P.2d 849.)

We agree with the conclusion in Cotton that the provisions of the Penal Code section imposing primary criminal liability upon the father for wilful failure to provide for a minor child while holding the mother only secondarily liable, violate the equal protection guarantee of the Fourteenth Amendment to the United States Constitution and its counterpart clause in the California Constitution (art. I, s 7(a)).

In Cotton, as here, the errant father challenged the constitutionality of the statute on the grounds that it discriminated solely on the basis of sex by imposing penal sanctions primarily on a father who wilfully fails to provide support “even if the mother of such children was voluntarily providing for their support.” (Cotton v. Municipal Court, supra, 59 Cal.App.3d 601, 606, 130 Cal.Rptr. 876, 880.) The statute thus discriminated on the basis of a suspect classification (Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d 1, 20, 195 Cal.Rptr. 329, 485 P.2d 529), particularly as applied to a fundamental interest of personal liberty (People v. Olivas (1976) 17 Cal.3d 236, 251, 131 Cal.Rptr. 55, 551 P.2d 375) and, in the absence of a showing of compelling state interest justifying the law and the necessity for the distinctions drawn, cannot withstand review under the strict standards of scrutiny applicable to such challenges based upon equal protection grounds. As in Cotton, no such showing has been made herein by respondent. We agree with the reasoning in Cotton that the state's interest in securing support for minor children, and in relieving the public burden where parents are able to provide such support, is better served by a law which makes each parent equally responsible.3 (Cotton v. Municipal Court, supra, 59 Cal.App.3d, at pp. 606-607, 130 Cal.Rptr. 876.)

We conclude that the challenged statute is constitutionally defective by reason of such invidious discrimination against petitioner's representative class (fathers of minor children), and that such invalid portion is otherwise incapable of effective severance without destroying the underlying statutory purpose intended by the Legislature. (Cf. People v. McCaughan (1957) 49 Cal.2d 409, 416, 317 P.2d 974; People v. Lewis (1939) 13 Cal.2d 280, 284, 89 P.2d 388.) Since proceedings based upon an unconstitutional statute are void and ineffectual (see In re Schillaci, supra, 196 Cal.App.2d 591, 595, 16 Cal.Rptr. 757), petitioner is entitled to have the record of his conviction based upon such void judgment expunged upon appropriate motion in the trial court made within 30 days from the filing of remittitur herein. Petitioner having already completed his sentence, the petition is to that extent moot and hence dismissed; the order to show cause herein is discharged.

I concur.

As an original proposition I prefer the reasoning and result of People v. Olague (App.Dept.Sup.Ct.-L.A.1973) 31 Cal.App.3d Supp. 5, 106 Cal.Rptr. 612, to that of Cotton v. Municipal Court (1976) 59 Cal.App.3d 601, 130 Cal.Rptr. 876. (See Califano v. Webster (1977) 430 U.S. 313, 320, 97 S.Ct. 1192, 1196, 51 L.Ed.2d 360, 367, Burger, C. J., concurring; Califano v. Goldfarb (1977) 430 U.S. 199, 231, fn.1, 97 S.Ct. 1021, 1039, 51 L.Ed.2d 270, 292, fn.1, Rehnquist, J., dissenting; and Kahn v. Shevin (1974) 416 U.S. 351, 355, 94 S.Ct. 1734, 40 L.Ed.2d 189.) I recognize, however, that a hearing was denied by our Supreme Court in Cotton; that it would be discriminatory to release Cotton and permit Aguilar's conviction to stand; and that the statute has been amended to correct the allegedly discriminatory provision. There is no point in beating a dead horse. I therefore reluctantly concur.

FOOTNOTES

1.  Before its amendment in 1974 (effective Jan. 1, 1975) Penal Code section 270 provided in pertinent part:“A father of either a legitimate or illegitimate minor child who willfully omits without lawful excuse to furnish necessary clothing, food, shelter or medical attendance or other remedial care for his child is guilty of a misdemeanor and punishable by a fine not exceeding one thousand dollars ($1,000) or by imprisonment in a county jail not exceeding one year, or by both such fine and imprisonment. . . . This statute shall not be construed so as to relieve such father from the criminal liability defined herein for such omission merely because the mother of such child is legally entitled to the custody of such child nor because the mother of such child, or any other person, or organization, voluntarily or involuntarily furnishes such necessary food, clothing, shelter or medical attendance or other remedial care for such child, or undertakes to do so.“In the event that the father of either a legitimate or illegitimate minor child is dead or for any other reason whatsoever fails to furnish the necessary food, clothing, shelter or medical attendance or other remedial care for his minor child, the mother of said child shall become subject to the provisions of this section and be criminally liable for the support of said minor child during the period of failure on the part of the father to the same extent and in the same manner as the father.”

2.  Preliminarily, we observe that petitioner has since completed his one-year sentence. That circumstance alone does not, however, render these proceedings moot and he may still challenge the legality of his underlying conviction. (Carafas v. LaVallee (1968) 391 U.S. 234, 240, 88 S.Ct. 1556, 20 L.Ed.2d 554; cf. People v. Succop (1967) 67 Cal.2d 785, 790, 63 Cal.Rptr. 569, 433 P.2d 473, cert. den. 390 U.S. 983, 88 S.Ct. 1104, 19 L.Ed.2d 1281; In re Byrnes (1945) 26 Cal.2d 824, 828, 161 P.2d 376; In re J. F. (1969) 268 Cal.App.2d 761, 768, fn.7, 74 Cal.Rptr. 464.)

3.  We recognize that the 1974 amendments to section 270 now achieve this equality between parents. Section 270 now provides in relevant part as follows: “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 . . ..” (Emphasis added.) (Stats.1974, ch. 893, s 1, p. 1892.) (See Cotton v. Municipal Court, supra, 59 Cal.App.3d 601, 607, 130 Cal.Rptr. 876, recounting significance of current language with former language of the section which applied uniformly to parents until amended in 1923 to impose primary responsibility on the father alone.)

FOOTNOTE.  

RACANELLI, Presiding Justice.

ELKINGTON, J., concurs.