People v. Majado

BARNARD, P. J.

The defendant was found guilty, under section 270 of the Penal Code, of failure to' provide for a minor child. He was sentenced to two years in a county industrial road camp, which was suspended on condition that he pay $12.50 per month for the support of the child, and this appeal followed.

The only question raised is whether the court erred in admitting in evidence the record of appellant’s former conviction of a similar offense in connection with the- same child, and in sustaining an objection to the appellant’s offer to deny that he was the father of the child. It appears that the appellant was on March 8, 1935, convicted on a charge of failing to provide for this child and that he was granted probation on condition that he pay the sum of $15 per month. He complied with the terms of his probation during its two-year period and was then permitted to change his plea, under the provisions of section 1203.4 of the Penal Code, and the information was dismissed. Immediately thereafter he ceased to make payments for the support of the child and this proceeding was instituted. At the trial the complete record of the former ease was admitted in evidence over the objection of the appellant. It was stipulated that the mother of the child would testify that the appellant is the father. The appellant offered to testify that he was not the father of the •child and an objection thereto was sustained.

The real question presented is whether a conviction and judgment on a charge of failing to provide for an illegitimate child is conclusive on the issue of parentage and prevents the defendant from having the same issue retried in a subsequent prosecution on a similar charge in the same court and between the same parties, when the information in the first action has been dismissed after satisfactory completion of probation.

It is respondent’s position that conviction in the first action judicially determined this issue of parentage and that the judgment therein is conclusive on that issue in this action.

[325]

The appellant concedes that this judgment would have been conclusive here if that proceeding had not been dismissed, but argues that the dismissal wiped out the prior conviction and judgment, that the same cannot be considered for any purpose except as a “prior” in ease of a subsequent conviction of a felony, and that this case involves neither a felony nor the habitual criminal statutes. The solution of the question depends upon the meaning and effect of section 1203.4 of the Penal Code, which provides for a change of plea and dismissal of the accusation after the satisfactory completion of a period of probation. That section then provides that the defendant in such an action “shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted”. The concluding portion of the section reads as follows: “provided, that in any subsequent prosecution of such defendant for any other offense such prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed”.