People v. Olague

31 Cal.App.3d 5 (1973) 106 Cal. Rptr. 612 THE PEOPLE, Plaintiff and Appellant,

v.

PHILLIP OLAGUE, Defendant and Respondent.

Docket No. 11667. Court of Appeals of California, Appellate Department, Superior Court, Los Angeles.

February 21, 1973. [6] COUNSEL

Joseph P. Busch, District Attorney, Harry Wood and Daniel L. Lieberman, Deputy District Attorneys, for Plaintiff and Appellant.

Richard S. Buckley, Public Defender, James L. McCormick, Floyd W. Davis and Lawrence E. Biegel, Deputy Public Defenders, for Defendant and Respondent.

[7] OPINION

HOLMES, J.

The orders of the municipal court sustaining respondent's demurrer and dismissing the action raise only the question of whether the challenged statute is unconstitutional on its face. We address ourselves to that question only.

Section 270 of the Penal Code has been before the appellate courts many times. It is held to have important public objectives for the support of children (In re King (1970) 3 Cal.3d 226, 233 [90 Cal. Rptr. 15, 474 P.2d 983] cert. den. 403 U.S. 931 [29 L.Ed.2d 709, 91 S.Ct. 2249]). The means prescribed under this statute to further its legitimate objectives is for local law enforcement agencies to initiate a judicial inquiry as to the willingness and ability of a father to support his child. The state must first prove that the accused is the father and that the child has been abandoned or deserted by the father or that the father has omitted to supply necessaries of life to the child. If these elements are proved, it then becomes the father's burden to prove that his default was not wilful or without excuse. If he fails to discharge that burden he is criminally liable. If he meets his burden of proof, like proceedings are authorized to be taken against the mother.