People v. Johnson

California Court of Appeal Feb 7, 1968 No. Crim. 2628Published

Before: Coughlin

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Holding. The court reversed the defendant's felony conviction because the jury instructions failed to include all essential elements of the crime and improperly relied on an unconstitutional statutory presumption. The court also held that the trial court erred by failing to instruct the jury on the lesser included misdemeanor offense.

Issues

Whether the jury instructions for the felony offense of failure to provide for minor children while out of state were legally sufficient.
Whether the statutory presumption that a father who fails to provide for 30 days is outside the state violates due process.
Whether the trial court erred in failing to instruct the jury on the lesser included offense of failure to provide for minor children.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“This provision, in effect, declares a father who omits to provide for his children for more than 30 days is presumed to be outside the State of California during such omission; violates due process; and is unconstitutional.”

“The rule is settled that a presumption of one fact from evidence of another is violative of due process if there is no rational connection between the fact proved and the fact presumed.”

COUGHLIN, J.

Defendant appeals from a conviction of the felonious offense of failure to provide for his minor children and remaining out of the State of California for a period in excess of 30 days during such failure, a violation of Penal Code, section 270.

The grounds for appeal are set forth in briefs filed by defendant in propria persona; are many and varied; and, in most part, are ridiculous and frivolous.

Defendant represented himself on the appeal until this court appointed counsel to act on his behalf. In a letter from defendant to counsel the former acknowledged the “valuable service” rendered by the latter in “researching” the case, but stated 1 ‘ I insist to such extent as I may do so that no further briefs be filed in this matter. ’ ’

Our review of the record compels a reversal upon grounds not considered by either side.

The information charged defendant with failing to provide for his minor children from June 15, 1963 to September 4, 1964, and also charged “defendant continuously between the 16th day of October 1963, and the 27th day of July 1964, has been out of the State of California, a period in excess of thirty (30) days, and during all of said period of time said defendant has failed and neglected to provide for his said minor children.” Contrary to defendant’s contention the in

[708]

formation properly charged him with the commission of a felony.

Defendant’s wife testified he separated from her and his children on June 15, 1963; between that date and July 21, 1964, defendant did not provide for the support and maintenance of his children in any manner whatsoever; and she did 'not see him between August 29,1963 and August 26,1964.

The foregoing establishes defendant committed the misdemeanor offense of wilful failure, without lawful excuse, to pro-wide .for. the support and maintenance of his minor children. Defendant did not testify.

.• Among other things, Penal Code, section 270 provides: 1 ‘ Proof of abandonment or desertion of a child by such father, or the omission by such father to furnish necessary food, 'clothing, shelter or medical attendance or other remedial care for his child is prima facie evidence that such abandonment or desertion or omission to furnish necessary food, clothing, shelter or medical attendance or other remedial care is wilful and without lawful excuse. ’ ’

People v. Johnson

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COUGHLIN, J.

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