People v. Berry

Opinion

HUFFMAN, Acting P. J. Michael Edward Berry was convicted of perjury following a court trial. (Pen. Code, § 118.)1 He appeals, raising the single contention the evidence of his false testimony during a family court proceeding should have been excluded from evidence in his perjury trial because of the failure of the family court to warn Berry at that time of his rights against compelled self-incrimination as established by the Fifth Amendment of the United States Constitution. (See also, Cal. Const., art. I, § 15; Evid. Code, § 940.) Based upon the record before us, we find the family law judge had no duty to warn Berry of such rights at that hearing. We therefore affirm.

Factual and Procedural Background

At an order to show cause hearing re-modification of child support and visitation held February 8, 1988, in a family court proceeding,2 Berry was ordered effective February 1, 1988, to pay child support in the amount of $200 per month to the County of San Diego (the county) by way of wage assignment. A review hearing was set for May 24, 1988.

[1452]On that date, Berry appeared at the hearing and stated to the court he was then employed at the Mervyn’s store in Escondido and that $100 every two weeks was being deducted from his earnings by wage assignment for the ordered child support.3 The court and parties then discussed whether some other type of deduction might have been made from his wages, since the county’s revenue and recovery records did not show any monies had been received pursuant to the wage assignment order. Berry was then placed under oath and repeated the same statements. Other evidence next presented at the family court proceeding demonstrated that Berry’s testimony regarding both his employment and wage assignment was false.

At Berry’s perjury trial (§ 118), the court admitted into evidence the reporter’s transcript of the family court proceedings. We need not further discuss the showing made of the facts of the offense, since Berry has not challenged the sufficiency of the evidence to support his conviction.

Following his conviction Berry was granted probation on various conditions. He has filed a timely notice of appeal.

Discussion

Berry claims his appearance at a family support calendar on an order to show cause created a duty on the part of the court to advise him of his Fifth Amendment rights before he testified. He bases this claim on a contention the family court review hearing should be considered to be the equivalent of a criminal matter, because any testimony he gave which might show noncompliance with the original order might subject him to contempt proceedings. (Code Civ. Proc., § 1209.5.)4 Berry’s argument has no merit.