Patterson v. Municipal Court

Petition for writ of prohibition (or other

The question before us, then, is whether prohibition lies, or any other remedy, as this court has the power to issue any appropriate remedy even though the wrong remedy be sought (see 3 Witkin, Cal. Procedure (1954) Extraordinary Writs, § 71) to determine not the constitutionality of the statute under which petitioner is being presented or even the evidentiary statute, but whether the latter statute is being unconstitutionally applied. Another way of stating it is, did the court in applying section 270e act “in excess of jurisdiction” as the term is peculiarly applied in this state? Volume 1 Witkin, California Procedure (1954) Jurisdiction, section 126, states that if there is denial of a fair hearing and thus a denial of due process, the act is in excess of jurisdiction. The following statement by Witkin is much in point: “In Moore v. California Minerals Products Corp. (1953) 115 Cal.App.2d 834 [ 252 P.2d 1005 ], though the point was raised on appeal, the jurisdictional nature of the error was stated in the strongest possible language. At the conclusion of opening statements, the trial judge on his own motion summarily (and erroneously) ordered judgment on the pleadings for plaintiff, without allowing defendant to urge the sufficiency of his pleading or to seek the privilege of amendment. In reversing the judgment the court said: ‘ Elementary principles of due process support our conclusion that if, during a trial, the court, sua sponte, unearths a point of law which it deems to be decisive of the cause, the party against whom the decision impends has the same right to be heard before the decision is announced that he has to produce evidence upon the issues of fact. Denial of that opportunity deprived defendant of a substantial right to which it was entitled by virtue of the guarantee of due process. ’ (115 Cal.App. [2d] 837.)”

Of course for prohibition to lie the remedy of appeal must be inadequate.

“In 15 California Jurisprudence at page 114 it is said that ‘judgments in criminal proceedings are generally not competent or conclusive in civil proceedings, and vice versa, not only because ordinarily there is not the necessary identity of parties, but also because the same rules of evidence and degree of proof do not prevail in the two classes or proceedings. ’ To the same effect is the text of 15 Ruling Case Law, page 1004, which declares that ‘It would not be just to convict a defendant by reason of a judgment obtained against him civilly by a mere preponderance of evidence. ’ ” (P. 338.)

Kovacevich gives an additional reason for holding that the judgment in the civil action was not admissible in the criminal action. The court said: “Furthermore, it must, we think, be conceded that the civil action in which appellant was named as the defendant was not brought for the sole purpose of determining the paternity of the child. The issue of paternity was, to be sure, an important and necessary issue in the case. It was not, however, the sole issue, and it may not be declared that the single object sought to be attained thereby was a determination of paternity. On the contrary, the suit was brought for the purpose of compelling appellant to furnish support. It may not, therefore, be successfully maintained that the civil action, whose object was to compel appellant to furnish support to the child, was a proceeding in rem and that the judgment in such action was one which conclusively established the status of paternity. Although the paternity of the child was a fact whose determination was essential to the adjudication of the principal subject matter of the civil action, which was appellant’s obligation to furnish support, the resulting judgment in that action could not be conclusive upon respondent which was not a party thereto.” (Pp. 339-340.)

Kovacevich was decided prior to the amendment of section 270e adding the provision that the establishment of paternity in another proceeding is admissible as evidence of paternity, the addition of which makes inapplicable the reasoning in the last quoted paragraph of Kovacevieh.

In People v. Crawford (1962) 205 Cal.App.2d Supp. 858 [ 23 Cal.Rptr. 566 ], the defendant was prosecuted for failing to provide for two minor children of an unwed mother. Pertinent here is the following, “A man’s neglect of a child raises no presumption that he is guilty of violating the section. [§ 270], Proof, beyond a reasonable doubt, that the neglected child is his, is required to make out a ease. ...” (Pp. 861-862.)

In People v. Grant (1963) 212 Cal.App.2d Supp. 947 [ 28 Cal.Rptr. 694 ], the appellate department of the superior court in determining the question of quantum of proof in a prosecution of the father of an illegitimate child for violation of section 270 seems to differentiate between the situation where the defendant is charged with being the father of an illegitimate child and one where he is charged with being the father of a child born in wedlock. The court said: ‘ ‘ The important question here involved is: Did the court err in instructing the jury that, ‘. . . it is only necessary to prove the facts [of paternity] by a preponderance of the evidence’? Appellant claims that in this, as in other criminal eases, the facts must be proved beyond a reasonable doubt. The law is that when the defendant is charged with failing to provide for an illegitimate child, the facts must be proved beyond a reasonable doubt. People v. Kovacevich (1937) 19 Cal.App.2d 335 [ 65 P.2d 807 ]; People v. Crawford (1962) 205 Cal.App.2d Supp. 858 [ 23 Cal.Rptr. 566 ]. The court, doubtless, relied on Penal Code section 270e which provides in part: ‘No other evidence shall be required to prove . . . that a person is the lawful father ... of a child or children, than is or shall be required

We deem it unnecessary to determine whether as held in Grant that section 270e applied only to the father of a child born in wedlock and not to the father of an illegitimate child, for the reason that defendant in the case at bench is charged with being the father of a child born during wedlock and hence under any interpretation of section 270e is a “lawful father. ’ ’

So far as the first sentence of section 270e is concerned, it in nowise obviates the requirement that defendant’s guilt of the crime defined in section 270 must be proved beyond a reasonable doubt. It in effect provides for a prima facie finding of paternity by such evidence as would be sufficient to determine paternity in a civil action; but, nevertheless, when the ease is submitted to the jury, that body can only convict if it finds beyond a reasonable doubt that defendant is the father of the child and has failed to support it. The first sentence of section 270e provides a situation similar to proof of venue, design, motive and the like which have been held do not require proof beyond a reasonable doubt to make a prima facie case, but nevertheless, the guilt of the defendant in such case must be proved beyond a reasonable doubt. (See 9 Wigmore on Evidence, § 2497, p. 324, note 7.)

“It is not the law, as proposed in one of defendants’ rejected instructions, that each fact in a chain of circumstances that will establish a defendant’s guilt must be proved beyond a reasonable doubt. (People v. Nunn, 65 Cal.App.2d 188 , 195 [ 150 P.2d 476 ]; People v. Parker, 119 Cal.App. 246 . 251-2 [ 6 P.2d 82 ].) The doctrine of reasonable doubt applies to proof of guilt and not to the establishment of each incident or event inculpating the defendant.” (People v. Klinkenberg (1949) 90 Cal.App.2d 608 , 632 [ 204 P.2d 47 , 613].)

In criticizing a statement in a refused instruction which stated that “. . . each fact which is essential to complete a chain of circumstances that will establish the defendant’s

In State v. Fitzsimmons (1952) 137 W.Va. 585 [ 73 S.E.2d 136 ] a prosecution for nonsupport of an illegitimate child, the verdict was reversed because the jury was instructed that the defendant’s guilt could be proved by a preponderance of the evidence. The court pointed out that under a code provision the question of parentage could be established by a preponderance of the evidence, but that as to all other essentials the proof of guilt must convince beyond any reasonable doubt. (P. 139.)

In State v. Kessinger (1959) 144 W.Va. 209 [ 107 S.E.2d 367 ] the jury was likewise instructed that it could convict the defendant of failure to support his child by a preponderance of the evidence. The court referred to the code section which provided that paternity might be determined by a preponderance of the evidence, pointed out that the defendant had admitted the paternity of the child, but reversed a guilty verdict because of the instruction which would have allowed a determination of the defendant’s guilt of the other elements of the charge by a mere preponderance of the evidence.

Stanley v. People (1902) 104 Ill.App. 294 was a prosecution for wife abandonment. An Illinois statute provided that in such a ease the marriage need be proved by no other evidence than would be required to prove it in a civil action. The conviction was reversed because of an instruction given concerning proof of common law marriage. The court held that every material element in the indictment must be proved

We have found no case and have been cited to none which holds that a judgment in a civil action may be applied as collateral estoppel in a criminal ease. In Yates v. United States (1956) 354 U.S. 298 [ 77 S.Ct. 1064 , 1 L.Ed.2d 1356 ] the court made a statement by way of dicta from which respondent claims comfort. There the petitioner asserted that the determinations against the government of the court in a prior civil case (a denaturalization proceeding) were conclusive in the criminal proceeding against him for violation of the Smith Act under the doctrine of res judicata. The court held that the determinations in the civil court could not operate as a bar because the issues were not the same.

The court, however, stated: “The doctrine of collateral estoppel is not made inapplicable by the fact that this is a criminal ease, whereas the prior proceedings were civil in character.” (P. 335.) In Yates, the doctrine was being considered in favor of the defendants. The court assumed without deciding that the burden of proof in the prior denaturalization case was the same as in the criminal case. This assumption and the language quoted would not justify a conclusion that a civil judgment in a ease where the burden of proof was less than that required in a criminal case could be used as collateral estoppel against the defendant in such case. It is easy to understand that collateral estoppel by a judgment in a civil proceeding would exist in favor of a defendant in a

It should be pointed out that in United States v. Oppenheimer (1916) 242 U.S. 85 [ 37 S.Ct. 68 , 61 L.Ed. 161 , 3 A.L.R. 516 ], relied upon in Yates, the prior judgment being considered by the court was obtained in a criminal proceeding and not in a civil proceeding.

Respondent contends that the burden of proof in the divorce action on the issue of paternity was identical with that on the same issue here. This contention rests upon the fact that in both proceedings the moment it is shown that the child was born in wedlock, the presumption arises that the husband of the mother is the father of the child. Hence, says respondent, a prima facie ease being established in either proceeding, the burden of going forward with the evidence would shift to the defendant. Then the defendant having failed in the civil proceeding to meet that burden, the fact that paternity was there proved only by a preponderance of the evidence while the People in the criminal proceeding have to prove it beyond a reasonable doubt, becomes immaterial. Respondent contends that it is defendant’s failure to overcome the prima facie showing of paternity in the divorce action made by the presumption, which makes the decree res judicata here.

This is an ingenious theory. However, if it were a valid one, it would mean that any judgment in a civil action upon an issue material in a criminal action would be res judicata in the latter, regardless of whether the burden of proving a prima facie case in the civil action was met by a disputable presumption or by proof other than by a presumption. (See Witkin, Cal. Evidence, § 54.) In either situation the burden of going forward with the evidence in the civil action would shift to the defendant. A disputable presumption is merely a form of evidence and does not make a judgment based upon it more effective than one based upon evidence other than a presumption. The main answer to respondent’s contention is that to make a judgment in a civil action conclusive of a material issue in a criminal action would deny the defendant in the latter of due process in that his guilt of a crime would not be proved beyond a reasonable doubt.

Cases like People v. Beltran (1949) 94 Cal.App.2d 197 ,

With the interpretation we have given section 270e or its application, it cannot be held to be unconstitutional.

The holding in Kovaeevich, supra, to the effect that paternity must be proved beyond a reasonable doubt, does not prevent the interpretation we have given section 270e. Although section 27Oe, except as to the last sentence thereof, was in effect at the time of Kovaeevich, that case did not discuss or consider it. With the addition to the section of the last sentence and the requirement that the guilt of the defendant in a proceeding to which 270e is applicable must be determined beyond a reasonable doubt, we find no conflict with Kovaeevich.

The People claim that the stipulation signed by the defendant is binding upon the parties, citing Palmer v. City of Long Beach (1948) 33 Cal.2d 134 , 141 [ 199 P.2d 952 ]. Unfortunately, the stipulation was not brought up as an exhibit, so we do not know exactly what it contained but from the supplemental opposition it appears that petitioner stipulated only that the child was born after he married, and that there was a divorce action in which it was alleged and the court found that there was one child of the marriage. This cannot be taken to mean that defendant stipulated that the child is his.

When this case is tried the interlocutory decree of divorce may be admitted as evidence. However, the issue of paternity must be given the jury, defendant must be given full opportunity to meet the evidence and presumptions we have discussed and in order to find him guilty the jury must find him so beyond a reasonable doubt.

Let a writ issue prohibiting the trial court at the trial from taking from the jury the issue of paternity and from instructing that the interlocutory decree of divorce is res judicata on such issue.

Sullivan, P. J., and Molinari, J., concurred.