180 Cal.App.3d 649, G003512, In re Feiock

Docket Nº:G003512
Citation:180 Cal.App.3d 649, 225 Cal.Rptr. 748
Opinion Judge:[10] Wallin
Party Name:In re Feiock
Attorney:[6] Ronald Y. Butler, Public Defender, Frank Scanlon, Assistant Public Defender, Richard Aronson, Richard Schwartzberg and Mark Licker, Deputy Public Defenders, for Petitioner. [7] No appearance for Respondent. [8] Cecil Hicks, District Attorney, Michael R. Capizzi, Assistant District Attorney, W...
Case Date:April 30, 1986
Court:California Court of Appeals

Page 649

180 Cal.App.3d 649

225 Cal.Rptr. 748

In re Phillip William FEIOCK, on Habeas Corpus.


California Court of Appeal, Fourth District, Third Division

April 30, 1986.

Review Denied Aug. 14, 1986.

Page 650

[Copyrighted Material Omitted]

Page 651

Ronald Y. Butler, Public Defender, Frank Scanlon, Asst. Public Defender, Richard Aronson, Richard Schwartzberg and Mark Licker, Deputy Public Defenders, for petitioner.

No appearance for respondent.

Cecil Hicks, Dist. Atty., Michael R. Capizzi, Asst. Dist. Atty., William W. Bedsworth and E. Thomas Dunn, Jr., Deputy Dist. Attys., for real party in interest.


WALLIN, Associate Justice.

Phillip Feiock seeks relief from a judgment of contempt for failure to pay child support. His primary contention concerns the constitutionality of Code of Civil Procedure section 1209.5, which requires the court presume prima facie evidence of contempt after proof of noncompliance with a valid court order.

* * *

Feiock was ordered to pay child support for his three children as part of a dissolution action. Thereafter, in 1983 the District Attorney filed an action under the Uniform Reciprocal Enforcement of Support Act, which resulted in a temporary support order of $150 per month. Feiock's failure to pay anything between September of 1984 and February of 1985 resulted in a contempt action brought by the District Attorney.

Page 652

At the adjudicated contempt hearing, the parties stipulated there was a valid court order requiring Feiock to pay $150 per month directly to the District Attorney's office. They also agreed Feiock was present in court when the order was made. The prosecution then offered documentary evidence from its own internal records showing Feiock's poor payment history. The trial judge suggested those records needed some explanation; an employee familiar with the record-keeping procedures testified at the judge's request. Feiock's motion for judgment of acquittal under Penal Code section 1118 was denied after the judge ruled the presumption mandated by Code of Civil Procedure section 1209.5 applied. Feiock then testified, essentially trying to prove his inability to pay the court-ordered support. Regardless, the trial judge sustained the majority of the contempt allegations.

Code of Civil Procedure section 1209.5 provides: "When a court of competent jurisdiction makes an order compelling a parent to furnish support or necessary food, clothing, shelter, medical attendance, or other remedial care for his child, proof that such order was made, filed, and served on the parent or proof that the parent was present in court at the time the order was pronounced and proof of noncompliance therewith shall be prima facie evidence of a contempt of court."

Feiock asserts Code of Civil Procedure section 1209.5 is unconstitutional because it is a mandatory presumption which shifts the burden of proof to the defendant, requiring him to prove his innocence. Our Supreme Court recently discussed the problems raised by the use of presumptions in criminal cases in People v. Roder (1983) 33 Cal.3d 491, 189 Cal.Rptr. 501. The Court found Penal Code section 496 prescribed an unconstitutional mandatory presumption because it relieved the prosecution from proving every element of the offense beyond a...

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