City & County of San Francisco v. Givens

• Decision Date: 29 November 2000
• Docket Number: No. A088416.,A088416.
• Citation: 101 Cal.Rptr.2d 859,85 Cal.App.4th 51
• Court: California Court of Appeals Court of Appeals
• Parties: CITY AND COUNTY OF SAN FRANCISCO, Plaintiff and Appellant, v. Dennis L. GIVENS, Defendant and Respondent.

101 Cal.Rptr.2d 859

85 Cal.App.4th 51

CITY AND COUNTY OF SAN FRANCISCO, Plaintiff and Appellant, v. Dennis L. GIVENS, Defendant and Respondent.

No. A088416.

Court of Appeal, First District, Division 4.

November 29, 2000.

Review Denied Feb. 28, 2001.^*

Bill Lockyer, Attorney General, David R. Druliner, Chief Assistant Attorney General, Carol Ann White, Statewide Child Support Coordinator, Mary A. Roth, Deputy Attorney General, for Appellant.

Janet C. Mangini, San Francisco, for Respondent.

SEPULVEDA, J.

"The usual paternity suit involves a man, hereafter referred to as the defendant, who does not wish to be declared the father of the child. Because of the accuracy and statistical significance of modern blood testing, the California Legislature has adopted a statutory presumption of paternity. If the defendant's blood test results in a particular numerical score, he is presumed to be the father. Family Code section 7555 ... provides in relevant part: `(a) There is a rebuttable presumption, affecting the burden of proof, of paternity, if the court finds that the paternity index, as calculated by the experts qualified as examiners of genetic markers, is 100 or greater. This presumption may be rebutted by a preponderance of the evidence.' [¶] ... [¶] The defendant is entitled to introduce other expert testimony. (Fam.Code, § 7557.) Once the statutory presumption is triggered, the court must consider all of the evidence, including any blood test evidence. (Fam.Code, § 7554, subd. (b).)" (County of El Dorado v. Misura (1995) 33 Cal.App.4th 73, 82, 38 Cal. Rptr.2d 908.)¹ One of the ways by which a defendant can rebut the presumption is to present evidence that he did not have access to the mother during the period of conception. (Id. at p. 83, 38 Cal.Rptr.2d 908.)

The City and County of San Francisco (City), which commenced this action to recover Aid to Families with Dependent Children support payments (§§ 17402, 17404), presented expert testimony that defendant's blood yielded a paternity index figure of 1290; according to the expert, this amounted to a "99.92 percent" likelihood of paternity. The defendant here presented what the trial court found to be "clear and convincing evidence" that he did not have access to the mother. The court thereupon entered an order with its finding that there was "no probability" that defendant was the father. The City filed a timely notice of appeal.²

As we see it, there are three issues. The first is the trial court's frank invitation to "the appellate court to tell me ... what role the DNA evidence at such a high index plays, when there is clear and convincing evidence of no access." The second is a number of subtle arguments made by the City which leave the general impression that the trial court misperceived its function, and did not understand the relationship between the "hard" genetic evidence and the "soft" testimonial evidence. Finally, there is the City's claim that the trial court's order is not supported by substantial evidence.

Because the first and second issues share a measure of overlap, we can answer both the trial court's invitation and some of the City's arguments at the same time. Initially, there is absolutely no basis for the City to argue that the trial court "failed to weigh all the evidence" by looking only at the testimony concerning the issue of defendant's access to the mother, thereby ignoring the genetic evidence and the presumption of paternity it supported. The City's argument is based on a single comment made by the trial court when it announced its conclusions at the end of the trial.³ That comment does not recur in the court's written decision and order. The comment is in the nature of a prefatory explanation and cannot be used to impeach or attack the written order. (See Halagan v. Ohanesian (1967) 257 Cal.App.2d 14, 21, 64 Cal.Rptr. 792 and decisions cited.) Moreover, the comment reflects an approach that has the sanction of the definitive precedent on this topic: "[E]xpert testimony cannot supplant evidence of access; expert testimony must be viewed through the lens provided by the soft evidence." (County of El Dorado v. Misura, supra, 33 Cal.App.4th 73, 81, 38 Cal.Rptr.2d 908, italics added.)

The written order clearly exonerates the trial court of the charge that it did not know what it was doing. The order commences with the court stating that "[t]he real issue in this case, as in so many paternity cases, is what the import of a paternity index over 1,000 is in the determination of paternity." The court proceeds to discuss the presumption of section 7555 and the "all of the evidence" language of section 7554 quoted above. The order also tracks the analytical framework of County of El Dorado v. Misura, supra, 33 Cal.App.4th 73, 38 Cal.Rptr.2d 908. It is particularly difficult to discern the ground on which the City argues the trial court gave insufficient heed to the presumption of section 7555. The order corroborates the statutory presumption that the court followed all applicable legal principles (Evid.Code, § 664; Ross v. Superior Court (1977) 19 Cal.3d 899, 913-914, 141 Cal. Rptr. 133, 569 P.2d 727; People v. Stringham (1988) 206 Cal.App.3d 184, 201, 253 Cal.Rptr. 484), particularly as to section 7555 and how it operates, the precise matter dealt with in Misura.

In fact, the court devoted a significant part of its written order recording dissatisfaction with Misura and the desirability "that a higher level of proof be attached to DNA genetic testing than the rebuttable presumption of an index of 100." This was the same point the court had previously made with its oral invitation for guidance concerning the impact of genetic testing evidence when the paternity index reached a figure far in excess of 100. Such guidance is unnecessary—the trial court acted in conformity with sections 7554 and 7555. Any change must come from the Legislature.

The City points out that any genetic evidence pointing to paternity must logically entail an inference of access. But it should be remembered that a presumption is not itself evidence. (Evid.Code, § 600, subd. (a).) Moreover, section 7555 expressly states that its presumption is rebuttable by a preponderance of the evidence and that the presumption is one affecting the burden of proof. It thus calls into play the normal rules governing such presumptions, which in this context would require the defendant to produce evidence that he was not the father. (Evid.Code, § 606.) When the defendant satisfied that burden by producing evidence in the form of his testimony that he did not have access to the mother during the time of conception, evidence which the trial court found to be "clear and convincing," the normal rules of evidence would be satisfied. (Evid.Code, §§ 115, 411.) If the City were to prevail with its claim, an inference implicit in a presumption would be deemed to have greater evidentiary weight than the direct testimony of a witness. Should the City prevail with its argument that the defendant's direct testimony cannot by itself constitute substantial evidence, contrary to the command of Evidence Code section 411, the rebuttable presumption affecting the burden of proof established by section 7555 would have an independent potency more akin to a conclusive presumption. This would stand the plain language of section 7555 on its head.

That plain language clearly contemplates that evidence other than the presumption can be deemed more credible. There is nothing to suggest that the evidentiary heft of the presumption established by section 7555 is increased by a higher number on the paternity index. A similar argument was rejected years ago (County of El Dorado v. Misura, supra, 33 Cal.App.4th 73, 82-83, 38 Cal.Rptr.2d 908 [paternity index of 970]) and we see no reason to reach a different conclusion. If there is evidence other than the presumption, the trial court is to consider all of it. (§ 7554, subd. (b).)⁴ Implicit in such a plenary examination is the chance of the other evidence being deemed more persuasive. Any other conclusion would make the presumption the tail wagging the dog.⁵

The only issue remaining to be addressed is whether the record contains substantial evidence to support the trial court's central finding that the defendant did not have access to the mother during the period of...