King, In re

• Decision Date: 02 October 1970
• Docket Number: Cr. 14130
• Citation: 474 P.2d 983,3 Cal.3d 226,90 Cal.Rptr. 15
• Court: California Supreme Court
• Parties: , 474 P.2d 983 In re Clennon Washington KING on Habeas Corpus.

Page 15

90 Cal.Rptr. 15

3 Cal.3d 226, 474 P.2d 983

In re Clennon Washington KING on Habeas Corpus.

Cr. 14130.

Supreme Court of California,

In Bank.

Oct. 2, 1970.

Rehearing Denied Oct. 28, 1970.

Heisler & Stewart, Francis Heisler, Carmel, Peter Haberfeld, Marysville, and C. B. King, San Francisco, for petitioner.

Oscar Williams and Charles Stephen Ralston, San Francisco, as amici curiae.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Mark Leicester, Deputy Atty. Gen., for respondent.

TOBRINER, Justice.

On February 7, 1967, after a nonjury trial, petitioner Clennon Washington King was convicted of failure to support his children in violation of Penal Code section 270. ¹ Based on petitioner's absence from the state for 30 days, the offense was adjudged a felony. In this habeas cropus proceeding, petitioner attacks the constitutionality of the felony provision of section 270. ² We hold that insofar as the section punishes nonsupporting fathers who 'remains out of the state for 30 days' more heavily than nonsupporting fathers who are within California, this penal provision establishes a classification not sufficiently related to any legitimate govern mental objective, and as such violates the equal protection clause of our Constitution.

Petitioner, a school teacher and minister, spent his childhood, received his education, and was married in the South. Although petitioner held teaching credentials and had earned an advanced academic degree, he experienced difficulty in finding employment, apparently because he had been active in the early phase of the civil rights movement and had become a controversial figure. In December 1958, petitioner, his wife, and their five children moved to California, and purchased a home in Compton. After initiating procedures to obtain a California teaching credential (a process that was to take several months), petitioner obtained part-time employment in the post office and as a porter in a Beverly Hills department store. He began to build a congregation in a San Pedro church to which he had been appointed pastor, and, also, undertook the publication of a religious newsletter. His earnings were not sufficient to enable the family to retain the home they were purchasing, however, and it became necessary to give up the house, apply for public assistance, and move into public housing. The King's sixth child was born in July 1959.

In November 1959 petitioner moved his family to Rosarita Beach in Mexico in the belief that his missionary activities, which then consisted primarily of publishing the newsletter, could be carried on more economically in Mexico. At the trial, petitioner testified that after learning that it was not possible formally to establish a permanent residence in Mexico at Tijuana, the nearest large city, he left his family on December 5, 1959, to go to Mexico City. He expected to be absent only a few days and left $50 with his wife for food and other necessities.

Mrs. King testified at trial that she was unaware of her husband's destination or plans and, thus, two days after his departure, on December 5, 1959, she left Rosarita Beach with her children and traveled to San Diego where she applied for, and received, public assistance. Mrs. King thereafter obtained employment as a licensed vocational nurse, but the family continued to receive public assistance to supplement her earnings. Petitioner contributed nothing to the support of the family after he left Rosarita Beach.

When petitioner learned that his wife and children had returned to the United States and were in San Diego, he attempted to contact them by letter. He did not follow them to San Diego, however, but instead traveled to Albany, Georgia, where he acquired a house, a store-front office, and a congregation, and repeatedly urged his wife and children to join him there. He sent letters, telephoned, and, finally, in July 1960, went to San Diego in an attempt to persuade his family to rejoin him, but Mrs. King and the children chose to remain in California.

California authorities then instituted nonsupport proceedings against petitioner, apparently under the Uniform Reciprocal Enforcement of Support Act, ³ and later sought petitioner's extradition for violation of Penal Code section 270. Several years thereafter, in 1966, King surrendered to authorities in Chicago, Illinois, waived extradition and was returned to California for criminal prosecution.

In California petitioner was charged by information with failure to support his children from July 1, 1960, through June 1, 1966, and with being absent from the State from July 10, 1960, through June 1, 1966, in violation of section 270 of the Penal Code. After a non-jury trial the court found King guilty of the charged felony. Although the trial court did not specifically find that petitioner had been out of the state for a 30-day period, the court, in rendering its judgment, fully reviewed petitioner's testimony regarding his activities since 1960. The testimony clearly established that King had been absent from the state for more than the statutory period. Under these circumstances the finding of defendant's absence from the state for the requisite period of time, implicit in the judgment of conviction, quite obviously rested on King's own testimony and not on the statutory presumption of absence. ⁴

Petitioner attacks his felony conviction on the ground that the felony provision of section 270 violates constitutional strictures of equal protection. He argues that in punishing a father who 'remains out of the state' more severely than a father remaining within the state, the provision establishes a classification not sufficiently related to any legitimate governmental purpose and effectively undertakes an impermissible, invidious discrimination against non-California residents. For the reasons discussed below, we conclude that the felony provision of section 270 must succumb to the constitutional attack mounted by petitioner.

It is basic that the guarantees of equal protection embodied in the Fourteenth Amendment to the United States Constitution and article I, sections 11 and 21, of the California Constitution, prohibit the state from arbitrarily discriminating among persons subject to its jurisdiction. This principle, of course, does not preclude the state from drawing any distinctions between different groups of individuals, but does require that, at a minimum, classifications which are created bear a rational relationship to a legitimate public purpose. (Rinaldi v. Yeager (1966) 384 U.S. 305, 308--309, 86 S.Ct. 1497, 16 L.Ed.2d 577; Baxstrom v. Herold (1966) 383 U.S. 107, 111, 86 S.Ct. 760, 15 L.Ed.2d 620; Blumenthal v. Board of Medical Examiners (1962) 57 Cal.2d 228, 233, 18 Cal.Rptr. 501, 368 P.2d 101.) Moreover, 'in cases involving 'suspect classifications' or touching on 'fundamental interests' * * * the state bears the burden of establishing not only that it has a Compelling interest which justifies the law but that the distinctions drawn by the law are Necessary to further its purpose.' (Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784--785, 87 Cal.Rptr. 839, 842--843, 471 P.2d 487, 500--501; see Shapiro v. Thompson (1969) 394 U.S. 618, 638, 89 S.Ct. 1322, 22 L.Ed.2d 600; Sherbert v. Verner (1963) 374 U.S. 398, 406, 83 S.Ct. 1790, 10 L.Ed.2d 965. See generally Developments in the Law-Equal Protection (1969) 82 Harv.L.Rev. 1064, 1120--1131.)

Section 270 of the Penal Code, in prescribing varying penalties for its violation, distinguishes between two 'categories' or 'classifications' of nonsupporting fathers--(1) those nonsupporting fathers who 'remain out of the state' for 30 days and (2) those who do not--and the section singles out those falling within the former classification for more severe punishment. Thus, under the section as presently drafted, any father who 'remains out of the state' of California for 30 days while not supporting his child is guilty of a felony; a father who commits the identical act of criminal nonfeasance, but happens to be within California, is guilty only of a misdemeanor.

The application of this distinction may often lead to what appears to be fortuitous, and even arbitrary, results. Thus, for example, if a father of a family in New York fails to provide support for his children, and his family subsequently moves to San Francisco, the father by remaining in New York for 30 days will be guilty of a felony; a non-supporting father in Los Angeles whose family moves to San Francisco, will, by contrast, only be guilty of a misdemeanor if he remains in Los Angeles. Although the Criminal quality of the New York father's conduct appears to be no different than that of the Los Angeles father, by the terms of section 270 he has committed a much more serious crime and is subjected to harsher penalties.

To justify this seemingly illogical classification the People proffer the two broad objectives which underlie the nonsupport provision generally--(1) to protect public funds from the financial burden of supporting children whose fathers are able to support them and (2) to deter fathers from subjecting their children to the adverse impact of becoming public charges. We can discern no rational relationship, however, between these unquestionably valid general purposes and the distinguishing factor--the Location of a nonsupporting father--upon which the felony-misdemeanor classification turns. As the Court of Appeal pointed out in People v. Jones (1967) 257 Cal.App.2d 235, 64 Cal.Rptr. 622, the nature of the crime of non-support does not vary with the place of its commission: '(d)iscrimination Solely on the basis of location inside or outside of the state bears no more relation to the punitive and deterrent purposes of section 270 than differing locations of nonsupporting fathers within this state.' (Original italics.) (257 Cal.App.2d at pp. 238--239, 64 Cal.Rptr. at p. 624.) As odious as...