People v. Barksdale

• Decision Date: 22 July 1971
• Docket Number: Cr. 9526
• Citation: 18 Cal.App.3d 813,96 Cal.Rptr. 265
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Robert W. BARKSDALE, Defendant and Respondent.

Page 265

96 Cal.Rptr. 265

18 Cal.App.3d 813

PEOPLE of the State of California, Plaintiff and Appellant, v. Robert W. BARKSDALE, Defendant and Respondent.

Cr. 9526.

Court of Appeal, First District, Division 1, California.

July 22, 1971.

Rehearing Denied Aug. 13, 1971.

For Opinion on Hearing, see 105 Cal.Rptr. 1, 503 P.2d 257.

Evelle J. Younger, Atty. Gen., Edward P. O'Brien, Charles R. B. Kirk, Deputy Attys. Gen., San Francisco, for plaintiff and appellant.

Mintz, Giller, Himmelman & Mintz, by Herman W. Mintz, Morton B. Goldstein, Oakland, for defendant and respondent.

The James Madison Constitutional Institute, Inc., amicus curiae.

Roy Lucas, New York, Barbara Ashley Phillips, San Franciso, amicus curiac for appellant.

ELKINGTON, Associate Justice.

Defendant Robert W. Barksdale was charged by a complaint in the Municipal Court of the San Leandro-Hayward Judicial District, with a violation of Penal Code section 274, as amended in 1967, which states:

'Every person who provides, supplies, or administers to any woman, or procures any woman to take any medicine, drug, or substance, or uses or employs any instrument or other means whatever, which intent thereby to procure the miscarriage of such woman, except as provided in the Therapeutic Abortion Act, Chapter 11 (commencing with Section 25950) of Division 20 of the Health & Safety Code, is punishable by imprisonment in the state prison not less than two nor more than five years.'

The Therapeutic Act, q. v., was enacted in 1967. It provides that a licensed physician and surgeon is authorized to perform an abortion in 'a hospital which is accredited by the Joint Commission on Accreditation of Hospitals' (Health & Saf. Code, § 25951, subd. (a)), if such abortion is approved in advance by a committee of the hospital's medical staff under certain prescribed conditions (§ 25951, subd. (b)), and the committee finds that one or more of the following conditions exist: '(1) There is substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother; (2) the pregnancy resulted from rape or incest' (§ 25951, subd. (c)). On the grounds of statutory rape (Pen.Code, § 261, subd. 1) an abortion may be approved only if the girl is under the age of 15 years (§ 25952, subd. (c)). 'The committee * * * must, in all instances, consist of not less than two licensed physicians and surgeons, and if the proposed termination of pregnancy will occur after the 13th week of pregnancy, the committee must consist of at least three such licensed physicians and surgeons. * * *' (§ 25953.) The act further provides that an abortion shall not be approved after the 20th week of pregnancy. (§ 25953.)

Prior to any preliminary examination, defendant generally demurred to the complaint, urging that Penal Code section 274, being violative of the Constitution of the United States, failed to state a public offense. The municipal court, stating--'The court can find no compelling interest of the state, and concludes that the right to choose to bear or not to bear children is a fundamental right of the individual woman to be exercised in any manner she chooses and which may not in any way be abridged by the law'--sustained demurrer and thereafter dismissed the complaint.

The People appealed the judgment of dismissal to the Alameda County Superior Court. (See Pen.Code, § 1466.) That court reversed, but certified 'that the transfer of [the] case to the Court of Appeal appears necessary to secure uniformity of decision or to settle important questions of law.' (See Cal.Rules of Court, rules 63 and 64.) We thereupon ordered the cause transferred to this court for hearing and decision.

The parties have chosen to concede in their briefs and oral argument, and at least for the purposes of this appeal, (1) that the charged abortion was performed during the first trimester (13 weeks) of the woman's pregnancy, (2) by a 'licensed physician and surgeon,' (3) but not in 'a hospital which is accredited by the Joint Commission on Accreditation of Hospitals,' or in any hospital.

Defendant's primary contention is stated in this manner: 'California Penal Code section 274, beyond requiring that abortions must be performed by medical doctors under medically competent procedures, may not prohibit a woman from aborting her first trimester embryo or fetus.' More specifically it is urged that the right of a woman to abort an early pregnancy is essentially one of the 'penumbral' rights created by the first, Third, Fourth, Fifth and Ninth Amendments, 'the right of privacy,' as described and given effect in Griswold v. Connecticut, 381 U.S. 479, 484-485, 85 S.Ct. 1678, 14 L.Ed.2d 510.

Principal reliance is placed by defendant upon certain dicta of People v. Belous (1969) 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194, which considered the constitutionality of Penal Code section 274, as in effect prior to its 1967 amendment. The earlier statute provided: 'Every person who provides, supplies, or administers to any woman, or procures any woman to take any medicine, drug, or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the State prison not less than two nor more than five years.' (Emphasis added.)

In Belous the California Supreme Court, divided 4 to 3, concluded that the pre-1967 section 274 was constitutionally invalid, for the reason that its language permitting an abortion only when 'necessary to preserve [the woman's] life,' was unconstitutionally 'vague and uncertain.' The court went no further in its actual holding.

We shall first discuss the effect to be given dicta of California's Supreme Court by the lesser courts of the state.

Dicta, of course, consists of things said in an opinion that are not necessary in reaching the decision of the court. (See Childers v. Childers, 74 Cal.App.2d 56, 61-62, 168 P.2d 218.) It is held that such 'statements of conclusions not necessary to the decision are not to be regarded as authority. * * *' (Cox v. Tyrone Power Enterprises, 49 Cal.App.2d 383, 397, 121 P.2d 829, 837; see also People v. McAllister, 15 Cal.2d 519, 523, 102 P.2d 1072; Hills v. Superior Court, 207 Cal. 666, 670, 279 P. 805.)

Nevertheless, it has been pointed out that the real criticism of dicta 'goes to those portions of an opinion which assume to determine matters outside the issues, and hence [are] not fully discussed and considered. * * *' (Estate of Wever, 12 Cal.App.2d 237, 239, 55 P.2d 279, 280.) Where a point, although dictum, is 'quite elaborately considered' (Adams v. Seaman, 82 Cal. 636, 639, 23 P. 53), or given 'full consideration' (Lossman v. City of Stockton, 6 Cal.App.2d 324, 330, 44 P.2d 397), it will be given respectful consideration by another reviewing court. (See also San Joaquin etc. Irr. Co. v. Stanislaus, 155 Cal. 21, 28, 99 P. 365; Granger v. Sherriff, 133 Cal. 416, 417, 65 P. 873; Paley v. Superior Court, 137 Cal.App.2d 450, 460, 290 P.2d 617; Donnell v. Linforth, 11 Cal.App.2d 25, 29, 52 P.2d 937.) When the dicta is that of our state's Supreme Court this rule must be particularly applicable to its Court of Appeal.

The respect which must be shown such considered comment of the California Supreme Court was elaborated by the United States Supreme Court in Nolan v. Transocean Air Lines, 365 U.S. 293, 295, 81 S.Ct. 555, 557, 5 L.Ed.2d 571. There the court found 'considered [relevant] dictum' in the case of Leeper v. Beltrami, 53 Cal.2d 195, 1 Cal.Rptr. 12, 347 P.2d 12. It was said: 'Inasmuch as the view expressed therein by the highest court of California may be decisive of an issue critical to petitioners' claims, and inasmuch as the Court of Appeals for the Second Circuit is charged with mandatory appellate review in the present case, that court should decide what relative weights, as authoritative sources for ascertaining California law, the New York Court of Appeals would accord to the Sears-Haro line [Sears v. Majors, 104 Cal.App. 60, 285 P. 321; Haro v. Southern P. R. Co., 17 Cal.App.2d 594, 62 P.2d 441] (direct holdings of District Courts of Appeal between 1930 and 1938) and to Leeper (a considered, relevant dictum of general scope by the California Supreme Court in 1959). We set aside the judgment of the Court of Appeals and remand to that court for reconsideration of the case in light of the new factor introduced by Leeper v. Beltrami, supra.'

The California Supreme Court in People v. Belous, supra, 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194, was of course speaking in the context of a law generally denying a woman's right to an abortion. It was said (p. 963, 80 Cal.Rptr. p. 359, 458 P.2d p. 199): 'The fundamental right of the woman to choose whether to bear children follows from the Supreme Court's and this court's repeated acknowledgment of a 'right of privacy' or 'liberty' in matters related to marriage, family, and sex.' ¹ And speaking of the right of a woman to choose whether to bear children, the court stated (p. 964, 80 Cal.Rptr. p. 360, 458 P.2d p. 200), 'It is not surprising that none of the parties who have filed briefs in this case have disputed the existence of this fundamental right.'

The court continued (p. 964, 80 Cal.Rptr. p. 360, 458 P.2d p. 200): 'The critical issue is not whether such rights exist, but whether the state has a compelling interest in the regulation of a subject which is within the police powers of the state * * *, whether the regulation is 'necessary * * * to the accomplishment of a permissible state policy' * * *, and whether legislation impinging on constitutionally protected areas is narrowly drawn and not of 'unlimited and indiscriminate sweep' * * *.' ²

The Belous court then proceeded to discuss the several suggested 'compelling' state interests in the suppression of abortions.

First considered was the unquestioned...