People v. Gruntz
| Decision Date | 19 October 1994 |
| Docket Number | No. B078914,B078914 |
| Citation | 29 Cal.App.4th 412,35 Cal.Rptr.2d 55 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Robert GRUNTZ, Defendant and Appellant. |
Gil Garcetti, Dist. Atty., Patrick D. Moran, Eugene D. Tavris and Brent Riggs, Deputy Dist. Attys., for plaintiff and respondent.
Robert Gruntz appeals from the judgment entered following a jury trial in which he was convicted of the misdemeanor of failing to provide for his two minor children (Pen.Code, § 270). He was sentenced to 360 days in county jail. He appealed to the superior court, which affirmed the judgment in an opinion filed September 1, 1993, which was certified for partial publication. We ordered the matter transferred to this court pursuant to rule 62 of the California Rules of Court on October 19, 1993.
As set forth below, we affirm the judgment of the municipal court.
Appellant and Susannah Gruntz were married in 1974. They had a boy, B. in 1974 and a girl, M. in 1976. Susannah and appellant separated and were divorced in 1978. Susannah received custody of the children and appellant was ordered to pay $300 month in child support. Appellant initially began making payments as ordered, but shortly thereafter, fell behind. By October 1988, he was in arrears $5,100.
Appellant was employed as a parimutuel clerk for the Los Alamitos race track, trained horses and had also completed law school. In October 1988, he filed a voluntary petition for relief under chapter 13 of title 11, United States Code, hereinafter Bankruptcy Code (11 U.S.C. §§ 1301, et seq.). 1 In his statement of assets and liabilities, appellant listed his child support obligations and also listed the past-due support obligations of $5,100. Appellant's chapter 13 plan, filed November 23, 1988, provided that the $5,100 arrearage would be paid in full over a period of three years, and after confirmation of the plan, current child support payments would be made directly to Susannah. The plan also provided that appellant would make monthly payments to the chapter 13 trustee in the amount of $591.50. 2 Beginning January 1989, appellant began making payments to the trustee and in 1989 he made the following payments: January 1989--591.50; February 1989--$1,183; March 1989--$591.50; April 1989--$591.50; and June 1989--$1,193. 3 He made no further payments during 1989.
In September 1989, the Bankruptcy Court ruled that appellant was not eligible to be a debtor under chapter 13 pursuant to Bankruptcy Code section 109(e) and in December 1989 the case was converted to one under chapter 11 of the Bankruptcy Code. 4 In 1990 appellant paid a total of $750 to Susannah, $600 in January and $150 to her in May.
In October 1990, the District Attorney filed a criminal complaint against appellant alleging a violation of Penal Code section 270, failure to provide support for his two children from July 21, 1989 until July 20, 1990. Appellant unsuccessfully attempted to move for dismissal on the ground that the criminal proceedings were in violation of the automatic stay of the Bankruptcy Code. (11 U.S.C.
§ 362.) 5 Following a two day jury trial, appellant was found guilty and he was sentenced to 360 days in county jail. No fine was assessed against him
Following his appeal to the superior court, the Appellate Department issued a memorandum affirming the judgment, which was later certified for partial publication. We then ordered transfer of this case to this court.
Appellant contends that he cannot be criminally prosecuted for failure to pay child support while under the jurisdiction of the Bankruptcy Court; that he did not "willfully" refuse to make payments as required under Penal Code section 270 but was prohibited from doing do by the Bankruptcy Court; and that the trial court erred in admitting into evidence his chapter 11 Disclosure Statement filed in Bankruptcy Court.
In order to facilitate discussion of appellant's contentions, we set forth the following summary of support payments made by appellant and relevant events in the municipal court and the bankruptcy court.
It is undisputed that from July 21, 1989 to July 20, 1990, the period alleged in the complaint, appellant made only two payments to Susannah, one payment of $600 in January 1990 and one payment of $150 in May 1990, for a total of $750. 6 According to the terms of the support order, he should have made payments during that period totalling $7,200.
It is also undisputed that during the period alleged in the complaint, appellant was under the jurisdiction of the Bankruptcy Court. In July 1989, appellant was in chapter 13 proceedings. In December 1989, the case was converted to one under chapter 11. In May 1990, appellant's plan for reorganization was confirmed, but he still technically remained under the jurisdiction of the Bankruptcy Court, chapter 11, when the criminal complaint was filed. (11 U.S.C. §§ 1141, 1142; Goodman v. Phillip R. Curtis Enterprises, Inc. (4th Cir.1987) 809 F.2d 228, 232.)
Appellant contends that the criminal proceedings violated the automatic stay provisions of the Bankruptcy Code, 11 United States Code section 362(a)(1). We find this to be incorrect.
Section 362(a)(1) of the Bankruptcy Code provides as follows: "Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970 (15 U.S.C. 78eee(a)(3)), operates as a stay, applicable to all entities, of--[p] (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before commencement of the case under this title[.]" 7
Section 362(b)(1) of the Bankruptcy Code provides an exemption from the automatic stay for "the commencement or continuation of a criminal action or proceeding against the debtor."
Appellant argues that this action does not fall within this exemption because the primary function of Penal Code section 270 is to enforce payment of past due support, not to punish criminal conduct. In support of this contention, appellant cites several bankruptcy cases, In re Heincy (Heincy v. Superior Court of the State of California) (Bankr.S.D.Cal.1986) 58 B.R. 930; In re Kaping (Kaping v. State of Oregon) (Bankr.D.Or., 1981) 13 B.R. 621; In re Thomassen (Thomassen v. Division of Medical Quality Assurance) (Bankr. 9th Cir.1981) 15 B.R. 907; and Hucke v. State of Oregon (9th Cir.1993) 992 F.2d 950. We find these cases are not on point.
In Heincy, the Bankruptcy Court for the Southern District of California enjoined the state from enforcing a criminal restitution order against a debtor in bankruptcy who had been convicted of grand theft (embezzlement) (58 B.R. 930). The matter was appealed and the Ninth Circuit held the injunction restraining the state from enforcing the restitution order should not have been granted. 8 (In re Heincy (Superior Court for the State of California v. Heincy) (9th Cir.1988) 858 F.2d 548.) The appellate opinion did not discuss the applicability of the automatic stay provisions, but instead, based its decision on the federal abstention doctrine enunciated in Younger v. Harris (1971) 401 U.S. 37, 43-49, 91 S.Ct. 746, 750-753, 27 L.Ed.2d 669 and principles of federal injunctive relief. (In re Heincy, supra, 858 F.2d at pp. 549-550.)
In Thomassen (supra, 15 B.R. 907), the Bankruptcy Appellate Panel for the Ninth Circuit held that the Bankruptcy Court for the Central District of California did not err when it refused to enjoin administrative proceedings to revoke a debtor in bankruptcy's medical license. The debtor argued that the administrative proceedings were not an exercise of the state's "police or regulatory" power (11 U.S.C. § 362(b)(4)), and thus were subject to the automatic stay. The Bankruptcy Appellate Panel conceded that the "police or regulatory powers" exception to the automatic stay provisions does not apply when the exercise of those powers is for a pecuniary purpose (15 B.R. at p. 909) but that the instant license revocation proceedings were not for a pecuniary purpose and were related to the health or safety of the public. (15 B.R. at p. 910.) 9
In Hucke v. State of Or., supra, 992 F.2d 950, a convicted rapist was granted probation and ordered to pay a restitution fine. Within six months, during which period he had paid nothing towards the restitution order, he filed a chapter 13 bankruptcy petition. He was later found in violation of his probation and was resentenced to 3 years in prison. (992 F.2d at p. 952.) The District Court held that since the probation revocation was based on the failure to pay a debt (the restitution order), it was void under the automatic stay and the debtor was ordered released from prison. On appeal, the Ninth Circuit found there was no violation of the automatic stay and that the state court acted within its discretion in revoking probation. (992 F.2d at p. 954.)
In In re Kaping, after filing a petition under chapter 7 of the Bankruptcy Code, a debtor was indicted for failure to pay child support. His wife's claim for past due support had been assigned to the State of Oregon. The Bankruptcy Court for the District of Oregon, attempting to reconcile the provisions of sections 105 and 362 of the Bankruptcy Code, held that criminal prosecution which is primarily motivated to recover a dischargeable debt...
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