People v. Jones, Cr. 6094

• Decision Date: 20 December 1967
• Docket Number: Cr. 6094
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent. v. Balkwill JONES, Defendant and Appellant.

Page 622

64 Cal.Rptr. 622

257 Cal.App.2d 235

PEOPLE of the State of California, Plaintiff and Respondent. v. Balkwill JONES, Defendant and Appellant.

Cr. 6094.

Court of Appeal, First District, Division 2, California.

Dec. 20, 1967.

Richard M. Schnal, Donald H. Smith, Monterey, for appellant.

Thomas C. Lynch, Atty. Gen. of the State of California, Michael J. Phelan, Lawrence R. Mansir, Deputy Attys. Gen., San Francisco, for respondent.

AGEE, Associate Justice.

Defendant appeals following a conviction by the court of a violation of Penal Code section 270, which provides that the father of a minor child 'who willfully omits without lawful excuse' to furnish necessary support for such child is guilty of a criminal offense.

The facts are not in dispute. Appellant and the mother of the subject child were divorced in Florida in August 1957, where the three then resided. In June 1958 the mother and child moved to California and have been residents thereof ever since. The nonsupport period charged in the Information is from May 18, 1962 to May 18, 1965, during which period the mother and child resided in Monterey County.

Appellant did not during such period furnish any support for the child except for one payment of $65 made in May 1963, pursuant to a Reciprocal Support Order made in Ohio, the state in which he now resides.

Appellant put on no evidence at the trial herein except to obtain a stipulation that he had never been in the State of California until extradited from the State of Ohio. His Sole defense on appeal is stated as follows: 'A non-resident of this state who has never been in this state cannot commit an offense within this state.' We do not agree.

The offense is committed at the place where the child resides. In the early case of In re Bryant (1928) 94 Cal.App. 791, 794--795, 271 P. 926, 927 the court stated: 'It is also contended that the evidence fails to show that any offense was committed in the county of San Benito. There is no merit in this contention. The venue of the offense denounced by section 270 of the Penal Code is properly laid and proved in the county where the children were supported or maintained. Here the children were in the custody of their mother and maintained by her in San Benito county. The mother's place of residence determines the question as to jurisdiction.' (It will be noted that this is not a venue case in the usual sense, i.e., the place of trial was not involved; the proceeding was one in habeas corpus and the issue was whether or not the defendant had committed the offense in San Benito County.)

Another decision in point is In re Gornostayoff, 113 Cal.App. 255, 298 p. 55, in which the court denied a writ of habeas corpus sought by a father who was detained in California pursuant to a warrant of extradition to Ohio on a nonsupport charge. The petitioner claimed that he was not physically in the State of Ohio on the dates alleged in the criminal complaint. The court, in refusing the writ, stated: 'There is no merit in the petition. Considering the character of the offense with which he is charged, his presence within the state was not necessary to enable him to commit the same.'

The precise question at bench was presented to the Attorney General in 1954 and the following conclusion was reached: 'A father who fails and refuses to provide for the support of his minor child, who resides with its mother in the State of California, is guilty of a violation of Penal Code Section 270, although the father never has been in the State of California.' (23 Op.Atty.Gen. 210.)

Appellant refers to the general rule regarding the necessity that some 'overt act' be committed in this state. The use of this phrase is somewhat misleading when applied to the particular offense involved herein.

As pointed out by the Attorney General: 'The offense of failing to provide support for minor children is a crime of omission rather than commission. Necessarily the offense is committed by the failure of the defendant to act, which failure on his part causes a condition of dependency and destitute circumstances.' (Ibid. p. 211.)

Penal Code section 778 shows legislative recognition of the concept that a defendant may violate a California penal statute even though outside of the state at the time of its commission. ¹

Likewise, Code of Civil Procedure section 1660, which is part of the Uniform Reciprocal Enforcement of Support Act, provides in part as follows: 'The provisions for extradition of criminals not inconsistent herewith shall apply to any such demand although the person whose surrender is demanded was not in the demanding state at the time of the commission of the crime and although he had not fled therefrom.'

These statutes are in accord with well-established precedents. In Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 560, 55 L.Ed. 735, the court stated: 'Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect, if the state should succeed in getting him within its power.'

Another statute which demonstrates California's rejection of the theory that a person must be physically present in the victim state at the time of the crime before that state can punish him is Penal Code section 1549.1. It provides that California may surrender a person charged with a crime in a state demanding extradition even though that person was not present in the demanding state at the time the crime was committed and even though that person has not fled from the demanding state. It is enough if the person is charged 'with...