People v. Williams

• Decision Date: 21 December 1966
• Docket Number: Cr. 5342
• Citation: 247 Cal.App.2d 394,55 Cal.Rptr. 550
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Lee WILLIAMS, Defendant and Appellant.

Page 550

55 Cal.Rptr. 550

247 Cal.App.2d 394

The PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Lee WILLIAMS, Defendant and Appellant.

Cr. 5342.

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

Dec. 21, 1966.

Gary M. Merritt, San Bruno (under appointment of the Court of Appeal, First Appellate District), for appellant.

Thomas C. Lynch, Atty. Gen., Edward P. O'Brien, John P. Oakes, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Justice.

Defendant has appealed from a judgment entered on a jury verdict finding him guilty of assault with a deadly weapon in violation of section 245(a) of the Penal Code. He was sentenced to prison for the term prescribed by law, execution of sentence was suspended and he was placed on probation for a period of five years with nominal supervision on the condition that he serve one year in the county jail, and on the further condition that 'he make restitution in the sum of $3,059.33 to the Diner's Club ¹ within 18 months after his release from the County Jail.'

Defendant's sole contention on appeal is that the condition of probation which provides for restitution to the Diner's Club is unconstitutional and void. More particularly he asserts that it violates constitutional prohibitions on imprisonment for debt, and constitutional guarantees of due process of law. For reasons hereinafter set forth it is concluded that defendant's constitutional objections cannot be sustained but that the condition does exceed the scope of those authorized by law.

The Facts

The evidence presented at the trial reflects that the defendant and a female companion appeared at the store of one Hardwick, the victim of the assault, and the woman proceeded to select some clothes of a value in excess of $200. The defendant presented a Diner's Club card to the salesgirl who in accordance with the practice of the store took it to the proprietor for approval.

The proprietor took the card to the back hallway where he kept the imprinting machine and the current list of blacklisted cards which was received fortnightly from the Diner's Club. Upon finding the defendant's name and card number on the list he sent his wife out to talk to the customers and proceeded bakc to his office, where he placed a telephone call to the Diner's Club. He placed the card in a box of papers underneath his desk. He was instructed by the Diner's Club representative to tear the card in half and withhold it from defendant.

While the proprietor was conversing on the telephone the defendant came to the back office. The owner advised him it was private and that he should leave. The telephone correspondent interrupted to request to speak to the defendant. The defendant took the phone, but threw it down without answering.

The defendant told the proprietor that he did not need any authorization for the purchase involved, and upon being advised that he did, requested the return of his card. When the store owner told him he did not have it, the defendant struck the victim and there ensued an altercation in which the defendant assaulted the victim with a pair of dressmaker's scissors. The victim indicated to the defendant where the card had been hidden, and fled. The defendant in turn retrieved the card and left. The arrest and conviction of defendant followed.

The probation repport was not made a part of the record on appeal. The record reflects that there was a report, and that a copy was furnished to and read by the attorney for the defendant. The report apparently reflected that two prior battery complaints had been made against defendant in connection with his conduct in repossessing television sets. The court had before it a letter from the attorney for the Diner's Club which indicated that the balance owed by the defendant was $3,059.33. After confronting the defendant and his attorney with this information, the court asked defendant's counsel if there was anything further he wished to say, and upon receiving a negative response, pronounced the judgment and order from which this appeal was taken. The defendant immediately asserted his inability to pay the account as ordered, but raised no objections as to either the existence of or the extent of the liability.

Almost four weeks later the defendant was before the court on an application to be released on bail. Although the court commented that the defendant had run up about $3,500 on the credit card without the intent to pay, no attempt was made to contradict the judge or modify the terms of probation. Five days later the bail matter was again before the court, and in response to a similar comment, the defendant for the first time sought, and was immediately granted, an opportunity to speak on the point. He did not deny the existence or extent of the liability, but explained that he was using the Diner's Club card for all his personal expenses so that he could keep all of his other funds in his business; that it was the only bill he was not paying; and that he was approaching the point where he could have paid it off in a matter of a few months. He acknowledged that ethically it was wrong.

Imprisonment for Debt

Section 15 of article I of the Constitution of the State of California provides as follows: 'No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud, nor in civil actions for torts, except in cases of wilful injury to person or property; and no person shall be imprisoned for a militia fine in time of peace.'

Defendant asserts that the terms of the judgment and other admitting him to probation violate the foregoing provisions because they provide for his imprisonment on failure to pay the prescribed sum to his creditor.

He relies upon the following principles enunciated in In re Trombley (1948) 31 Cal.2d 801, 193 P.2d 734: 'Although by its terms the (constitutional) prohibition is directed to imprisonment in civil actions, it has been held to apply in a criminal proceeding where it appears that the legislation under which the accused is charged constitutes an attempt to make the mere act of failing to pay a debt a crime. (Citations.) The courts will not permit the purposes of the constitutional provision forbidding imprisonment for debt to be circumvented by mere form, and, accordingly, statutes declaring the nonpayment of an obligation to be a crime are examined in the light of this provision, and their validity is dependent upon whether the legislative objective is consistent with the constitutional guaranty.' (31 Cal.2d 801 at p. 804, 193 P.2d at p. 737; ² see also People v. Power (1958) 159 Cal.App.2d Supp. 869, 871--873, 324 P.2d 113; People v. Neal C. Oester, Inc. (1957) 154 Cal.App.2d Supp. 888, 890, 316 P.2d 784; People v. Rohe (1952) 114 Cal.App.2d 605, 608--611, 250 P.2d 647; People v. Holder (1921) 53 Cal.App. 45, 50--51, 199 P. 832; In re Crane (1914) 26 Cal.App. 22, 25, 145 P. 733.)

The foregoing cases all refer to a prohibition on the Legislature's power to make the mere failure to pay a debt the subject of criminal punishment. In Trombley the court upheld the right of the Legislature to provide criminal punishment for an employer, who, having an ability to pay, intentionally refuses to pay wages he knows are due, because he thereby perpetrates a 'fraud' within the constitutional exception (31 Cal.2d at pp. 809--810, 193 P.2d 734). In Neal C. Oester, Inc., the court upheld provisions of similar nature in regard to wilfully failing or wilfully rendering one-self financially unable to pay sums withheld as unemployment insurance contributions (154 Cal.App.2d Supp. at pp. 891--893, 316 P.2d 784). The other cases cited held statutes or the application thereof unconstitutional where no 'fraud' was demonstrated.

The phrase 'the power to prescribe punishment in a criminal case may not be used to defeat the constitutional guaranty against imprisonment for debt,' which is found in Trombley (31 Cal.2d at p. 805, 193 P.2d at p. 737) and upon which defendant relies, must be construed in the foregoing setting. It is intended to apply, as is indicated by the language immediately preceding, to 'legislation making mere failure to pay a debt a crime.' (Id., emphasis added.)

The order for payment in the present case stems from the assertion of powers conferred upon the trial court by the provisions of section 1203.1 of the Penal Code, the salient portions of which are set forth in People v. McClean (1955) 130 Cal.App.2d 439 at page 444, 279 P.2d 87 at page 91, as follows: 'The court, in the order granting probation, may impose 'such terms and conditions as it shall determine'; 'may provide for reparation in proper cases'; may order the probationer to work and earn money to pay any reparation condition; and may impose and require such 'reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach fo the law, for any injury done to any person resulting from such breach and generally and specifically for the reformation and rehabilitation of the probationer * * *'

'Restitution or reparation as a condition of probation is expressly authorized by statute (Pen.Code, sec. 1203.1) and is sanctioned by case authority (People v. Marin, 147 Cal.App.2d 625, 626, 305 P.2d 659).' (People v. Flores (1961) 197 Cal.App.2d 611, 616--617, 17 Cal.Rptr. 382, 385; and see also People v. Sidwell (1945) 27 Cal.2d 121, 130, 162 P.2d 913; People v. Lippner (1933) 219 Cal. 395, 398, 26 P.2d 457; People v. Collins (1966) 242 A.C.A. 740, 754, 51 Cal.Rptr. 604; People v. Watso (1966) 240 A.C.A. 863, 867, 50 Cal.Rptr. 31; People v. Mason (1960) 184 Cal.App.2d 182, 186--188, 7 Cal.Rptr. 525; People v. Alexander (1960) 182 Cal.App.2d 281, 292--293, 6 Cal.Rptr. 153; People v. McClean, supra, 130 Cal.App.2d 439, 444, 279 P.2d 87; People v. Labarbera (1949) 89 Cal.App.2d 639, 643--644, 201 P.2d 584; People v....