Moss v. Superior Court

KENNARD, J., Concurring and Dissenting.

I concur in the majority opinion except as to the disposition. The majority holds, and I agree, that a parent may not avoid criminal contempt sanctions for violating a child support order by asserting the defense of financial inability to comply with the order if that inability results from the parent’s unexcused failure to seek or accept suitable employment. (Maj. opn., ante, at p. 401.) But the majority declines to apply this holding to Brent Moss, the alleged contemner in this case, stating that the decision “may reasonably be seen as both an unanticipated expansion of the law of contempt in the child support context and a change in the evidentiary burden of which Brent had no notice at the time of trial” (id. at p. 429), and that for this reason “[njeither rule may be retroactively applied” (ibid.). I disagree.

The majority invokes the rule that a criminal conviction may not be based upon “an unforeseeable judicial enlargement of a criminal statute.” (Bouie v. City of Columbia (1964) 378 U.S. 347, 353 [ 84 S.Ct. 1697, 1702 , 12 L.Ed.2d 894 ] (Bouie).) Just as the ex post facto provisions of the federal and state *431 Constitutions prohibit the legislative branch from enacting laws that impose criminal penalties for past conduct (U.S. Const., art. I, §§ 9, 10; Cal. Const., art. I, § 9), so also the constitutional due process guarantees (U.S. Const., 5th and 14th Amends.; Cal. Const., art. I, § 7) prohibit the judicial branch from imposing unexpected criminal penalties by construing existing laws in a manner that the accused could not have foreseen at the time of the alleged criminal conduct. (Marks v. United States (1977) 430 U.S. 188, 191-192 [ 97 S.Ct. 990, 993 , 51 L.Ed.2d 260 ].) A court violates this due process “fair warning requirement” when it applies “a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope.” (United States v. Lanier (1997) 520 U.S. 259 , _ [ 117 S.Ct. 1219, 1225 , 137 L.Ed.2d 432 ].)

Here, as the majority acknowledges (maj. opn., ante, at pp. 423-424), the relevant statutes provide the fair warning that due process requires. Under Code of Civil Procedure section 1209, subdivision (a)5, disobedience of any lawful court order, including a child support order, is punishable by contempt. Under Code of Civil Procedure sections 1218 and 1218.5, when the contempt consists of a failure to pay spousal support, each month for which payment is not made may be treated as a separate count of contempt, and each of these counts is punishable by, among other things, up to five days’ imprisonment. Under Code of Civil Procedure section 1209.5, the elements of contempt for failing to pay child support are the making of the child support order by a court of competent jurisdiction, notice to the parent that the order was made, and the parent’s noncompliance with the order. The parent’s ability to comply with the support order is not an element of the contempt, although the parent may assert inability to comply as an affirmative defense. (Maj. opn., ante, at p. 426; In re Feiock (1989) 215 Cal.App.3d 141, 146-148 [ 263 Cal.Rptr. 437 ] (Feiock).)

At the times relevant here, the statutory scheme provided parents with fair notice that the affirmative defense of inability to comply could not be based on a lack of income resulting from the parent’s unexcused failure to seek and accept available employment. As the majority states: “In Family Code section 4505 the Legislature has also expressed a clear intent that parents who default on a child support obligation be compelled to seek employment when necessary to meet that obligation. That section permits ‘a court [to] require a parent who alleges that the parent’s default in a child or family support order is due to the parent’s unemployment to submit to the appropriate child support enforcement agency or any other entity designated by the court, including, but not limited to, the court itself, each two weeks, or at a frequency deemed appropriate by the court, a list of at least five different places the parent has applied for employment.’ {Ibid.) In addition ‘a court *432 may require either parent to attend job training, job placement and vocational rehabilitation, and work programs ... in order to enable the court to make a finding that good faith attempts at job training and placement have been undertaken by the parent.’ (Fam. Code, § 3558.) A contempt penalty for violation of a child support order when inability to comply results from failure to seek and accept available employment consistent with the parent’s abilities is, therefore, allowed by statute.” (Maj. opn., ante, at p. 423; see also, In re Marriage of Simpson (1992) 4 Cal.4th 225, 232 [ 14 Cal.Rptr.2d 411 , 841 P.2d 931 ].)

Although it acknowledges that the relevant statutes provide fair warning that a parent who does not seek or accept suitable employment may not establish inability to pay as an affirmative defense in a contempt proceeding for violation of a child support order, the majority concludes that this statutory warning was somehow neutralized or vitiated by Ex parte Todd (1897) 119 Cal. 57 [ 50 P. 1071 ] (Todd) and, by implication, In re Jennings (1982) 133 Cal.App.3d 373 [ 184 Cal.Rptr. 53 ] and In re Brown (1955) 136 Cal.App.2d 40 [ 288 P.2d 27 ]. But these decisions are not controlling because they involved orders for spousal support, not child support. Indeed, the majority declines to overrule Todd because it is distinguishable on this basis. (Maj. opn., ante, at p. 405, fn. 4.) Because this court’s 100-year-old decision in Todd “offered no explanation for its holding” (ibid.), it was not certain that the holding would apply in the separate arena of child support orders. In short, our holding in this case does not constitute an unexpected or unforeseeable repudiation of controlling judicial precedent (cf., e.g., Marks v. United States, supra, 430 U.S. 188, 195 [ 97 S.Ct. 990, 994 ]; People v. Davis (1994) 7 Cal.4th 797, 812 [ 30 Cal.Rptr.2d 50 , 872 P.2d 591 ]).

“Not all judicial interpretations of statutes having a retroactive effect are prohibited” (People v. Wharton (1991) 53 Cal.3d 522, 586 [ 280 Cal.Rptr. 631 , 809 P.2d 290 ]), nor is retroactive application barred merely because the state of the law was ambiguous or uncertain. This point is illustrated by this court’s decisions addressing whether intent to kill is an element of the felony-murder special circumstance under Penal Code section 190.2. In Carlos v. Superior Court (1983) 35 Cal.3d 131 [ 197 Cal.Rptr. 79 , 672 P.2d 862 ] (Carlos), this court recognized that Penal Code section 190.2 did not specify that intent to kill was required, but we concluded, by a margin of six to one, that implying such a requirement was necessary to render our death penalty law consistent with the reasoning of Enmund v. Florida (1982) 458 U.S. 782 [ 102 S.Ct. 3368 , 73 L.Ed.2d 1140 ] (Enmund) and other decisions of the United States Supreme Court.

In People v. Anderson (1987) 43 Cal.3d 1104 [ 240 Cal.Rptr. 585 , 742 P.2d 1306 ] (Anderson), this court overruled Carlos, supra, 35 Cal.3d 131 . We *433 acknowledged that, when this court decided Carlos , the decisions of the United States Supreme Court, particularly Enmund, supra, 458 U.S. 782 , appeared to support the proposition that the death penalty could be imposed only for intentional killings. (Anderson, supra, at pp. 1139-1140 .) One of the high court’s later decisions, however, had “made it plain that we had read Enmund more broadly than it had intended.” (Anderson, supra, at p. 1140 .) Reconsidering the question, this court concluded that, as applied to an actual killer, the felony-murder special circumstance does not require intent to kill. (Id. at p. 1147.)

This court decided the retroactivity of this latter holding in People v. Poggi (1988) 45 Cal.3d 306 [ 246 Cal.Rptr. 886 , 753 P.2d 1082 ] (Poggi). Like the majority here, the defendant in Poggi relied upon Bouie, supra, 378 U.S. 347 , for the proposition that an unforeseeable construction of a criminal statute may not be applied retroactively. Rejecting the argument, this court said: “No such unforeseeability existed here. Defendant stands convicted of a murder that preceded Carlos[, supra, 35 Cal.3d 131 ]. Carlos itself concluded that the statute was ambiguous with respect to the requirement of intent to kill for a felony-murder special circumstance. (See . . . Anderson, supra, 43 Cal.3d at p. 1143 .) There was ample basis for pre-Carlos foreseeability of a holding that such intent is not required for the actual killer. (. . . Anderson, supra, 43 Cal.3d at pp. 1138-1147.)” ( Poggi, supra, 45 Cal.3d 306, 327 .) 1

So also here. The statutory scheme gave parents like Brent, the alleged contemner, ample warning that a court could impose contempt sanctions for a parent’s unexcused failure to obtain suitable employment necessary to comply with a child support order. Although Brent “could reasonably have relied on Todd[, supra, 119 Cal. 57 ]” (maj. opn., ante, at p. 429) as lending plausible support to a belief that a parent’s unexcused failure to obtain work was not punishable by contempt, it is no less true that the defendant in Poggi, supra, 45 Cal.3d 306 , “could reasonably have relied on” Enmund, supra, 458 U.S. 782 , as lending plausible support to a belief that an unintentional killing during the commission a felony was not punishable by death. But in neither situation is it sufficient that a noncontrolling judicial decision supported a plausible belief that a particular criminal sanction could not be imposed for particular conduct. Retroactive application of a judicial construction of a penal law is not barred merely because the prior status of the law was uncertain. Rather, “the touchstone is whether the statute, either *434 standing alone or as constmed, made it reasonably clear at the relevant time that the defendant’s conduct was criminal.” (United States v. Lanier, supra, 520 U.S. 259 ,_[ 117 S.Ct. 1219, 1225 ].) Because the statutory scheme at issue here gave parents ample warning that unexcused failure to take suitable employment could result in criminal contempt sanctions, and because that statutory scheme had never been authoritatively construed to preclude imposition of contempt for this conduct, applying this statutory scheme to Brent does not violate the due process fair warning requirement. I would apply it.

The majority also declines to apply in this case its holding that a parent relying on the defense of inability to pay has the burden of proving that defense by a preponderance of the evidence. As the majority points out, Brent may have relied upon a Court of Appeal decision stating that the alleged contemner’s burden was “merely to raise the issue of his ability to pay” ( Feiock, supra, 215 Cal.App.3d 141, 148 ). The majority disapproves this aspect of Feiock .

Because the ex post facto and due process provisions of the federal Constitution forbid retroactive application of a change in the law that lessens the prosecution’s burden of proof (see Dobbert v. Florida (1977) 432 U.S. 282, 293 [ 97 S.Ct. 2290, 2298 , 53 L.Ed.2d 344 ]; Hopt v. Utah (1884) 110 U.S. 574, 589 [ 4 S.Ct. 202, 209-210 , 28 L.Ed. 262 ]), it is reasonable to assume they equally forbid retroactive application of a change in the law that increases a defense burden of proof. Thus, I agree that our holding respecting burden of proof may not be applied retroactively to this case. But I do not agree that Brent, the alleged contemner here, is entitled to prevail under the former burden of proof allocation.

Brent failed to discharge even the slight burden of proof imposed by Feiock, supra, 215 Cal.App.3d 141 . Under that decision, he was required to “raise the issue of his ability to pay.” (Id. at p. 148.) To raise the issue, he had to do more than just announce in court that he was relying on the defense of inability to pay. Rather, he had to “offer evidence . . . sufficient to raise a reasonable doubt” (People v. Simon (1995) 9 Cal.4th 493, 506 [ 37 Cal.Rptr.2d 278 , 886 P.2d 1271 ]) as to “ ‘the existence or nonexistence of the fact in issue’ ” (People v. Figueroa (1986) 41 Cal.3d 714, 721 [ 224 Cal.Rptr. 719 , 715 P.2d 680 ]). Stated otherwise, he needed to supply evidence deserving of consideration in the sense that it was evidence from which a reasonable person could have resolved the issue of inability to comply in his favor. (See People v. Barrick (1982) 33 Cal.3d 115, 132 [ 187 Cal.Rptr. 716 , 654 P.2d 1243 ].)

Brent’s showing at the contempt hearing failed to meet even this low threshold. To raise the defense of inability to pay, Brent needed to offer *435 evidence from which a reasonable person could have concluded not only that Brent lacked sufficient income to make his court-ordered child support payments but also either that he had made reasonable and good faith efforts to obtain employment or that such efforts would have been unavailing. Brent offered no such evidence; therefore, he did not raise the defense of inability to comply.

For these reasons, I would reverse the judgment of the Court of Appeal and direct that court to affirm the trial court’s judgment imposing contempt sanctions.

Petitioner’s application for a rehearing was denied March 25, 1998.

Because Carlos, supra, 35 Cal.3d 131 , was itself controlling authority, this court has held that Anderson, supra, 43 Cal.3d 1104 , may not be applied retroactively to conduct occurring after Carlos but before Anderson. (People v. Duncan (1991) 53 Cal.3d 955, 973, fn. 4 [ 281 Cal.Rptr. 273 , 810 P.2d 131 ].)