Later courts went against this
Limited by People v. Whitmer, 59 Cal. 4th 733 (2014)
Without deciding whether any particular post-Bailey Court of Appeal opinion was incorrect under its facts, we disapprove of any interpretation of Bailey that is inconsistent with this conclusion.
Distinguished
Distinguished by People v. Chrisman, 256 Cal. App. 2d 425 (1967)
People v. Bailey (1961) 55 Cal.2d 514 [11 Cal.Rptr. 543, 360 P.2d 39], and People v. Fontaine (1965) 237 Cal.App.2d 320 [46 Cal. Rptr. 855], on which the People rely, new trials had been ordered on questions of law which the appellate court found were erroneously decided, and there was no dispute as to the facts, or in relation to the inferences which could be drawn from them.
The opinion
PETERS, J.
— I concur in the order reversing the granting of a new trial.
This ease differs materially from People v. Shirley, post p. 521 [ 11 Cal.Rptr. 537 , 360 P.2d 33 ], also decided this day. In the instant ease, as the main opinion correctly points out, the challenged instruction and the regulation upon which it was based merely told the jury that a disputable presumption arises that a man and woman are married when they publicly deport themselves as husband and wife. This is in precise accord with the rebuttable presumption created by section 1963, subdivision 30, of the Code of Civil Procedure.
The later regulations which were involved in the Shirley ease, supra, and which are correctly set forth in footnote 1 of the main decision in this case, are, in my opinion, illegal and void for the reasons set forth in my dissent in the Shirley ease, supra.
I concur in the order of reversal.