Opinion
Hearing Granted Nov. 22, 1967.
James C. Van Dyke, Van Dyke & Shaw, Stockton, for appellant.
Thomas C. Lynch, Atty.Gen., San Francisco, John W. Hawkes, Asst.Dist.Atty., Santa Rosa, for respondent.
DEVINE, Presiding Justice.
This appeal comes before the court on certificate, pursuant to rule 62(a) of California Rules of Court, from the Appellate Department of the Superior Court in the County of Sonoma, that the transfer is necessary to settle an important question of law. The question is whether the husband of a woman who, with his consent, was artificially inseminated may, under the circumstances of the case, be found guilty of the crime of failing to support a child who is the product of such insemination, in violation of section 270 of the Penal Code. The code section, so far as relevant, reads as follows: "A father of either a legitimate or illegitimate minor child who willfully omits without lawful excuse to furnish necessary clothing, food, shelter or medical attendance or other remedial care for his child is guilty of a misdemeanor and punishable by a fine not exceeding one thousand dollars ($1,000) or by imprisonment in a county jail not exceeding one year, or by both such fine and imprisonment." Whether appellant, Sorensen, may be considered the "father" is the crux of the problem.
The facts are recited in a settled statement. Seven years after appellant's marriage, it was medically determined that he was sterile. His wife desired a child, either by artificial insemination or by adoption, but at first appellant refused to consent. But about fifteen years after the marriage appellant agreed to the proposal of artificial insemination. Husband and wife, then residents of San Joaquin County, consulted a physician in San Francisco. They signed an agreement which is on the letterhead of the physician, and which obviously is a form on which the names were supplied, requesting the physician to inseminate the wife with the sperm of a white male. The semen was to be selected by the physician, and under no circumstances were the parties to demand the name of the donor. The agreement contains a recitation that the physician does not represent that pregnancy will occur. The physician treated Mrs. Sorensen, and she became pregnant. A male child was born in San Joaquin County. The physician who delivered the child was not the one who had accomplished insemination. The information for the birth certificate was given by the mother. She named appellant as the father. There is no evidence that appellant knew the contents of the birth certificate, and he testified that he did not know it.
For about four years the family had a normal family relationship, appellant having represented to friends that he was the child's father. Appellant treated the boy as his son. In 1964, Mrs. Sorensen separated from appellant and went to live in Sonoma County with the boy. At separation, Mrs. Sorensen told appellant that she wanted no support for the boy and she consented that a divorce be granted to appellant. Appellant did obtain a decree of divorce. In the decree Of prime importance is the fact that the case is one of prosecution for crime and not a civil action such as might be brought under the Uniform Civil Liability for Support Act (Civ.Code, §§ 241-254). Appellant can be held to criminal responsibility only if he has violated the statute with which he is charged. No crimes exist in this state unless they are created by the Constitution, statute or ordinance. (Pen.Code, § 6; People v. Harris, 191 Cal.App.2d 754, 758, 12 Cal.Rptr. 916; 1 Witkin, Cal.Crimes, § 7, p. 10.) As an example of the principle that crimes are offenses designated by statute and not merely failures to do that which ought to have been done, there is the case of In Re Gambetta, 169 Cal. 100, 145 P. 1005, in which it was held that prior to the amendment of section 270 of the Penal Code to include fathers of illegitimate children, the father of an illegitimate child could not be found guilty, although he had a civil responsibility under section 196a of the Civil Code to provide support for the child.
Because section 270 of the Penal Code places criminal responsibility only upon the father of a child, whether the child be legitimate or illegitimate, the prosecution has the absolute burden of proving that the person charged is the father. Since by the statement of facts it is plain that appellant is not the father of the child, we look to the prosecutor to see what theory he advances to support the conviction. Although the theory of the People is primarily that of estoppel, as appears below, preliminarily we shall consider other theories which either are advanced secondarily or, because of the novelty of the case, which suggest themselves as subjects for consideration.
The adoption statutes are inapplicable. An integral part of the adoption procedure is the agreement in writing that the child shall be treated in all respects as the lawful child of the adopting party or parties (Civ.Code, § 227). Upon adoption the legal relationship of parent and child is established (Civ.Code, § 228).
Section 230 of the Civil Code, which provides for adoption of an illegitimate child by the father's publicly acknowledging it as his own, receiving it as such, with the consent of his wife if he is married, into his family, and otherwise treating it as if it were a legitimate child, is inapplicable because the section applies only where the party charged is the natural father. (Estate of Baird, 182 Cal. 338, 347, 188 P. 43; Estate of Flood, 217 Cal. 763, 767, 21 P.2d 579; Estate of Lund, 26 Cal.2d 472, 491-492, 169 P.2d 643, 16 A.L.R. 606; Clevenger v. Clevenger, 189 Cal.App.2d 658, 665, 11 Cal.rptr. 707, 90 A.L.R. 2d 569.
The prosecution does not rely upon a theory of contract, which would create a liability essentially civil in nature.
Respondent is not aided by the so-called conclusive presumption of legitimacy referred to in section 621 of the Evidence code. The section reads: "Notwithstanding any other provision of law, the issue of a wife cohabiting with her husband, who is not impotent, is conclusively presumed to be legitimate." If the "presumption" Jackson v. Jackson,
It is said that the section does not really establish a presumption, but rather a rule of substantive law. (Jackson v. Jackson, 67 A.C. 241, 243, 60 Cal.Rptr. 649, 430 P.2d 289.)
Section 661 of the Evidence Code provides that a child of a woman who is or has been married, born during the marriage or within 300 days after the dissolution thereof, is presumed to be a legitimate child of that marriage. But this presumption may be disputed by the husband or by the People in an action under section 270 of the Penal Code, and if, again, we assume that the presumption of legitimacy would be tantamount to a presumption of fatherhood, we find that the statement of facts agreed upon by the parties absolutely shows that appellant is not the actual father.
The opinion of the judge of the municipal court is based on the theory of estoppel, and it is principally, if not wholly, on this theory that respondent now relies. But estoppel is related almost exclusively to the civil law. It is true that in rare cases a limited application of estoppel has been made in criminal cases. Those cited to us at the oral argument are cases of embezzlement in which the accused, having received property from a principal, was held estopped to deny the principal's ownership of the property. (Ex Parte Hedley, 31 Cal. 108; People v. Cannon, 77 Cal.App.2d 678, 176 P.2d 409.) But in these cases the estoppel does not go to the very essence of the offense ; charged. If the principal entrusting property to an agent does not actually own the property himself, he, the principal, is obliged to return it to the true owner, and if the accused steals it from his principal he deprives the latter of the opportunity to make the necessary restoration. The ultimate ownership is of no concern to the accused. But no case has been cited to us wherein an essential ingredient of a crime has been supplied to the People by estoppel.
The People cite three civil cases involving artificial insemination. In Strnad v. Strnad, 190 Misc. 786, 78 N.Y.S.2d 390, a child custody case, the court permitted the husband of the mother "modest visitations" on the grounds that the best interests of the child called for them and that the child had been "potentially adopted" or "semi-adopted" by the husband. The court carefully abstained from passing on the legal consequences insofar as property rights are concerned. In Gursky v. Gursky, 39 Misc.2d, 1083, 232 N.Y.S.2d 406, the husband, who had given written consent to artificial insemination, was held liable for the support of the resulting child in a separation action, on the grounds that he impliedly promised to furnish the support, and that he was estopped to resist the claim of the wife, the court concluding that it was reasonable to presume that the wife was induced by the husband to undergo the act and thus had changed her position, to her detriment, in reliance upon the husband's expressed wishes. The Gursky case was followed by Anonymous v. Anonymous, 41 Misc.2d 886, 246 N.Y.S. 835, also a civil matter between husband and wife. We find a palpable distinction between a criminal prosecution, in which the burden of proving every element of the offense rests upon the People, and civil cases, in which principles of contract or equitable considerations may be applied.
Respondent also cites the case of Clevenger v. Clevenger, 189 Cal.App.2d 658, 11 Cal.Rptr. 707. IN this divorce case the court, although holding that liability of the husband for support of his wife's illegitimate child had not been established, "laid out the lines of possible liability" (p. 676, 11 Cal.rptr. p. 717) which might arise from contract or estoppel. ALthough we take note of the arguments in appellant's brief that even if estoppel were permissible to establish paternity in the present criminal The judgment is reversed.
RATTIGAN and CHRISTIAN, JJ., concur.