California Criminal Jury Instructions (CALCRIM) (2017)

2981. Failure to Provide

Download PDF
2981.Failure to Provide (Pen. Code, § 270)
The defendant is charged [in Count ] with failing to provide for
(his/her) (child/children) [in violation of Penal Code section 270].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant was the parent of <insert name[s] of
child or children>;
2. <insert name[s] of child or children> (was/were) [a]
minor[s];
3. The defendant failed to provide necessities for
<insert name[s] of child or children>;
AND
4. The failure to provide was willful and without lawful excuse.
Aminor is a person under 18 years old.
Someone commits an act willfully when he or she does it willingly or on
purpose.
Necessities are necessary clothing, food, shelter, [and] medical care[, or
other remedial care] for a minor child.
[Other remedial care includes spiritual treatment through prayer alone
in accordance with the tenets and practices of a recognized church or
religious denomination and by one of its duly accredited practitioners.]
[A parent must do all that is reasonable in order to provide necessities
for minor children. A parent has a lawful excuse for failing to do so if,
through no fault of his or her own, he or she is unable to earn enough
money and does not have other income or assets to pay for those
necessities. [It is not a lawful excuse if the parent is unable to provide
necessities because he or she has unreasonably chosen to spend money
on other things or has failed to diligently seek work.]]
[When you decide whether the defendant was able to provide necessities
for <insert name[s] of child or children>, consider all of
(his/her) income, including social insurance benefits and gifts.]
[A parent must provide necessities for a minor child even if he or she
never married or is divorced from the child’s other parent. This duty
also exists regardless of any court order for alimony or child support in
a divorce action.]
[It is not a lawful excuse that the other parent has legal custody of the
757
0061
minor child or that the other parent, another person, or an organization
voluntarily or involuntarily has provided necessities for the minor child
or undertaken to do so.]
[If the People prove beyond a reasonable doubt that the defendant knew
of ’s <insert name[s] of child or children> existence and
either:
1. Abandoned or deserted <insert name[s] of child or
children>,
OR
2. Failed to provide <insert name[s] of child or
children> with necessities,
then you may but are not required to conclude that the defendant’s
failure to provide was willful and without lawful excuse.]
[The husband of a woman who bears a child as a result of artificial
insemination is the father of that child if he consented in writing to the
artificial insemination.]
[If the People prove beyond a reasonable doubt that:
1. <insert name[s] of child or children> (was/were)
born while the defendant’s wife was cohabiting with him,
AND
2. The defendant is neither impotent nor sterile,
then you may but are not required to conclude that the defendant is
’s <insert name[s] of child or children> father.]
[The People have the burden of proving beyond a reasonable doubt that
the defendant is the parent of <insert name[s] of child or
children>. If the People have not met this burden, you must find the
defendant not guilty of this crime.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
[An unborn child is considered a minor for whom a parent must
provide necessities.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
CALCRIM No. 2981 VANDALISM, LOITERING, AND TRESPASS
758
0062
The bracketed paragraphs that begin with “If the People prove beyond a reasonable
doubt that” explain rebuttable presumptions created by statute. (See Pen. Code,
§ 270; Fam. Code, § 7540; Evid. Code, §§ 600–607.) The California Supreme Court
has held that a jury instruction phrased as a rebuttable presumption in a criminal
case creates an unconstitutional mandatory presumption. (People v. Roder (1983)
33 Cal.3d 491, 497–505 [189 Cal.Rptr. 501, 658 P.2d 1302].) In accordance with
Roder, these paragraphs of the instruction have been written as permissive
inferences. In addition, it is only appropriate to instruct the jury on a permissive
inference if there is no evidence to contradict the inference. If any evidence has
been introduced to support the opposite factual finding, then the jury “shall
determine the existence or nonexistence of the presumed fact from the evidence
and without regard to the presumption.” (Evid. Code, § 604.)
Therefore, the court must not give the bracketed paragraph that begins with “If the
People prove beyond a reasonable doubt that the defendant knew of
’s <insert name[s] of child or children> existence” if there is
evidence that the defendant either did not know of the child’s existence or did not
act willfully or without a lawful excuse.
In addition, the court must not give the bracketed paragraph that begins with “If
the People prove beyond a reasonable doubt that: 1. <insert
name[s] of child or children> (was/were) born while the defendant’s wife was
cohabiting with him” if there is evidence that the defendant is not the child’s father.
If there is evidence that the defendant is not the child’s parent, give the bracketed
paragraph that begins with “The People have the burden of proving beyond a
reasonable that the defendant is the parent.”
Give the bracketed paragraph about calculating age if requested. (Fam. Code,
§ 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [21 Cal.Rptr.2d 373, 855 P.2d
391].)
The remaining bracketed paragraphs should be given on request if supported by the
evidence.
AUTHORITY
• Elements and Definitions. Pen. Code, § 270.
Willfully Defined. Pen. Code, § 7(1).
• Minor Defined. Pen. Code, § 270e; Fam. Code, § 6500.
• Inability as Excuse. People v. Wallach (1923) 62 Cal.App. 385, 391 [217 P.
81].
• Must Do All Reasonable. People v. Caseri (1933) 129 Cal.App. 88, 91–92
[18 P.2d 389].
• Parentage Through Artificial Insemination Defined. Fam. Code, § 7613.
• Presumption and Inference Defined. Evid. Code, § 600.
• Permissive Inference of Parentage. Fam. Code, § 7540; People v. Roder
VANDALISM, LOITERING, AND TRESPASS CALCRIM No. 2981
759
0063
(1983) 33 Cal.3d 491, 506–507 [189 Cal.Rptr. 501, 658 P.2d 1302].
• Evidentiary Presumptions. Evid. Code, §§ 602–604.
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Crimes and Crimes
Against Decency, § 143.
CALCRIM No. 2981 VANDALISM, LOITERING, AND TRESPASS
760
0064