Moore

Penal Code section 270 makes it a misdemeanor for the parent of a minor child to “willfully omit[], without lawful excuse,” to provide the necessities of life for his child. 1 The statute says that proof of the parent’s failure to provide the required care is prima facie evidence that the failure to provide was willful and without lawful excuse. (§ 270.) In the case now before us, the defendant (the father of a minor child), says “willfulness” is an element of the offense and must be proved by the People. The prosecutor says it is an affirmative defense. We agree with the defendant.

Facts

Ivan Rene Moore was charged with one count of misdemeanor failure to provide care for his 11-year-old daughter, Brittany Moore. (§ 270.) At trial, the People presented evidence that Moore is, in fact, Brittany’s father (he is not and never has been married to Brittany’s mother but there is no issue of paternity at this time), and that Moore had, in the past, voluntarily provided some money for Brittany’s care and given her small gifts. Brittany’s mother testified that Moore’s payments had dwindled and that he had contributed only $100 during the preceding year. Moore testified on his…