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Name: People v. Coulthard (2023) 90 Cal.App.5th 743
Case #: H049755
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 03/30/2023
Subsequent History: Ordered published 04/19/2023

To convict defendant of child abduction, the prosecution was not required to prove that the foreign court order or child custody order used to prove defendant’s guilt had previously been registered in California. Defendant’s daughter, M.C., lived with her mother in the United Kingdom, per a UK custody order. Contrary to the visitation terms of the custody order, defendant refused to return M.C. to her mother following M.C.’s visit with him in the U.S. M.C.’s mother obtained a UK emergency return order, which was served on defendant by the Campbell Police Department. Defendant was arrested, charged, and convicted of child abduction. On appeal, he argued there was insufficient evidence that he lacked custody rights of M.C. because the UK return order had not been registered in California pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Held: Affirmed. Child abduction or child stealing under section 278 applies to persons “not having a right to custody” and who have acted with the intent to detain or conceal the child “from a lawful custodian.” Neither section 278 nor section 277, which defines “custody order” and related terms, mentions the UCCJEA (a civil legal process for jurisdictional child custody determinations) or states that any non-California custody order must be registered in California before it can serve as proof of the elements of child abduction. Thus, the registration status of the return order was immaterial to defendant’s prosecution for child abduction. Further, there was substantial evidence, per the 2017 custody order, that M.C.’s mother was the lawful custodian on the relevant dates and defendant maliciously kept or withheld M.C. with an intent to detain or conceal her from her mother, as required to prove a violation of section 278.

Remote testimony from the UK during the COVID-19 pandemic did not violate defendant’s right to confront witnesses. In 2021, the prosecution filed a pretrial motion to allow M.C.’s mother to testify remotely by way of two-way audio/video communication technology, arguing the remote testimony would not violate defendant’s right to confront witnesses because the circumstances surrounding the COVID-19 pandemic required it. The trial court granted the motion. The Court of Appeal concluded that there was no reasonable alternative to M.C.’s mother’s remote testimony, which was necessary to advance the important public policy of ensuring the health of all courtroom users during the COVID-19 pandemic. Further, her testimony was reliable and subject to adversarial testing by defendant and defense counsel. [Editor’s Note: The Court of Appeal disagreed with defendant’s additional claims that his child abduction conviction violated the prohibition against ex-post facto laws and his due process rights because there was no reasonable interpretation of section 278 that put him on notice that violating an unregistered foreign custody order could subject him to criminal penalties in the U.S. The court also disagreed with defendant’s claim that application of section 278 without following the Hague Convention procedure resulted in obstacle preemption.]

The full opinion is available on the court’s website here: