Skip to content
Name: People v. Jo
Case #: C079280
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 10/03/2017

Trial court erred by instructing the jury, over defense objection, with an inconsistent affirmative defense to child custody deprivation. A jury convicted defendant of child custody deprivation (Pen. Code, § 278.5, subd. (a)). The case arose when defendant, a South Korean citizen, took her minor daughter from Sacramento to Korea and, for years, blocked contact between the father in Sacramento and the daughter. Defendant appealed, raising a number of instructional and other issues. Held: Affirmed. A trial court has a sua sponte duty to instruct on lesser included offenses even over defense objection. But the duty to instruct on a particular defense is more limited, arising only if it appears the defense is relying on such a defense, or if there is substantial evidence supporting the defense and it is not inconsistent with the defendant’s theory of the case. CALCRIM No. 1252 (based on Pen. Code, § 278.7), establishes an affirmative defense to child custody deprivation where a parent fears that domestic violence will cause emotional or physical injury to the child. However, this defense has specific reporting and child custody proceedings requirements. It also requires the jury to presume that the prima facie elements of the crime have been proved, but that defendant had some justification or excuse. This affirmative defense was contrary to the defense theory of the case, which was to challenge the prosecution’s proof, especially of malice. The trial court had no sua sponte duty to instruct on this defense and it was error to instruct on this defense over objection. However, given the overwhelming evidence that defendant maliciously deprived the father of child custody and visitation, and given that the other instructions adequately conveyed the prosecution’s burden of proof, the error was harmless beyond a reasonable doubt.

The trial court erred by instructing the jury on concurrence of act and general intent (CALCRIM No. 250) because child custody deprivation requires malice. Defendant argued the trial court erroneously told the jury it must find a union of act and general intent, because the offense of child custody deprivation requires proof of malice. A trial court has a sua sponte duty to instruct on all of the elements of the charged offense, including the mental state and the union of that mental state with the defendant’s act. CALCRIM No. 250 must not be given if the crime requires a particular mental state, such as knowledge or malice, even if the crime is classified as a general intent offense. The crime of child custody deprivation requires proof of malice, so the trial court erred by giving CALCRIM NO. 250 (the Court of Appeal declined to decide whether child custody deprivation is a general or specific intent crime). However, the error was harmless beyond a reasonable doubt because there was overwhelming evidence that defendant acted with the required intent and the jury was properly instructed the prosecution was required to prove that she intentionally committed a prohibited act.

The trial court did not err in refusing to give a defense pinpoint instruction that the affirmative defense set forth in CALCRIM No. 1252 was not the exclusive way to disprove the required mental state for the crime. The defense requested an instruction that the affirmative defense set forth in CALCRIM No. 1252 was just one of many possible ways to show the defendant did not act with the required malice. The trial court denied the request, finding the pinpoint instruction duplicative of CALCRIM No. 1252. This was not error. Pinpoint instructions relate particular facts to a legal issue in the case or “pinpoint” the defense’s theory of the case. A defendant has a right to a pinpoint instruction that is supported by substantial evidence, is a correct statement of the law, and does not merely highlight specific evidence the defense wishes the jury to consider. However, a trial court may refuse a duplicative or potentially confusing pinpoint instruction, which applies to the proposed instruction here.

The trial court was not required to force the prosecution to elect the way in which defendant violated the child custody deprivation statute or, in the alternative, instruct on the requirement of unanimity. Defendant argued the prosecution suggested several ways in which she violated Penal Code section 278.5 and the trial court should have either forced the prosecution to elect the acts on which the charge was based or instruct the jury on the requirement of unanimity. There was no error. A defendant has a constitutional right to have the jury agree unanimously that the defendant is guilty of a specific crime. Thus, if one crime is charged but the evidence shows the commission of more than one act, either the prosecution must elect the specific act relied upon to prove the offense or the jury must be instructed to unanimously agree that the defendant committed the same act. However, neither an election nor a unanimity instruction is required when the crime falls within the “continuous conduct” exception, i.e., when the acts are so closely connected they form part of the same transaction, or when the statute defines the offense to comprise a continuous course of conduct over a period of time. Penal Code section 279.1 provides that the offense of child custody deprivation continues so long as the minor child is concealed. Thus, this offense falls within the “continuous conduct” exception to the requirement for an election or unanimity instruction.

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