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Name: People v. Neidinger
Case #: S133798
Court: CA Supreme Court
District CalSup
Opinion Date: 11/20/2006

Penal Code section 278.5, subdivision (a) criminalizes the concealing or withholding of a child from the person with a right to custody or visitation. Section 278.7 provides that section 278.5 does not apply where a person acts in good faith and reasonable belief that if the child is left with the other person he or she will suffer injury or emotional harm. Here, the Neidingers had joint custody of their children. William was concerned about the children and had contacted Child Protective Services and sought a protective order. He obtained custody of the children and moved them to Nevada. He was charged under section 278.5 He asserted the defense provided by section 278.7, claiming that removal of the children was necessary for the children’s well-being. The trial court instructed the jury that he had to prove section 278.7 (a)’s facts by a preponderance of the evidence. He was convicted, but the appellate court reversed because of instructional error. The California Supreme Court granted review of this case to examine the relationship between these two provisions. In this opinion, the Court affirms the appellate court’s reversal of the judgment, holding that the defendant bears the burden of raising a reasonable doubt regarding whether section 278.7 applies. Here, William’s defense would have negated the malicious element of the offense, and directly related to his guilt or innocence. Therefore he needed only to raise a reasonable doubt as to the facts underlying his defense.