California Criminal Jury Instructions (CALCRIM) (2017)

1250. Child Abduction: No Right to Custody

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D. CHILD ABDUCTION
1250.Child Abduction: No Right to Custody (Pen. Code, §§ 277,
278)
The defendant is charged [in Count ] with child abduction
without a right of custody [in violation of Penal Code section 278].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant maliciously (took[,]/ [or] enticed away[,]/ [or]
kept[,]/ [or] withheld[,]/ [or] concealed) a child from (his/her)
lawful custodian;
2. The child was under the age of 18;
3. When the defendant acted, (he/she) did not have a right to
custody of that child;
AND
4. When the defendant acted, (he/she) intended to detain or conceal
the child from the child’s lawful custodian.
Someone acts maliciously when he or she intentionally does a wrongful
act or when he or she acts with the unlawful intent to disturb, defraud,
annoy, or injure someone else.
Alawful custodian is a person, guardian, or public agency having a
right to custody of the child. The right to custody means the right to
physical care, custody, and control of the child according to the law or
because of a court order. [A public agency has the right to custody if it
has been given protective custody or jurisdiction of the care, custody,
control, or conduct of the child by statute or court order.]
[Intending to detain includes delaying or hindering. A person can detain
someone without using force.]
[To entice away means to lure away by creating hope or desire.]
[The defendant can be guilty of child abduction whether or not the
child resisted or objected, and even if the child consented to go with the
defendant.]
[A parent has no right to physical custody if his or her parental rights
were terminated by court order.]
[A parent loses his or her right to custody if he or she (is unable to take
custody of the child[,]/ [or] refuses to take custody of the child[,]/ [or]
abandons his or her family).]
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[A parent abandons a child by actually deserting the child with the
intent to cut off the relationship with the child and end all parental
obligations. Intent to abandon can be shown in many ways, including,
but not limited to:
1. Leaving the child without providing a way for the child to be
identified;
2. Leaving the child with the other parent for at least one year
without communicating with or supporting the child;
OR
3. Leaving the child with someone other than a parent for at least
six months without communicating with or supporting the child.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If requested, give the final bracketed sentence at the end of the paragraph defining
“lawful custodian” if a public agency was the lawful custodian at the time of the
alleged abduction. (See Pen. Code, § 277(e).)
If requested, give the bracketed sentences defining “intending to detain” (see
People v. Moore (1945) 67 Cal.App.2d 789, 791 [155 P.2d 403]) or “entice away”
(see People v. Torres (1920) 48 Cal.App. 606, 609 [192 P. 175]) depending on the
evidence in the case.
If requested, give the bracketed paragraph about the child’s consent or lack of
resistance if there is evidence the child did not resist or consented to go with the
defendant. (People v. Moore, supra, 67 Cal.App.2d at p. 792 [child’s consent
irrelevant]; People v. Grever (1989) 211 Cal.App.3d Supp. 1, 7 [259 Cal.Rptr.
469].)
Give on request the bracketed paragraph that begins with “A parent loses his or her
right to custody . . .” if there is evidence the defendant lost his or her right to
custody by being unable or refusing to take custody, or by abandoning his or her
family. (See Pen. Code, § 277(f).)
If there is evidence of abandonment, give the bracketed paragraphs defining when a
parent “abandons” a child. The trial court must define abandonment sua sponte
when it is closely connected to the evidence presented on the right to custody.
(People v. Ryan (1999) 76 Cal.App.4th 1304, 1319 [76 Cal.Rptr.2d 160].) If an
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Indian parent is involved, see Fam. Code, § 7822(e).
Give the final 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].)
Related Instructions
A defendant may be prosecuted for both the crimes of child abduction and
kidnapping. Child abduction or stealing is a crime against the parents, while
kidnapping is a crime against the child. (In re Michele D. (2002) 29 Cal.4th 600,
614 [128 Cal.Rptr.2d 92, 59 P.3d 164]; People v. Campos (1982) 131 Cal.App.3d
894, 899 [182 Cal.Rptr. 698].) See CALCRIM No. 1215, Kidnapping.
AUTHORITY
• Elements. Pen. Code, §§ 277, 278.
Abandonment Defined. Fam. Code, § 7822(a), (b); People v. Ryan (1999) 76
Cal.App.4th 1304, 1315–1316, 1320 [76 Cal.Rptr.2d 160].
• Court Order or Custody Order Defined. Pen. Code, § 277(b).
• Custody Proceeding Defined. Pen. Code, § 277(c).
• Maliciously Defined. Pen. Code, § 7(4).
• Person Defined. Pen. Code, § 277(i) [includes parent or parent’s agent].
• Child’s Consent Irrelevant. People v. Moore (1945) 67 Cal.App.2d 789,
791–792 [155 P.2d 403] [crime against parent]; People v. Grever (1989) 211
Cal.App.3d Supp. 1, 7 [259 Cal.Rptr. 469].
• Detain Defined. People v. Moore (1945) 67 Cal.App.2d 789, 791 [155 P.2d
403] [includes delaying, hindering, or retarding but not necessarily the use of
force].
• Entice Defined. People v. Torres (1920) 48 Cal.App. 606, 609 [192 P. 175].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the
Person, §§ 279–287.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.14[2][b], [c], [3] (Matthew Bender).
LESSER INCLUDED OFFENSES
• Attempted Child Abduction. Pen. Code, §§ 664, 278.
RELATED ISSUES
Custody Placed With Other Parent
Penal Code section 278 applies to a parent of a minor child whose custody has
been placed with the other parent by court order. (People v. Hyatt (1971) 18
Cal.App.3d 618, 622 [96 Cal.Rptr. 156].) A parent with bare legal custody does not
have a “right of custody” under the statute. (People v. Irwin (1984) 155 Cal.App.3d
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891, 897 [202 Cal.Rptr. 475] [father only had joint legal custody; physical custody
was awarded to the mother].)
Intent to Detain or Conceal Not Required
Proof of violation of section 278 does not require the intent to detain or conceal the
child in California. Proof of detention or concealment, however, supports an
inference of an intention to detain or conceal. (People v. Hyatt (1971) 18
Cal.App.3d 618, 623 [96 Cal.Rptr. 156] [construing former section 278 that
required intent to detain “and” conceal].)
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