California Criminal Jury Instructions (CALCRIM) (2017)

1252. Defense to Child Abduction: Protection From Immediate Injury

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1252.Defense to Child Abduction: Protection From Immediate
Injury (Pen. Code, § 278.7(a) and (b))
The defendant did not maliciously deprive a (lawful custodian of a right
to custody/ [or] person of a right to visitation) if the defendant:
1. Had a right to custody of the child when (he/she) abducted the
child;
2. Had a good faith and reasonable belief when abducting the child
that the child would suffer immediate bodily injury or emotional
harm if left with the other person;
3. Made a report to the district attorney’s office in the county
where the child lived within a reasonable time after the
abduction;
4. Began a custody proceeding in an appropriate court within a
reasonable time after the abduction;
AND
5. Informed the district attorney’s office of any change of address
or telephone number for (himself/herself) and the child.
To abduct means to take, entice away, keep, withhold, or conceal.
The right to custody means the right to physical care, custody, and
control of the child because of a court order or under the law.
[One way a child may suffer emotional harm is if he or she has a parent
who has committed domestic violence against the parent accused of
abducting the child. Acts of “domestic violence” include, but are not
limited to (1) sexual assault; (2) causing or attempting to cause bodily
injury, either intentionally or recklessly; or (3) causing a person to
reasonably fear imminent serious bodily injury to himself or herself or
another.]
The report to the district attorney must include the defendant’s name,
the defendant’s or child’s current address and telephone number, and
the reasons the child was abducted.
A reasonable time within which to make a report to the district
attorney’s office is at least 10 days from when the defendant took the
child.
A reasonable time to begin a custody proceeding is at least 30 days from
the time the defendant took the child.
The People have the burden of proving beyond a reasonable doubt that
the defendant maliciously deprived a (lawful custodian of a right to
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custody/ [or] person of a right to visitation). If the People have not met
this burden, you must find the defendant not guilty of
<insert crime charged>
New January 2006; Revised August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on this defense if the defendant is
relying on it, or if there is substantial evidence supporting the defense and the
defense is not inconsistent with the defendant’s theory of the case. (See People v.
Neidinger (2006) 40 Cal.4th 67, 75, 79 [51 Cal.Rptr.3d 45, 146 P.3d 502]
[defendant must raise a reasonable doubt]; People v. Mehaisin (2002) 101
Cal.App.4th 958, 965 [124 Cal.Rptr.2d 683]; People v. Sedeno (1974) 10 Cal.3d
703, 715–716 [112 Cal.Rptr. 1, 518 P.2d 913] [duty to instruct on defenses],
disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684–685,
fn. 12 [160 Cal.Rptr. 84, 603 P.2d 1] and in People v. Breverman (1998) 19 Cal.4th
142, 163, fn. 10, 164–178 [77 Cal.Rptr.2d 870, 960 P.2d 1094].)
People v. Mehaisin (2002) 101 Cal.App.4th 958, 965 [124 Cal.Rptr.2d 683] holds
that the “defendant was not entitled to a section 278.7 defense because he did not
report the taking to the Sacramento District Attorney and did not commence a
custody proceeding”]; People v. Neidinger (2006) 40 Cal.4th 67, 73 fn.4, 79 [51
Cal.Rptr.3d 45, 146 P.3d 502] explains that “the section 278.7(a) defense provides a
specific example of when the person does not act maliciously.”
Give on request the bracketed paragraph regarding “emotional harm” and “domestic
violence” if there is evidence that the defendant had been a victim of domestic
violence committed by the other parent. (See Pen. Code, §§ 278.7(b), 277(j); Fam.
Code, §§ 6203, 6211.)
AUTHORITY
• Elements of Defense Pen. Code, § 278.7.
Abduct Defined Pen. Code, § 277(k).
• Court Order or Custody Order Defined Pen. Code, § 277(b).
• Domestic Violence Defined Pen. Code, § 277(j); see Fam. Code, §§ 6203,
6211.
• Person Defined Pen. Code, § 277(i) [includes parent or parent’s agent].
• Right to Custody Defined Pen. Code, § 277(e); see People v. Mehaisin (2002)
101 Cal.App.4th 958, 964 [124 Cal.Rptr.2d 683] [liberal visitation period does
not constitute right to custody].
• Pen. Code § 278.7, subdivision (a), Is Specific Example of Proving Absence of
Malice. (People v. Neidinger (2006) 40 Cal.4th 67, 79 [51 Cal.Rptr.3rd 45, 146
P.3d 502].)
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Secondary Sources
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person § 331.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.05[2] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.14[2][a] (Matthew Bender).
1253–1299. Reserved for Future Use
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