1252. Defense to Child Abduction: Protection From Immediate Injury
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;
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.
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.
[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 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>.
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. 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].)
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.)
If there is issue about whether the defendant made a report to the district attorney's office or began custody proceedings within a reasonable time after the abduction, give either or both of the final two bracketed paragraphs on request. (See Pen. Code, § 278.7(c)(1), (2).)
Instructional Requirements. 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].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, § 292.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.14[a] (Matthew Bender).
(New January 2006)