Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 05WF2872, Thomas James Borris, Judge.
Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Marvin Mizell, Maxine Cutler and Elizabeth Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
A jury convicted Jennifer Michelle Myers of one count of felony child abduction in violation of Penal Code section 278.5, subdivision (a), the only count alleged in the complaint. The trial court suspended sentence and imposed three years of formal probation on terms and conditions, including a restraining order prohibiting Myers from contacting the victim, her daughter K.M., now 11 years old.
Myers challenges the conviction, contending:
1. The trial court erred by not declaring a mistrial, and her trial counsel was ineffective for not seeking or consenting to a mistrial.
2. Substantial evidence did not support the conviction.
3. The trial court erred by failing to instruct the jury sua sponte on the definition of “abandons” as used in a jury instruction.
4. The trial court abused its discretion by denying Myers’s request to reduce the conviction to a misdemeanor.
We conclude the trial court was correct not to declare a mistrial, Myers’s trial counsel was not ineffective for not requesting or consenting to a mistrial, and substantial evidence supported the verdict. We conclude, however, the trial court erred by failing to give sua sponte a jury instruction defining the word “abandons” as used in the trial court’s own modification to Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 1251. The instructional error was prejudicial because it does not appear beyond a reasonable doubt the error did not contribute to the verdict. We therefore reverse and remand without addressing Myers’s fourth contention.
FACTS
We view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303.)
In May or June 1995, Myers started a romantic relationship with Robert Mondragon. From 1995 to 2003, Myers and Mondragon periodically broke up and resumed their relationship.
Mondragon moved in with Myers and her daughter, T., in July 1995. K.M. was born to Myers and Mondragon in June 1996. In 1997, Mondragon was convicted of domestic violence against Myers. In the same year, he moved out of Myers’s home.
Sometime in 1999, Myers asked Mondragon if he would consent to her moving to Florida with her two daughters to live with her mother. He declined. Later that year, Myers asked Mondragon for written authorization to move to Florida with her daughters, but he refused. In June 2001, Mondragon obtained an oral court order granting him alternate weekly custody of K.M.
In July 2003, Myers was assaulted by an unknown assailant in her apartment. Unemployed and with no money, she asked Mondragon to move back in with her. Mondragon moved in with Myers, and they renewed their relationship. About a month later, Myers lost her apartment for not paying rent. She spoke with her mother, Pamela Messer, about staying with Messer at her home in Florida. Myers told Messer it would be necessary to bring Mondragon with her to Florida so she could take K.M. out of state legally, but as soon as she arrived in Florida, she was going to “get rid” of him. Messer agreed to this plan because Myers had told her Mondragon had done “terrible things” to Myers and her children.
Myers told Mondragon that her mother was in poor health and had suggested they “come out to Florida” with K.M. and T. He agreed. Myers did not tell Mondragon she intended to live in Florida permanently and did not tell him how long she planned to stay with her mother. He sold his car and gave Myers the proceeds to help her. They placed their furniture, appliances, and other household possessions in storage. Although Mondragon did not have a key to the storage unit, his name was on the list of persons allowed access to it.
On August 1, 2003, Myers, Mondragon, K.M., and T. set off from Costa Mesa for Florida in a rented van packed with clothing, a television set, a small stereo, a snake, and a gecko. After three days of driving, they arrived at Messer’s home in Florida. Although Messer did not like Mondragon and did not want him staying with her, she reluctantly let him spend the night. The next day, Mondragon flew back to California. At the airport, he said to Myers, “I’ll be back probably within, you know, a month or so,” and said to K.M., “don’t worry. Dad will be back real, real soon.” Mondragon did not return to Florida and did not see K.M. again until October 6, 2005, over two years later.
While in Florida, Myers said nothing to Mondragon to suggest she intended to stay there permanently. But once Mondragon had returned to California, Myers told Messer he was “out of the picture” and it was “[g]oodbye, so long.”
After returning to California, Mondragon called Myers and K.M. every other day for about three weeks. After about three weeks, Mondragon called less frequently. When Mondragon did call, Myers often had an excuse for not speaking with him. During a telephone call in the second week of October 2003, Myers screamed at Mondragon that she never wanted to see him again and hung up the phone. Mondragon spoke with Myers only three or four times after that. Sometime between October and December 2003, Mondragon told Myers that he loved and missed K.M. and wanted to return to Florida to be with them. At some point, Myers told Mondragon she had enrolled K.M. in school in Florida.
Mondragon sent Myers $50 during the first two weeks she was in Florida. After that, when Myers asked Mondragon for money, he told her he could not afford to send any. On one occasion, Mondragon said he was trying to save money to get an apartment for them in California.
Once when they spoke, Myers asked Mondragon to pay the rental fee on the storage unit. She also told him she was seeing someone else. In another conversation, Mondragon asked, “how are you going to get my daughter to me for my week?” Myers replied, “well, go ahead and take me to court then.” In one conversation, she asked him to send the items in the storage unit to Florida. He refused.
During a telephone call in the last week of November or the first week of December 2003, Myers told Mondragon she would send K.M. to visit him if he sent the contents of the storage unit to her in Florida. Mondragon refused. He did not trust Myers. He had learned that because K.M. was a minor, Myers would have to accompany her to the airport for her to fly to California. When he asked Myers to do that, she refused. Mondragon believed Myers would cash in any airplane ticket he sent her and “was never going to put [K.M.] on the plane.”
Mondragon spoke with Myers for the last time on December 9, 2003. He went to court later that month and obtained an order to show cause (OSC) regarding custody of K.M. Mondragon’s father twice mailed a copy of the OSC to Myers at Messer’s house in Florida. Mondragon did nothing further on the OSC and did not go to the police. In July 2004, he filed a child abduction complaint with the district attorney’s office. On a questionnaire provided by the district attorney’s office, Mondragon stated he had been convicted of domestic violence but did not identify Myers as the victim.
Mondragon testified he did not go to Florida to see K.M. or to obtain custody of her because he decided to let the court handle the situation. Although Mondragon had Messer’s address and phone number, he never contacted her to learn where K.M. was living. He had no contact with K.M. from December 17, 2003 to September 2005, when the child abduction complaint against Myers was filed.
Myers received the OSC in late December 2003. She told Messer that Mondragon was trying to get custody of K.M. but claimed “he was never going to see her again.” At about the same time, Myers told Messer she had met a man she wanted to marry. Since this man did not like K.M., Myers wanted to send her to California because “[s]he was not going to let K[.M.] ruin her chances of marrying.”
Messer again received copies of the OSC a couple of months later, after Myers had moved out of her house. When Messer handed the OSC to Myers, she said that Mondragon “was not going to have anything to do with the children again.” Between the fall of 2003 and September 2005, Myers told Messer “[n]umerous times” that she had no intention of letting Mondragon see K.M. again.
In September 2005, Messer spoke with Mondragon and expressed concern over K.M. and wondered why Mondragon had not tried to contact her. Mondragon explained his efforts to obtain custody. In February 2006, the time of trial, K.M. had been living with Mondragon for several months.
Discussion
I.
The Trial Court Was Correct Not to Declare a Mistrial, and Myers’s Trial Counsel Was Not Ineffective for Declining to Seek or Consent to One.
A. Summary
Trial exhibit 1 is a copy of a family court order dated June 25, 2001 in Myers v. Mondragon, Orange County Superior Court case No. 01V000650 (the 2001 Custody Order), concerning custody of K.M. The 2001 Custody Order awarded joint legal and physical custody of K.M. to Myers and Mondragon, and ordered Myers and Mondragon to “share the min[or] child on a week to week basis with the exchange of the minor child on Fridays at 6:00 p.m.”
The 2001 Custody Order was received in evidence at the preliminary hearing, and the custody arrangement set forth in that order was mentioned during voir dire. In opening statement at trial, the prosecutor asserted that the family court had granted Mondragon and Myers 50/50 custody, that the 2001 Custody Order was in effect when Myers and K.M. were in Florida, and that Myers did not intend to abide by the 2001 Custody Order. At trial, the 2001 Custody Order was marked for identification, though not received in evidence, and was the subject of testimony and comment by counsel.
Mondragon testified he and Myers had reconciled after the family court issued the 2001 Custody Order, thereby calling its validity into question under People v. Howard (1984) 36 Cal.3d 852, 858 (child custody order is cancelled when parties reconcile before entry of a final judgment of dissolution). The trial court suggested declaring a mistrial, noting how difficult it would be to “unring the bell.” Myers’s counsel declined to consent to a mistrial, so the trial court instead admonished the jury to ignore the 2001 Custody Order and any reference to it.
Myers argues the trial court should have declared a mistrial, notwithstanding her trial counsel’s refusal to consent to one, because the error in allowing the jury to hear information regarding the 2001 Custody Order was “so egregious.” She argues her trial counsel’s “momentary ‘tactical’ decision not to pursue such a mistrial” was “invalid” and constituted ineffective assistance of counsel. As explained post, the double jeopardy provision of the California Constitution prohibited the trial court from declaring a mistrial without the defendant’s consent except for reasons not present here. We find no ineffective assistance of counsel because the record does not demonstrate there was no rational tactical reason for defense counsel’s decision not to seek or consent to a mistrial.
B. The Trial Court Could Not Declare a Mistrial Without Myers’s Consent.
1. Myers’s Trial Counsel Did Not Consent to the Trial Court’s Offer to Declare a Mistrial.
After Mondragon had testified that he and Myers had reconciled after the 2001 Custody Order, the trial court concluded: “[T]here was no lawful order for custody visitation at the time or in this case at any point in time. So that any testimony, any statements by the attorneys . . . referencing a court order that controlled visitation or custody . . . is to be stricken from [the jurors’] notes, be stricken from their memories, and it’s not to be considered in any way in the decision-making process of the case.” The trial court suggested declaring a mistrial: “[I]t’s really tough, if not impossible, when I tell the jurors to disregard everything that they’ve heard so far to actually disregard and not let any of the facts that there was discussion about custody orders creep into their deliberations. And in the great majority of times, if not in almost every instance when there’s that much information placed before the jury, the defense usually requests and is granted a mistrial in the case.”
After confirming defense counsel had spoken to Myers about requesting a mistrial, the trial court explained to her an admonishment to the jury to ignore any reference to the 2001 Custody Order might not be effective. The trial court told her: “So the issue is, is that you may not be able to appeal – if you get convicted in this case, you may not be able to appeal your conviction on the grounds that your attorney didn’t request a mistrial and that the jurors may have used unconsciously or subconsciously some of the information we talked about yesterday in finding you guilty. [¶] . . . [T]he reason this mistrial and this whole issue comes up is that we don’t want the jury to convict you on evidence that is not proper. . . . I cannot guarantee as human beings, regular people off the street, they can literally block their mind out to all this talk about court proceedings and court orders. [¶] And so what I want you to know is that . . . your attorney told me that in his office they talked about that it would probably be difficult – Mr. Harris, correct me if I’m wrong – probably would be difficult for the jury to forget all this stuff. . . . [T]hat maybe they should start a new trial, . . . with us doing jury selection without talking about court orders and things like that, which may give your attorney a new and different defense to raise in the case. . . . [¶] I just want you to know that if you’re satisfied you understand everything about me telling the jurors to forget what they heard yesterday and everything we talked about before, that you also need to understand that if you’re convicted, you may not be able to complain in any appeal that the jury improperly used the information about court hearings and court orders in order to convict you, because you’re telling me today almost that you don’t care if they use it or not.”
Defense counsel told the court that Myers had told him her main concern was to reunite her family as soon as possible because delay in her prosecution would damage her case in a pending custody dispute. Defense counsel explained that Myers had been in custody “a considerable amount of time” and returning to custody to await retrial “could further hamper any effort she has to getting her kids back.”
The trial court urged Myers not to make a decision “out of emotion” and explained again the risk the jury could not forget information they received about the 2001 Custody Order. The court advised it might be possible to start a retrial the next week. The court stated, “I just want to feel comfortable that . . . Ms. Myers . . . really, really, really think[s] that speed is more important than a cleaner presentation to the jurors.” Myers replied, “[n]o mistrial, sir.”
The trial court asked defense counsel if “legally as a tactical approach” he did not want a mistrial. Counsel replied: “Given – well, given my client’s wishes and – tactically I could go either way. . . . [¶] . . . [¶] . . . I understand the risks inherent, and I have discussed those with her. And I can relate to the court that we will go forward without a mistrial. I have carefully analyzed the possibility of a mistrial and the effect it could have.” The court asked, “[a]nd you’re taking her guidance” in the decision. “Yes, sir,” defense counsel replied.
The trial court admonished the jury at length to ignore any reference to the 2001 Custody Order and explained, “[t]here is no further prosecution in this case on the theory that there is a valid court order or was a valid court order at the time of the crime charged in this case.”
2. The California Constitution Prohibited the Trial Court from Declaring a Mistrial Without Myers’s Consent.
The double jeopardy provision of the California Constitution prohibited the trial court from declaring a mistrial without Myers’s consent (except for reasons not present here). Article I, section 15 of the California Constitution provides, “[p]ersons may not twice be put in jeopardy for the same offense.” Under this double jeopardy provision, “once a criminal defendant is placed on trial and the jury is duly impaneled and sworn, a discharge of the jury without a verdict is equivalent to an acquittal and bars retrial unless (1) the defendant consents to the discharge or (2) legal necessity requires it.” (Larios v. Superior Court (1979) 24 Cal.3d 324, 329 (Larios).) Thus, except in limited cases of legal necessity, “the policy underlying the prohibition against double jeopardy will best be served by firmly adhering to the rule that after jeopardy has attached no mistrial can be declared save with the defendant’s consent.” (Curry v. Superior Court (1970) 2 Cal.3d 707, 717-718 (Curry).)
Jeopardy attached in this case when the jury was impaneled and sworn. Because Myers did not consent to a mistrial, the trial court could not grant one except for legal necessity. Legal necessity arises from the jury’s inability to agree or from physical causes—such as death, illness, or absence of a judge or juror—that are beyond the court’s control that actually preclude the jury from rendering a verdict. (Larios, supra, 24 Cal.3d at p. 330; Curry, supra, 2 Cal.3d at pp. 713-714.) “[M]ere errors of law or procedure, such as the arguably erroneous evidentiary rulings at issue there, d[o] not constitute legal necessity.” (Larios, supra, 24 Cal.3d at p. 330.) A defendant has a fundamental right to proceed to a conclusion with the same jury, and may withhold consent to a mistrial even in the face of prejudicial error. (Carrillo v. Superior Court (2006) 145 Cal.App.4th 1511; People v. Brandon (1995) 40 Cal.App.4th 1172, 1175.)
There was no legal necessity to compel a mistrial in this case. The decision whether to grant a mistrial and continue the trial had to be made by Myers. She and her counsel affirmatively stated they did not want a mistrial.
Myers argues the federal standard set forth in Gori v. United States (1961) 367 U.S. 364 is applicable here. In Gori, the Supreme Court held that granting a mistrial on the court’s own motion without the defendant’s consent, but for the defendant’s benefit, does not as a matter of law place the defendant in double jeopardy under the Fifth Amendment to the United States Constitution. (Gori v. United States, supra, 367 U.S. at p. 369.) In Cardenas v. Superior Court (1961) 56 Cal.2d 273, 275-276, the California Supreme Court declined to follow Gori in interpreting the California Constitution’s prohibition of double jeopardy. After the Fifth Amendment was held applicable to the states under the Fourteenth Amendment in Benton v. Maryland (1969) 395 U.S. 784, the California Supreme Court reaffirmed Cardenas and again declined to apply the Gori rule to the double jeopardy provision of the California Constitution. (Curry, supra, 2 Cal.3d at p. 716.) In Curry, the court stated: “Benton requires only that the states accord their citizens at least as much protection against double jeopardy as is provided under the Fifth Amendment of the United States Constitution; it does not forbid a state from according a greater degree of such protection.” (Ibid., fn. omitted.)
Myers argues the trial court’s failure to declare a mistrial, even with her counsel’s consent, violated her constitutional right to due process. To the contrary, declaring a mistrial over her objection would have violated her “sacred” right, guaranteed by article I, section 15 of the California Constitution, not to be placed twice in jeopardy for the same offense. (Larios, supra, 24 Cal.3d at p. 329.)
C. Myers’s Trial Counsel Was Not Ineffective.
Myers argues her trial counsel was ineffective for “yielding to her desires” and declining to consent to a mistrial. We reverse on direct appeal for ineffective assistance of counsel only when “the record on appeal demonstrates there could be no rational tactical purpose for counsel’s omissions.” (People v. Lucas (1995) 12 Cal.4th 415, 442; see also People v. Anderson (2001) 25 Cal.4th 543, 569 [“When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation”].)
Myers’s trial counsel stated he had analyzed the effect of a mistrial, understood the risks, and “could go either way” tactically. The record discloses several satisfactory explanations for counsel’s decision. As explained in Curry: “A defendant may choose not to move for or consent to a mistrial for many reasons. He may be of the opinion that no error in fact occurred, or if it occurred, that it was not prejudicial. He may believe that any error in admitting improper evidence can be cured by a motion to strike or a request for admonition, or can be refuted by impeachment of the witness or contrary defense evidence. Indeed, even when a palpably prejudicial error has been committed a defendant may have valid personal reasons to prefer going ahead with the trial rather than beginning the entire process anew, such as a desire to minimize the embarrassment, expense, and anxiety mentioned above. These considerations are peculiarly within the knowledge of the defendant, not the judge, and the latter must avoid depriving the defendant of his constitutionally protected freedom of choice in the name of a paternalistic concern for his welfare.” (Curry, supra, 2 Cal.3d at p. 717.)
Myers had personal reasons for not wanting a mistrial. She told her trial counsel she did not want to delay resolution of the criminal prosecution because her main concern was to reunite her family. Defense counsel properly considered his client’s concerns in deciding whether to consent to a mistrial. In addition, defense counsel might have concluded an admonition or contrary defense evidence could repair any damage, Mondragon was not credible, or counsel did not want to take a risk with a new jury. Because the appellate record does not “demonstrate[] there could be no rational tactical purpose” for defense counsel’s decision not to seek or consent to a mistrial, we reject Myers’s claim of ineffective assistance of counsel. (People v. Lucas, supra, 12 Cal.4th at p. 442.)
II.
Substantial Evidence Supported the Conviction for Child Abduction.
Myers argues substantial evidence did not support her conviction for felony child abduction in violation of Penal Code section 278.5, subdivision (a) because Mondragon was not a lawful custodian having a legal right to custody of K.M.
In considering a challenge to the sufficiency of the evidence, we examine “the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Thomas (1992) 2 Cal.4th 489, 514.) We view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier of fact reasonably could deduce from the evidence. (People v. Barnes, supra, 42 Cal.3d 284, 303.) “The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432.)
Penal Code section 278.5, subdivision (a) states: “Every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation, shall be punished by imprisonment . . . [and] a fine.” The jury was given this instruction on the meaning of lawful custodian: “A lawful custodian is a person that [sic]has a right to the custody of the child. The right to custody means the right to physical care, custody, and control of the child according to the law. Absent a court order, each of the child’s natural parents ha[s] an equal right to the physical care, custody, and control of the child. A parent loses his or her right to custody of the child to the other parent if that parent refuses to take custody of the child or abandons the child.”
Myers argues Mondragon was not a “lawful custodian” with a “right to the custody” of K.M. because he provided no financial or parental support for K.M. from November 2003 to October 2005, and did nothing to exercise custody rights from December 2003 until October 2005 “except for sending court documents to Florida.”
California law divides fathers into four categories—de facto fathers, alleged fathers, biological or natural fathers, and presumed fathers. (In re Jerry P. (2002) 95 Cal.App.4th 793, 801.) A man who has assumed the role of parent is a “‘de facto father.’” (Ibid.) A man who may be the father but has not been established to be the natural or presumed father is an “‘alleged father.’” (Ibid.) A man who has been established to be the biological father, but who has not achieved the status of presumed father, is a “‘natural father.’” (Ibid.; see In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) A man who has satisfied Family Code section 7611 is a “‘presumed father.’” (In re Jerry P., supra, 95 Cal.App.4th at p. 801 & fn. 11.) “A ‘natural father’ can be, but is not necessarily, a ‘presumed father’ and a ‘presumed father’ can be, but is not necessarily, a ‘natural father.’” (In re Jerry P., supra, 95 Cal.App.4th at p. 801.)
“A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following subdivisions . . . .” (Fam. Code, § 7611.)
A man who has neither legally married nor attempted to marry the mother of his child cannot become a presumed father unless he “receives the child into his home and openly holds out the child as his natural child.” (Fam. Code, § 7611, subd. (d), italics added; see also Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051.)
Of the four types of fathers, only a presumed father has custody rights over a minor child. (In re Zacharia D., supra, 6 Cal.4th at p. 449 [“both the mother and presumed father, but not the natural father, ‘are entitled to custody of their minor children”].) Family Code section 3010, subdivision (a) states: “The mother of an unemancipated minor child and the father, if presumed to be the father under Section 7611, are equally entitled to the custody of the child.” Thus, absent a custody decree in effect, both the mother and the presumed father are equally entitled to custody of a minor child. (People v. Howard, supra, 36 Cal.3d 852, 856, fn. 7.)
If Mondragon were not the presumed father of K.M., then he would not have custody rights over her, and Myers could not be guilty of a violation of Family Code section 278.5, subdivision (a). Did the evidence support a finding that Mondragon received K.M. into his home and openly held her out as his natural child?
Mondragon held K.M. out as his own daughter since she was born. He sought and obtained a custody order regarding her in 2001. To K.M., he referred to himself as “daddy.” Whether Mondragon accepted K.M. into his home is a trickier question due to his on-again, off-again relationship with Myers. The 2001 Custody Order granted Mondragon and Myers equal custody of K.M. For a period of time, Mondragon had to have monitored visitation, which was once per week for three hours. After that, while Mondragon and Myers were separated, K.M. spent every other week with Mondragon at his grandfather’s house, where he was living. When Mondragon and Myers reconciled, they lived together with K.M. and Myers’s other daughter.
Myers argues that if the evidence was sufficient to establish Mondragon was a presumed father, then the evidence established Mondragon abandoned K.M. between November 1, 2003 and October 6, 2005. In statutory proceedings to declare a child free from parental custody and control, Family Code section 7822, subdivision (a) defines “abandonment” as occurring when “the child has been left without provision for the child’s identification by the child’s parent or parents or by others or has been left by both parents or the sole parent in the care and custody of another for a period of six months or by one parent in the care and custody of the other parent for a period of one year without any provision for the child’s support, or without communication from the parent or parents, with the intent on the part of the parent or parents to abandon the child.” (See People v. Ryan (1999) 76 Cal.App.4th 1304, 1315 (Ryan).) As used in Penal Code section 271a to prove the crime of abandonment for failure to maintain a child under the age of 14, the term “abandonment” “‘applies to the act of intentionally failing to supply the needs of the child,’” while in guardianship cases, “abandonment” “‘is used to describe an act of complete relinquishment of the right of parental control.’” (Ryan, supra, 76 Cal.App.4th at p. 1315.)
“Intent to abandon the child must be proved to establish abandonment,” and intent may be inferred from objective conduct. (Ryan, supra, 76 Cal.App.4th at p. 1316.) Abandonment is a question of fact subject to the substantial evidence rule. (Ibid.)
Although Mondragon had no contact with K.M. from December 17, 2003 to September 2005, he testified he sought a custody order as to K.M. in December 2003 and twice had the papers mailed to Myers at Messer’s house. Mondragon also testified he filed a child abduction complaint with the district attorney’s office in July 2004. Based on that testimony, the jury could have concluded Mondragon did not abandon K.M. But, as explained in the next part, the jury also could have concluded Mondragon did abandon K.M.—if the jury had been instructed on the definition of “abandons.”
III.
The Trial Court’s Failure to Instruct on the Definition of “Abandons” Was Reversible Error.
The trial court instructed the jury on the elements of the crime of child abduction with a modified version of CALCRIM No. 1251. The court’s instruction advised the jury a parent can lose the right to custody of the child if the parent “abandons the child.” Myers argues the trial court erred by failing to instruct the jury sua sponte on the definition of “abandons.” The error was prejudicial, Myers argues, because there was sufficient evidence from which the jury might have concluded Mondragon abandoned K.M., thereby losing his right to custody.
The trial court instructed the jury with CALCRIM No. 1251, as follows: “To prove that the defendant is guilty of this crime, the People must prove that: [¶] The defendant took, kept, or withheld a child; [¶] The child was under the age of 18; [¶] AND [¶] When the defendant acted, she maliciously deprived a lawful custodian of his right to custody.” Also pursuant to CALCRIM No. 1251, the court instructed the jury: “A lawful custodian is a person that [sic] has 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.” The trial court, apparently on its own, modified CALCRIM No. 1251 to add the following: “Absent a court order, each of the child’s natural parents have [sic] an equal right to the physical care, custody, and control of the child. A parent loses his or her right to custody of the child to the other parent if that parent refuses to take custody of the child or abandons the child.” (Second italics added.) The trial court did not provide a definition of “abandons.”
At the close of the jury instruction conference, the trial court asked whether anybody had “comments or concerns on [CALCRIM No.] 1251.” The prosecutor replied: “No, your honor. I’m not exactly sure that I agree with the court’s thinking in terms of refusing to take custody or abandoning [the] child, but my feelings aren’t so strong I’m going to object. I just want to note that for the record.”
The second sentence of the trial court’s addition apparently was taken from CALCRIM No. 1250, which was not given to the jury. The Bench Notes to CALCRIM No. 1250 in effect at that time stated, “[t]he trial court must define abandonment sua sponte when it is closely connected to the evidence presented on the right to custody.” Indeed, a trial court has a duty to instruct the jury sua sponte (1) on general principles of law relevant to issues raised by the evidence, and (2) on the meaning of a word or phrase used in the instructions when the word or phrase has technical meaning peculiar to the law. (People v. Estrada (1995) 11 Cal.4th 568, 574; People v. Enriquez (1996) 42 Cal.App.4th 661, 665.) “A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning.” (People v. Estrada, supra, 11 Cal.4th at p. 574.)
CALCRIM No. 1250 defines the elements of child abduction when the defendant does not have a right to custody. Because Myers did have a right to custody of K.M., CALCRIM No. 1250 itself was inapplicable.
We conclude the trial court, having modified CALCRIM No. 1251 to add the phrase “abandons the child,” had a sua sponte duty to define “abandons.” The word “abandon” and its counterpart noun “abandonment” have technical legal meanings both in child abduction prosecutions under Penal Code section 278.5 and in child custody determinations. (Ryan, supra, 76 Cal.App.4th at p. 1319.) In Ryan, a jury convicted the defendant of child abduction under Penal Code former section 278. The defendant argued on appeal the evidence failed to prove he lacked a right of custody over the victim, his son. (Ryan, supra, 76 Cal.App.4th at p. 1308.) The appellate court concluded substantial evidence established the defendant had abandoned his son, thereby losing his right to custody, but that the trial court erred by failing to instruct the jury on the meaning of “abandoned.” (Id. at pp. 1317, 1319-1320.)
The Ryan court stated: “We agree with appellant that a supplementary instruction on ‘abandoned’ was imperative to furnish the jury with an explanation of a term which did not have a commonly understood definition in the context of the present case. Both [Penal Code] former section 279 and Family Code section 3010 define the right of custody for purposes of [Penal Code] former section 278 to explicitly exclude a parent who has ‘abandoned’ the child. The term ‘abandoned child’ has a precise and accepted meaning in the law of child custody. The child custody standards enumerated in Family Code section 3010 are also intended to have consistency with those stated elsewhere in the Family Code, specifically in Family Code section 7822 for proceedings to declare a child free from parental custody and control on the ground of abandonment. [Citation.] As we have observed, in Family Code, section 7822, subdivision (a), a precise and technical definition of an ‘abandoned child’ has been provided. Thus, the term ‘abandoned’ is not used in its ordinary sense in child custody determinations, but rather refers to distinctive acts or omissions by a parent. The meaning of ‘abandonment’ was also closely connected to the evidence presented on the issue of appellant’s right of custody, and essential to the jury’s understanding of the case. We therefore conclude that the trial court was required to define the technical term ‘abandoned’ for the jury.” (Ryan, supra, 76 Cal.App.4th at p. 1308.)
Myers, as the defendant in Ryan, was prosecuted for child abduction in violation of Penal Code section 278.5, subdivision (a). In Ryan, the issue was whether the defendant had abandoned the child, while here the issue was whether Mondragon had abandoned K.M., but this distinction does not alter the trial court’s sua sponte duty to define the word “abandons.” In this case, the trial court, on its own, modified CALCRIM No. 1251 and should have defined any technical legal terms added by its modification. Further, the duty to instruct sua sponte on general principles “encompasses an obligation to instruct on defenses . . . and on the relationship of these defenses to the elements of the charged offense.” (People v. Sedeno (1974) 10 Cal.3d 703, 716, disapproved on another ground in People v. Braverman (1998) 19 Cal.4th 142, 176.)
“An instruction that omits a required definition of or misdescribes an element of an offense is harmless only if ‘it appears “beyond reasonable doubt that the error complained of did not contribute to the verdict obtained.”’ [Citations.] ‘To say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.’ [Citation.]” (People v. Mayfield (1997) 14 Cal.4th 668, 774.) The Ryan court held the error in failing to define “abandoned” was harmless because the evidence conclusively established beyond a reasonable doubt the defendant had abandoned his son under any definition of the term. (Ryan, supra, 76 Cal.App.4th at pp. 1320-1321.)
As explained ante, there was evidence from which the jury could find that Mondragon did not abandon K.M. We cannot say, however, the evidence conclusively established that Mondragon did not abandon K.M. or, if properly instructed, the jury beyond a reasonable doubt would have found he did not abandon her. Mondragon filed and served an OSC to obtain custody of K.M., but there is no evidence Mondragon did anything further on the OSC after he had the papers mailed to Messer’s home in January 2004.
Other than sending Myers a check for $50 in August 2003, Mondragon did not provide support for K.M. until September 2005. As stated in Family Code section 7822, subdivision (b), such failure to provide support or failure to communicate is “presumptive evidence of the intent to abandon.” Mondragon had no contact with K.M. from December 17, 2003 to September 2005. He did not try to call K.M. after January 1, 2004. Although Myers moved out of Messer’s house, Mondragon did not call Messer for the new address and telephone number. He knew where K.M. went to school in Florida but did not try to contact her there.
Mondragon did not return to Florida and declined to send Myers an airplane ticket to have K.M. flown to California. Although he testified he did not trust Myers to put K.M. on an airplane, the jury might have disbelieved that testimony. Mondragon testified he wanted Myers and K.M. to return to California and live in an apartment with him. But when Mondragon returned to California from Florida, he did not find an apartment, claiming he “didn’t have the chance.” As of October 2003, Mondragon did not have a job and had not registered K.M. for school in California.
The trial court’s failure to instruct the jury on the meaning of “abandons” does not appear beyond a reasonable doubt not to have contributed to the jury verdict. The instructional error was therefore prejudicial, and we reverse and remand for a new trial.
Disposition
The judgment is reversed and the matter remanded for further proceedings.
I CONCUR: IKOLA, J.
O’LEARY, Acting P.J., Dissenting.
I respectfully dissent. I agree with the majority, except with respect to whether Jennifer Myers was prejudiced by the trial court’s failure to define “‘abandons.’” (Maj. opn., ante, at pp. 20-21.) I agree that when the trial court modified CALCRIM No. 1251 to include language regarding “‘abandons,’” apparently taken from CALCRIM No. 1250, the court also had a sua sponte duty to define “‘abandons.’” (Maj. opn., ante, at p. 19.) The term “abandons” has a technical meaning, and it was connected with the evidence so that a further definition was necessary for the jury’s understanding of the case. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1318-1319 (Ryan).) I respectfully disagree, however, with the majority’s conclusion the error prejudiced Myers. (Maj. opn., ante, at pp. 20-21.) I conclude, as the Ryan court did, the trial court’s failure to furnish the jury with an instruction defining abandonment was not prejudicial and, thus, was harmless beyond a reasonable doubt.
The facts in Ryan are somewhat different than those here. In Ryan, father and mother were married and had a son. Son lived with mother in Oakland, and father lived in Washington. (Ryan, supra, 76 Cal.App.4th at p. 1308.) Father had little contact with son and failed to make regular or even periodic support payments to mother. (Id. at pp. 1308-1309.) When son was about four years old, father flew from Washington to visit son and when he returned to Washington, he took son with him. Father asserted mother had given him permission to do so, but mother testified she never had given father such permission. (Id. at p. 1309.) To support a conviction of child abduction, the prosecution was required to prove father did not have a right to physical custody of his son. (Id. at p. 1312.) The prosecution proceeded on the theory father lost his right to custody through abandonment, and the jury convicted father of abducting his son. (Id. at pp. 1315-1317.)
There was no judicial determination as to father’s status, but he argued as mother’s husband, he was son’s presumed father and had an equal right to custody of the child. (Ryan, supra, 76 Cal.App.4th at p. 1312.) Father maintained the evidence at trial did not prove he had lost his right to custody by abandonment. (Id. at p. 1315.) The appellate court disagreed and concluded substantial evidence established father had abandoned the child. (Id. at pp. 1316-1317.) The court found it was error for the court not to have furnished the jury with an instructional definition of the term “abandoned,” but determined the error to be harmless. (Id. at p. 1319.) The court concluded the evidence conclusively established Ryan had abandoned his child under any definition of the word. (Id. at pp. 1320-1321.)
“Trial courts . . . have a sua sponte duty to instruct on ‘the general principles of law relevant to and governing the case.’ [Citation.] ‘That obligation includes instructions on all of the elements of a charged offense’ [citation], and on recognized ‘defenses . . . and on the relationship of these defenses to the elements of the charged offense.’ [Citations.]” (People v. Rubalcava (2000) 23 Cal.4th 322, 333-334.)
“‘[A]n instruction that omits a required definition . . . is harmless only if “it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” [Citation.] “To say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” [Citation.]’ [Citations.] We must determine ‘“. . . whether the evidence eliminates any reasonable doubt that a defendant would have been convicted under proper instructions.” [Citation.]’ [Citation.]” (Ryan, supra, 76 Cal.App.4th at p. 1320.) I conclude the uncontroverted evidence eliminates any reasonable doubt that Myers would have been convicted under proper instructions.
Here, the trial court instructed the jury with CALCRIM No. 1251, in relevant part, as modified, as follows: “The defendant is charged with depriving someone else of the right to custody. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] The defendant took, kept, or withheld a child; [¶] The child was under the age of 18; AND [¶] When the defendant acted, she maliciously deprived a lawful custodian of his right to custody. [¶] . . . [¶] A lawful custodian is a person that has 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. Absent a court order, each of the child’s natural parents have an equal right to the physical care, custody, and control of the child. A parent loses his or her right to custody of the child to the other parent if that parent refuses to take custody of the child or abandons the child.”
To prove abandonment, the evidence must demonstrate an intent to abandon. “Intent to abandon the child must be proved to establish abandonment. [Citations.] ‘“Intent to abandon, as in other areas, may be found on the basis of an objective measurement of conduct, as opposed to stated desire.” [Citation.] In determining a parent’s intent to abandon, the trial court may consider not only the number and frequency of his or her efforts to communicate with the child, but the genuineness of the effort under all the circumstances [citation], as well as the quality of the communication that occurs . . . .’ [Citation.] Subdivision (b) of Family Code section 7822 further states that the ‘failure to provide support, or failure to communicate is presumptive evidence of the intent to abandon. If the parent or parents have made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent or parents.’ Proof of an ‘intent to abandon for the statutory period,’ rather than permanently, suffices. [Citation.]” (Ryan, supra, 76 Cal.App.4th at p. 1316.)
CALCRIM No. 1250, “Child Abduction: No Right To Custody,” the instruction the trial court apparently relied on in modifying CALJIC No. 1251, states in relevant part: “[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).] [¶] [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.]” (Italics added.)
In concluding the trial court’s error was prejudicial, the majority states there was evidence from which the jury could find Mondragon did not abandon K.M., but says, “We cannot say, however, the evidence conclusively established that Mondragon did not abandon K.M. or, if properly instructed, the jury beyond a reasonable doubt would have found he did not abandon her.” (Maj. opn., ante, at p. 20.) The majority appears to misplace the burden. The prosecution’s burden was to prove all the elements of the crime beyond a reasonable doubt. The prosecution did not bear the burden of establishing beyond a reasonable doubt the nonexistence of the affirmative defense Myers asserted. But, that analysis does not resolve the issue of whether the instructional error was prejudicial. The court should have instructed the jury as to what Myers must prove to establish abandonment by Mondragon. If the court deprived Myers of presenting a potentially meritorious defense by failing to provide the jury with a definition of abandon, the error would be prejudicial and require reversal. (Huynh v. Vu (2003) 111 Cal.App.4th 1183, 1200.) That being said, I turn to the evidence to determine whether the instructional error prejudiced Myers.
Myers was charged with child abduction. A necessary element of that offense is maliciously depriving a lawful custodian of custody of the child. Myers attempted to defeat this element of the crime by establishing she lacked the requisite malicious intent. Rather than maliciously depriving a lawful custodian of custody, Myers sought to establish herself as a parent caring for a child that had been abandoned by her father. For a trier of fact to conclude a parent abandons his or her child, there must be evidence establishing an intent to abandon, which as we explain above, may be shown in different ways. The evidence available to the jury as to abandonment of K.M. by Mondragon as it relates to Myers’ motivation for retaining exclusive custody of K.M. was the testimony of Mondragon and Pamela Messner, Myers’ mother.
Mondragon testified he maintained telephone contact with Myers about every other day for approximately three weeks after returning to California and then Myers began giving excuses not to talk with him when he called. He testified that in the first part of October, he received a telephone call from Myers. During the call, Myers was yelling and screaming and said she never wanted to see or talk to him again. His next contact with Myers was a couple weeks later, again by telephone. During this call, Myers advised Mondragon she was seeing someone, and she wanted him to send her belongings, which she stored in California. Having been told by Myers that she wanted nothing further to do with him, Mondragon inquired as to how he would get visitation with his daughter. It was at this point Myers told Mondragon to take her to court and Mondragon indicated he would do just that. In a subsequent telephone call detailed in the majority opinion, Myers proposed she would allow Mondragon a 2003 Christmas visit with his daughter if he would pay to send Myers’ belongings to Florida. At this point, contact between Myers and K.M. ceased.
Mondragon testified he went to family court in December 2003 seeking the court’s assistance in obtaining his visitation rights with K.M. He obtained the necessary papers from the court and served Myers in Florida. In July 2004, he contacted the district attorney’s office and filed a complaint for child abduction. The evidence is uncontroverted that after a December 17, 2003, telephone conversation with his daughter, Mondragon failed to have contact with K.M. and failed to provide for her financially until September 2005. For this lapse, Mondragon offered various explanations.
Mondragon stated he initially did not send money because he was trying to save for an apartment in California for the family. He then did not know how to contact Myers or K.M. because Myers indicated she was moving the first of the year, he did not know where she was, and she had changed her cellular telephone number. When asked by defense counsel why he did not go to Florida to “procure” his daughter, Mondragon stated he decided to “let the courts handle it and figured that was the right thing to do.”
The only other witness testifying at trial was Messner. She testified that when Myers initially spoke with her about coming with the children to Florida, Myers said Mondragon would have to accompany them because he would never sign a paper allowing K.M. to leave the state. Messner confirmed much of Mondragon’s testimony concerning the custody discussions. Myers spoke with Mondragon numerous times on the telephone during late 2003. During one of those conversations, Mondragon told Myers he loved and missed his daughter, and he was going to go to court to obtain custody of K.M. Papers arrived from Orange County in the mail for Myers at Messner’s house, and Myers read them to Messner. Myers indicated Mondragon was trying to get custody of K.M. Myers uttered numerous profanities and told Messner she had no intention of letting Mondragon see K.M. Because he was in California, there was nothing he could do and he was never going to see K.M. again. When a second set of papers arrived, Messner took them to Myers. Myers laughed saying again, “he was in California, she was in Florida, and he wasn’t going to get them.” Messner was reluctant to describe the balance of what her daughter said during this conversation, but when instructed by the court to answer to the best of her recollection, she continued. Messner testified her daughter said, “[Mondragon] could fuck off because he was not going to have anything to do with the children again.” After moving out of the house, Messner indicated Myers knew Mondragon was trying to get K.M., and she was frightened that he was going to show up and take her. Myers repeatedly told her mother as late as the first part of 2005 “she had no intention of ever letting . . . Mondragon see his daughter.” She said this to her mother 30 or 40 times. Messner also spoke with Mondragon, who told her he wanted to regain custody of K.M. Messner confirmed Myers received legal documents from the Orange County Superior Court throughout 2004.
Certainly, given the contentious relationship between Myers and Mondragon, the jury could have concluded Mondragon was biased and had a motive to color his testimony to place Myers in a bad light. But, Mondragon’s testimony did not stand alone. Myers’ mother’s testimony was very telling with respect to Myers’ motivation for retaining exclusive custody of K.M.
There is no evidence that at any time during the approximately 22 months K.M. was absent from Mondragon’s life, Myers ever indicated she believed Mondragon had abandoned his daughter. To the contrary, she consistently evidenced an intent to deprive Mondragon of custody of his daughter. She laughed off court papers and repeatedly ignored Mondragon’s efforts to resolve the custody dispute in court. The only evidence to support a reasonable belief by Myers that Mondragon had abandoned his daughter was his lack of contact and failure to provide financial support. These failures cannot be ignored, but the test is whether this evidence alone is sufficient to raise a potentially meritorious defense in light of the entirety of the evidence. If the jury had been properly instructed, on this record could a juror have entertained a reasonable doubt as to Myers’ intent to maliciously deprive Mondragon of his visitation with his daughter based on a reasonable belief Mondragon had abandoned K.M.? I think not. In light of the overwhelming evidence as to Myer’s malicious intent to deprive Mondragon of his visitation rights, I conclude beyond a reasonable doubt Myers was not prejudiced by the instructional error.
There is but one last comment I feel compelled to make. I agree a parent should maintain contact with and provide financial support for a child, but I am bothered by defense counsel’s suggestion Mondragon should have gone to Florida to “procure” his daughter. Regardless of how nasty and frustrating the proceedings may be, the court cannot countenance parents taking matters into their own hands to regain custody of their children through capture.
I would affirm the judgment in all respects.