Section 1251 | CALCRIM (Jury Instructions)

If requested, give the final bracketed sentence in the paragraph defining “lawful
custodian” if there is evidence that a public agency was the lawful custodian at the
time of the alleged abduction. (See Pen. Code, § 277(e).)
If requested, give the bracketed paragraph defining “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 (1945) 67 Cal.App.2d 789, 792 [155 P.2d 403] [child’s
consent irrelevant]; People v. Grever (1989) 211 Cal.App.3d Supp. 1, 7 [259
Cal.Rptr. 469].)
If requested, give the bracketed paragraph regarding visitation if evidence is
presented that the defendant deprived another person of his or her right to visitation.
(See Pen. Code, §§ 277(h), 278.5(a).)
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].)
AUTHORITY
•
Elements. Pen. Code, §§ 277, 278.5.
•
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 an agent of a parent].
•
Child’s Consent Irrelevant. People v. Moore (1945) 67 Cal.App.2d 789, 792 [155
P.2d 403] [crime against parent]; People v. Grever (1989) 211 Cal.App.3d Supp.
1, 7 [259 Cal.Rptr. 469].
COMMENTARY
A crime under Penal Code section 278.5 is sometimes referred to as “child
detention.” (See People v. Moses (1996) 43 Cal.App.4th 462, 464, fn. 2 [50
Cal.Rptr.2d 665].) This instruction uses the phrase “depriving someone else of the
right to (custody/ [or] visitation)” to avoid any confusion with detention under Penal
Code section 278, the general child abduction statute.
LESSER INCLUDED OFFENSES
•
Attempted Child Detention. Pen. Code, §§ 664, 278.5.
Section 278.5 does not limit the court’s contempt power. (Pen. Code, § 278.5(b).)
Contempt is not a lesser included offense of a crime under section 278.5. There is
no sua sponte duty to instruct on contempt. (People v. Moses (1996) 43 Cal.App.4th
462, 469, 471 [50 Cal.Rptr.2d 665].)
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RELATED ISSUES
Custody Order After Abduction
A custody order obtained after the abduction of a child is not a defense to a crime
charged under section 278.5. (Pen. Code, § 278.5(c).)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 318, 328–329.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.38[2] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.14[2][b], [c], [3] (Matthew Bender).
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