Section 1252 | CALCRIM (Jury Instructions)

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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