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PEOPLE v. ZEGHTCHANIAN

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Court of Appeal, Second District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Maral ZEGHTCHANIAN, Defendant and Appellant.

No. B104777.

Decided: November 24, 1998

Patricia A. Andreoni, under appointment by the Court of Appeal, Sylmar, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, and Corey J. Robins, Deputy Attorney General, for Plaintiff and Respondent.

Maral Zeghtchanian, defendant and appellant, appeals the judgment entered after her conviction by court trial of two counts of attempted child stealing (Pen.Code,1 §§ 664/278) and of one count of disobeying a court order (§ 166, subd. (a)(4)).

Sentenced to state prison for one year (the low term, concurrent on each count of child stealing, plus six months, also concurrent, for disobedience to a court order), Maral contends the convictions must be reversed because the child custody order was invalid.

We affirm the judgment.   In the published portion of this opinion we conclude (1) the applicable statute places the burden on the prosecution to establish that a defendant charged with child stealing does not have a right to custody and that the child is taken from a person who has “lawful charge” of the child and (2) invalidity of an interim dependency court order may be asserted in a subsequent prosecution for child stealing.   In the unpublished portion of this opinion we resolve Zeghtchanian's other contentions.   [[/]]

FACTUAL AND PROCEDURAL BACKGROUND

1. Prosecution evidence.

Viewed in accordance with the usual rule of appellate review (People v. Rayford (1994) 9 Cal.4th 1, 23, 36 Cal.Rptr.2d 317, 884 P.2d 1369;  People v. Johnson (1980) 26 Cal.3d 557, 575-577, 162 Cal.Rptr. 431, 606 P.2d 738), the evidence established that Maral Zeghtchanian (hereinafter Maral) and George Aintablian (hereinafter George) were married on September 28, 1990.   Their daughter, T., was born on June 30, 1991.   George filed for divorce prior to T.'s birth.

On April 28, 1994, the family court awarded Maral custody of T.;   visitation rights were granted to George.   Four months later, on August 1, 1994, the dependency court detained T. and the next day released her in the physical custody of George;  Maral was permitted monitored visits with T. That same month, on August 15, the family court advised Maral and George that its jurisdiction was suspended so long as the juvenile court exercised jurisdiction over T.

In October, 1994, George was granted a restraining order from the family court against Maral, ordering her to stay at least 100 yards away from George's residence and workplace.   This order was valid through October 27, 1997.

Litigation over custody of T. included allegations by Maral that George was sexually abusing T. Dependency Investigator Albert Odell of the Los Angeles County Department of Children and Family Services (hereinafter DCFS) investigated Maral's allegations;  his findings were that none of the allegations was true.

On a monitored visit at a DCFS office on May 19, 1995, Maral attempted to have her brother Vartan Zeghtchanian visit with T. even though the dependency court had ordered no such contacts to occur.   Maral tried to run to the elevator to leave with T., but Odell prevented Maral from doing so.   Pasadena police officers responded to DCFS and had to pry T. from the grasp of her mother.   George returned to DCFS and took T. home.

Five days later, on May 24, 1995, the dependency court continued in force the order that T. was to remain in George's custody.   Maral was present and heard the trial court make this order.

a. Facts relating to count VII-attempted child stealing on May 24, 1995.

The same afternoon, May 24, a few hours after conclusion of the court proceeding, Maral and Vartan drove to George's residence.   Maral ran to the front door, knocked, and when the door was opened slightly, forced her way into the residence, where she attempted to take T. and leave.   She was prevented from doing so by George's brother, Vrej, and by their 65-year-old mother, Verkin Aintablian.   When Glendale police officers arrived at George's house, they observed Maral struggling with George's mother and Maral trying to pull T. from Verkin's grasp.   Officer Robert Boehlert pushed Maral, who was still holding T., onto a couch;  then two police officers pulled on Maral's arms, freeing T. from her grasp.   T. ran to another part of the house.   Maral was handcuffed.   Maral told the officers George should be arrested on an outstanding warrant for child molestation.   Officer Boehlert determined no such warrant was outstanding.   Maral next gave the officer an old document which she asserted was a court order giving her custody of T. When the officer asked her for a more recent order, Maral responded “[I]t doesn't matter.   I don't care.  [¶] ․ [¶] ․ I don't care what happens.   I am taking my daughter with me.   I don't care what you do.   You can arrest me for kidnapping.   My daughter is going with me․”  George arrived at the house and gave Officer Boehlert recent court documents showing T. was in his sole custody.   Maral was arrested.

b. Facts relating to counts II and X-attempted child stealing and disobeying a court order on May 31, 1995.

A week later, on May 31, 1995, at about 6:30 a.m., George left for work.   Four hours later, Maral and Vartan went to George's house.   Vartan broke the family room window, Maral entered the house through that window, and then left.   The police were called, arriving a few minutes later.   The police telephoned George, who returned to the house to observe the window broken and things “messed up.”   T., who had been at school, returned at about 12:30 p.m. George left to buy a new window.   Shortly after George left, at about 1 p.m., Maral and Vartan parked in front of George's house and sat, looking at the house.

George's brother, Vrej, and his wife, Katheryn, lived in a duplex situated behind George's house.   From that vantage point, Katheryn saw Maral and Vartan at the curb.   Katheryn ran from her home to George's front yard, at which point Vartan asked her where George was.   Katheryn responded “never mind.”   Vartan and Maral drove away.   Katheryn went to her house and called the police;  then she went into George's house where only T. and Verkin were home.   They locked all the doors.

About two blocks from his house, George saw Vartan's car turning onto the street leading to his house.   George chased Vartan's car in his own;  Vartan again parked in front of George's house.   Maral and Vartan approached the front porch of George's house.   George parked his car in his driveway and rushed to his front porch to block their movement.   Vrej ran to the front door, yelling.   Vartan began to punch George in the face.   The blows caused George's glasses to cut his face.   The police arrived and handcuffed Vartan.

While George and Vrej were dealing with Vartan, Maral had entered the house through the broken living room window, and engaged Katheryn in a fight, pushing her and knocking her to the ground.   Maral proceeded to the dining room, where she pushed Verkin to the ground and grabbed T. Breaking Maral's grasp, T. hid under the dining room table.   Maral followed, pushed T. down, and got on top of the child.   Katheryn grabbed Maral by the hair and tried to pull Maral off of T. Maral struggled with Katheryn, kicking, biting and scratching her.

By this time the officers, George and Vrej had entered the residence.   When a police officer separated Maral and Katheryn, Maral took T. through the living room window and placed her outside the broken window and started to climb out herself.   George rushed over and pulled Maral back inside.   Vrej rushed outside to help T.

Maral was arrested.   While being transported to the police station, she spontaneously told Officer Bowman she had been trying to take her daughter out through the living room window.

2. Defense evidence.

Maral testified that she had lived with George from late 1988 until 1991.   George began to use cocaine in January 1991.   They argued about her pregnancy.   When she became pregnant, he wanted her to get an abortion.   He threatened to kill her.   In February, 1991, he shot at her, but missed.   When they separated, George at first denied paternity;  blood tests later determined he was the father.

In February 1994, the family law court awarded custody of T. to Maral, with visitation rights to George.   Maral refused to comply with the visitation order.

Maral made repeated allegations that George had sexually molested T. during his visits with her.   On one occasion, the doctors suspected pinworm was the cause of T.'s medical problems.   After an ambiguous report was received by DCFS from Kaiser Permanente concerning allegations of sexual abuse, DCFS recommended that T. see therapist Edith Hartoonian (whose role it would be to ascertain if such abuse had occurred).

In July 1994, George had a week's court-ordered visitation with T. Maral reported to the police that George had kidnapped T.

On July 28, or August 1, 1994, DCFS took custody of T., and placed her in the temporary custody of George.   On August 2, the dependency court awarded custody of T. to George;  Maral was present when that order was made.   Later that month, the family court advised Maral and George its jurisdiction was suspended while the dependency court matter was pending.   Maral understood the family court order was valid and she was supposed to obey it.   She also understood she was entitled to monitored visitation rights through DCFS.   She further believed she had sole custody rights over T. Between November 1994 and May 1995, DCFS would not let Maral visit T.   In May, while visiting T. at the DCFS office, Maral tried to take T. from the DCFS office to the police because T. told her that George had molested her.

The dependency court determined Maral had attempted to interfere in the parent-child relationship between George and T. and Maral had endangered T.'s emotional well-being.

On the morning of May 24, Maral appeared in court and heard the dependency court order that George continue to have custody of T. That same afternoon, Maral's brother, Vartan, called the police to tell them Maral and he were going to rescue T. from George.   Maral knew it was wrong to go to George's house to take T.

A week later, on May 31, Maral returned to George's home to get T. because she believed T. had been molested.   She returned to the residence later in the day and entered through the window she had broken on her first visit that morning.   She fought with Katheryn, but denied scratching her.   She admitted fighting with Vrej and trying to flee with T.   She intended to take T. and keep her from George and DCFS.   She knew the dependency court proceeding was still pending on May 31.

3. Rebuttal.

Edith Hartoonian was the child counselor who treated T. in 1994.   In her opinion, T. may have been subjected to sexual abuse, but it was not clear by whom.   There had not been enough counseling sessions to corroborate Maral's claims.

CONTENTIONS

Maral contends her conviction should be reversed and the matter returned to the trial court for determination of the validity of the dependency court order regarding custody.   The bases for this contention are:  (1) the lawfulness of the dependency court order is an element of the offense of which Maral was convicted and (2) the dependency court order may be collaterally attacked in criminal proceedings for child stealing.   Maral also contends the trial court erred when it denied her multi-pronged motions collaterally attacking the dependency court proceedings.

DISCUSSION

1. Proof of the crime of child stealing in violation of section 278 requires the prosecution to establish both that the perpetrator did not have a right to custody of the child and that the child was taken from someone with a lawful right to custody.

 Maral argues:  “only violation of a ‘lawfully issued’ custody order can be punishable as child stealing”;  the lawfulness of the custody order is a necessary element of the crime charged.   The People dispute this contention, arguing the prosecution need not prove the existence of a “lawful custody order,” but only that the child was taken from a person with “lawful charge.”   We determine that proof of a lawfully issued custody order is required on the facts of this case.

In absence of a court order or decree affecting custody, each parent has an equal right to custody of an unmarried minor child.  (Fam.Code, § 3010 (formerly Civ.Code, § 197);  Cline v. Superior Court (1982) 135 Cal.App.3d 943, 947, 185 Cal.Rptr. 787;  see Wilborn v. Superior Court (1959) 51 Cal.2d 828, 830, 337 P.2d 65.)   Thus, without more, one parent cannot be found guilty of taking custody of a child to the exclusion of the other parent.  (Cline v. Superior Court, supra, at p. 947, 185 Cal.Rptr. 787, citing Wilborn v. Superior Court, supra, at pp. 830-831, 337 P.2d 65.)

Former section 278 2 made criminal the taking, concealing or detaining of a child by one “ ‘not having a right of custody’ ” (People v. Johnson (1984) 151 Cal.App.3d 1021, 1024, 199 Cal.Rptr. 231) from someone “having the lawful charge of the child.”   At the time of the alleged offense, former section 278 provided:  “Every person, not having a right of custody, who maliciously takes, detains, conceals, or entices away, any minor child with intent to detain or conceal that child from a person, guardian, or public agency having the lawful charge of the child shall be punished by imprisonment in the state prison for two, three or four years, a fine of not more than ten thousand dollars ($10,000), or both, or imprisonment in a county jail for a period of not more than one year, a fine of not more than one thousand dollars ($1,000), or both.”  (Italics added.) 3

Thus, the prosecution has the burden of establishing both (1) the defendant has no right to custody at the time of the offense and (2) the child was taken from a person or from an agency having “lawful charge” of that child.  (§ 278;  People v. Johnson, supra, 151 Cal.App.3d at p. 1026, 199 Cal.Rptr. 231.)   Indeed, the prosecution recognized this as its burden by, among other things, introducing into evidence orders of the dependency court, including the order made the morning of the first attempted child stealing, May 24, 1994.   By each order the dependency court ordered that George have physical custody of the minor.   These orders were lawful on their face.

The People contend the validity of a dependency court order is not an element of proof.   In doing so the People draw a distinction between proof of a lawful dependency court order and proof of lawful charge of the minor.   The People assert that the latter can be proved-and the crime established-without establishing the lawfulness of the custody order.   While this statement is literally true, there is nothing in section 278 which precludes proof of the lawfulness of the custody of the child in the person from whom the child is taken by means of a valid custody order.

On the facts of this case, it is not possible for the People to establish Maral committed an act in violation of section 278 without establishing the lawfulness of the custody order.   Because Maral was the mother of the child, in absence of a court order depriving her of a right of custody she had equal right with George to exclusive custody of T. (Fam.Code, § 3010;  Cline v. Superior Court, supra, 135 Cal.App.3d at p. 947, 185 Cal.Rptr. 787;  People v. Johnson, supra, 151 Cal.App.3d at p. 1024, 199 Cal.Rptr. 231.)   The trial court prosecutor recognized as much and introduced the dependency court orders releasing T. in George's custody.4  On appeal, the People do not suggest how the express statutory condition of “lawful charge” of the child can be sustained in this case absent a valid dependency court order.

In Cline, the Court of Appeal granted defendant's petition for writ of prohibition restraining the trial court from proceeding upon those counts of the information which charged the defendant with child stealing and kidnapping.  Cline had argued on appeal that he could not commit either crime as a court had awarded him exclusive custody of his son.   The court agreed.  (Cline v. Superior Court, supra, 135 Cal.App.3d at pp. 945, 947, 185 Cal.Rptr. 787.)

The Attorney General apparently conceded in Cline that a valid court order affecting custody was important to resolution of the child stealing charge there at issue.  (Cline v. Superior Court, supra, 135 Cal.App.3d at p. 947, 185 Cal.Rptr. 787.) There has been no change in the language of the statute from that construed in Cline to account for the People's different position in this case.

People v. Beach (1987) 194 Cal.App.3d 955, 240 Cal.Rptr. 50, cited by the People, does not alter our analysis.   While it is accurate to state the Legislature did not write into the statute a requirement that a valid court order be proved to establish the crime of child stealing in violation of section 278, it did enact the predecessor of Family Code section 3010 and reenact that statutory provision when the Family Code was created.  Section 3010 gives exclusive right to custody to either parent in absence of other circumstances.   The case law has similarly provided for decades.  (See discussion in Wilborn v. Superior Court, supra, 51 Cal.2d 828, 337 P.2d 65.)   Suspension or termination of Maral's coextensive right with George to joint custody of T. could not occur without a valid court order first having been made.  (Accord People v. Irwin (1984) 155 Cal.App.3d 891, 896, 202 Cal.Rptr. 475 [in absence of an order or decree affecting physical custody, either parent has the right to take exclusive possession of the child].)

Nor does People v. Moses (1996) 43 Cal.App.4th 462, 50 Cal.Rptr.2d 665 require a different conclusion.   While in Moses violation of court order was held not to be an element of proof of another section regulating child stealing, section 278.5, Moses does not rule out the evidentiary use of a court order to establish that the person to whose care the minor is entrusted has “lawful charge” of the minor.

In short, while the statute does not mandate the existence of a valid custody order as an element of proof of the crime of child stealing as defined by section 278, the circumstances of this case required proof of such an order to meet the People's burden to establish essential elements of the crime.   It is the dependency court's order for physical custody of T. by George to the exclusion of Maral which made unlawful her attempt to take exclusive custody of her daughter.

2. Validity of the dependency court order can be challenged in a prosecution for child stealing under section 278.

 Maral contends she must have the right to challenge the validity of the dependency court order as part of her defense to the charge of child stealing in violation of section 278.   The People disagree, contending the order of the dependency court is final as the time for direct appeal has expired.   We conclude Maral is entitled to collaterally attack the dependency court order to protect her liberty interest.

On May 24, Maral was present in the dependency court during the discussion of the terms and conditions under which she would be allowed to see T. The issues of her visits, their location, who could be present and under what restrictions had been subjects of several hearings which she had attended-as well as the subject of numerous orders of that court on as many different occasions.   On each occasion the dependency court also entered an order continuing physical custody of T. in George.   The several orders represented a consistent pattern of limitation of Maral's contacts with T. and continued reaffirmation of the order reposing legal and physical custody exclusively in George.

Although Maral testified at trial she thought she had custody of T., she also testified she understood the dependency court's May 24, 1995 order, understood it was valid, and knew she was supposed to follow that order.   She also acknowledged the dependency court had placed T. in George's custody.   The trier of fact was entitled to disbelieve her testimony that she thought she had a right to custody.5

The People contend Maral cannot challenge the validity of the custody order in defending herself against a criminal charge.   In support of this argument the People assert:  (1) the sole means of challenging such an order is through direct appeal (pursuant to the provisions of Welf. & Inst.Code, § 395) and (2) Maral has waived any appellate review by failing to pursue that remedy.

 It is clearly established that the dependency court declaration of dependency at the disposition hearing and all subsequent orders are directly appealable.   There is no one final judgment rule in dependency proceedings;  orders entered after judgment are also appealable.  (Welf. & Inst.Code, § 395;  In re Meranda P. (1997) 56 Cal.App.4th 1143, 1149-1150, 65 Cal.Rptr.2d 913.)

 Yet, In re Meranda P. is inapposite in light of the procedural status of the dependency court proceeding at the time of issuance of the May 24, 1995 order.   By that date no disposition hearing had yet been held and no such order had been entered.6  In its decision in In re Meranda P., the court interprets a situation in which a disposition order already had been entered.  (In re Meranda P., supra, 56 Cal.App.4th at p. 1150, 65 Cal.Rptr.2d 913.)   No appeal can be taken from orders issued prior to the disposition hearing.  (Ibid.) 7

 It was established in section 1, supra, that there would be no violation of section 278 if the dependency court order had not been issued;  Maral's parental right would have entitled her to exclusive custody of T., setting aside any other criminal conduct which may have occurred.   In this section, we hold Maral may assert the invalidity of the dependency court's order in defense to a charge of attempted child stealing.   This holding finds support in People v. Gonzalez (1996) 12 Cal.4th 804, 50 Cal.Rptr.2d 74, 910 P.2d 1366.   There, our Supreme Court reaffirmed the long-established rule that “the defendant in a contempt proceeding in this state may challenge the validity of an injunction, the violation of which is the basis for the contempt prosecution, even if no such claim was made when the injunction issued.”   (Id. at p. 818, 50 Cal.Rptr.2d 74, 910 P.2d 1366.)   Such a challenge may be made whether the contempt is prosecuted under the provisions of Code of Civil Procedure section 1209 et seq. or Penal Code section 166.   (Ibid.;  In re Berry (1968) 68 Cal.2d 137, 148-149, 65 Cal.Rptr. 273, 436 P.2d 273;  McLaughlin v. Superior Court (1954) 128 Cal.App.2d 62, 65, 274 P.2d 745.) 8  As the Gonzalez court reaffirmed:  “The rule is well settled in California that a void order cannot be the basis for a valid contempt judgment.”  (Id. at p. 817, 50 Cal.Rptr.2d 74, 910 P.2d 1366.)

This rule, sometimes referred to as the “no collateral bar rule,” does increase the dangers of piecemeal derogation of superior court orders.   Our Supreme Court recognized that to be a substantial concern, but held that “it is one overbalanced by the need to protect the individual's interest in being free from the coercive effects of unconstitutional orders.”  (People v. Gonzalez, supra, 12 Cal.4th at p. 824, 50 Cal.Rptr.2d 74, 910 P.2d 1366.)

The very same principles which require application of the no collateral bar rule to criminal contempt (§ 166) and civil contempt (Code of Civil Proc., §§ 1209 et seq.) prosecutions mandate its application to section 278 allegations.   On balance it is necessary to do so to protect an accused's interest in being free of incarceration by reason of void orders.   The potential sanctions or consequences in both contempt and child stealing cases are substantially the same:  incarceration and/or fine.   We discern no difference between the elements or other aspects of these two penal provisions significant enough to warrant a different result.

In so concluding we recognized Maral could have chosen to follow the dependency court order and that she had been substantially recalcitrant and uncooperative throughout the dependency court proceeding, resulting in termination of her unsupervised visitation privileges, restriction of her visits with T. to the location of the DCFS office, the court imposing the requirement that all visits be monitored, barring other members of her family from visiting, and ordering that she not speak to her daughter in Armenian unless an Armenian speaking monitor were present.   The record is replete with examples of her recalcitrance and resistance to authority.   Notwithstanding her decided lack of cooperation and her unwise resort to “self-help” to remove her child from the custody of the child's father in violation of several orders of the dependency court, the no collateral bar rule reaffirmed in Gonzalez is well-established in our state's jurisprudence and applies in this case.

Respondent asserts that our holding improperly permits persons restrained by dependency court orders to relitigate those orders in their defense of criminal prosecutions.   The express legislative command of section 278 that the child be taken from a person having “lawful charge” of the child requires that we permit reexamination of the lawfulness of relevant dependency court orders in a subsequent criminal prosecution.   Respondent would have us reinterpret the phrase, “lawful charge,” as “apparent charge.”   We decline to do so.  “The judiciary is not a repair shop to streamline statutory structures․”  (United States v. Crocker National Corp. (9th Cir.1978) 656 F.2d 428, 456 (dis. opn. of Kennedy, J.).)   The correct forum for any change in the plain language of section 278 is the state Legislature.

Respondent also asserts that permitting a defendant to assert the invalidity of a dependency court order in a child stealing prosecution would send the wrong message to parents subject to such dependency court orders.   We do not condone acts in derogation of court orders.   A person who disobeys an order of a court by engaging in what is commonly referred to as “self-help” acts at his or her peril, exposing himself or herself to the risk of incarceration and monetary fine for so doing.   It is this potential sanction, rather than the procedural possibility that a challenge to a court order might be successful, that will deter disobedience to such orders.

Nothing in this opinion is properly construed to condone the conduct proved to have occurred in this case.   Words cannot express our abhorrence for the methods Maral used to express her “devotion” to her child.   Yet, however much we abhor her actions, we conclude that she cannot be denied the opportunity to assert the invalidity of the dependency court orders in the criminal proceeding.  (See Cline v. Superior Court, supra, 135 Cal.App.3d at p. 947, 185 Cal.Rptr. 787.)   A defendant faced with such a choice, who acts in an unlawful manner, does so at risk that conduct in violation of such orders will result in a substantial period of incarceration and monetary fine.   In this case, Maral did act at her peril and was convicted of two counts of child stealing, which carry state prison sentences of up to four years and a $10,000 fine for each conviction.   Maral was also charged with and convicted of criminal contempt which is punishable by a significant term in county jail and monetary penalties.

Respondent errs when it contends that either our Supreme Court's decision in Garcia v. Superior Court (1997) 14 Cal.4th 953, 59 Cal.Rptr.2d 858, 928 P.2d 572 or this court's decision in People v. Davis (1997) 57 Cal.App.4th 1404, 67 Cal.Rptr.2d 748, militates against applying the no collateral bar rule to the circumstances of the instant case.  Garcia held that, absent a statute permitting a challenge, a defendant charged with a non-capital offense does not have the right to collaterally attack a prior conviction for ineffective assistance of counsel.  (Garcia v. Superior Court, supra, at p. 968, fn. 2, 59 Cal.Rptr.2d 858, 928 P.2d 572.) Davis held that Garcia was to be applied retroactively.

Garcia is inapposite for the following reasons, among others:  (1) Garcia addressed a final judgment of conviction;  in the instant case the juvenile court had not yet held a dispositional hearing (viz., there had not been the dependency court corollary of a criminal court adjudication);  and (2) the express command of section 278 is that the minor must be taken from the “lawful charge” of the child's custodian, thus expressly making an issue for determination the validity of the custodian's charge and bringing the analysis within the statutory exception articulated in Garcia.   Nor is there merit in respondent's assertion that proof of the validity of a dependency court temporary custody order would consume any substantial portion of the district attorney's case-in-chief in a prosecution for a violation of section 278, just as it did not in the instant case.

3. [[/]]†/†

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. Subsequent statutory references are to the Penal Code unless otherwise indicated..  FN1. Subsequent statutory references are to the Penal Code unless otherwise indicated.

FOOTNOTE.  FN††<> See footnote *, ante.

2.   Maral was convicted of attempted child stealing.   That fact does not alter our analysis of the elements of the offense proscribed by section 278.

3.   In 1996 section 278 was amended to read as follows:  “Every person, not having a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals any child with the intent to detain or conceal that child from a lawful custodian shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.”  (Stats.1996, ch.   988 (A.B.2936), § 9.)The principal change was to replace the clause “from a person, guardian, or public agency having the lawful charge of the child” with the phrase “from a lawful custodian.”   The requirement that the custody be lawful was expressly reenacted in the new statute.

4.   The same orders make clear Maral's parental rights were suspended by order of the dependency court.   Maral's right of access to T. changed from order to order.   The record indicates why:  Maral was uncooperative and difficult.   The May 24, 1995 order granted Maral visits with T. only if those visits were held at the office of the Department of Children's Services, her brother were not present, and she had first participated in an Evidence Code section 730 evaluation.   Further, she was not to speak to T. in Armenian unless an Armenian speaking monitor were present.   Maral's lack of right to custody could not be more clear-if the dependency court orders are valid.If valid, the dependency court orders establish both that George is to have custody of T. and Maral has no right of custody;  indeed, she has the privilege rather than the right to visit T.-and only under severely circumscribed conditions.

5.   The People argue that Maral acknowledged the lawfulness of the dependency court custody order.   Maral's view of the validity of the order does not establish its true legal status;  nor, for the reasons discussed in the text, infra, does it constitute a waiver of her right to claim on appeal that the order was invalid.

6.   None of the dependency court documents which are trial exhibits is a disposition hearing order.   The evidence admitted at trial indicates no disposition hearing had been held prior to the conduct alleged in the information.   To confirm that conclusion, this court has obtained-and takes judicial notice of-the dependency court file.  (Evid.Code, § 452, subds. (c) and (d).)   The disposition hearing was held on June 26, 1995, almost a full month after the last of the events in issue in this proceeding.   A disposition order bearing that date and containing disposition orders is contained in the dependency court file.

7.   Considering our holding, infra, that she may challenge their lawfulness in her defense of the criminal contempt and child stealing charges, it is not necessary to determine whether Maral could have sought review of the dependency court orders regarding custody and visitation which were made prior to the dispositional hearing by filing an extraordinary writ proceeding.  (See, e.g., Welf. & Inst.Code, § 395;  California Rules of Court, rules 39.1B, 1436 and 1436.5.)

8.   Count X of the information in this case charges a violation of section 166, subdivision (a)(4).  People v. Gonzalez, supra, makes clear Maral may assert the invalidity of the dependency court order as a defense to that charge.   As we explain in the text, infra, we discern no policy reason why Maral may not assert the same defense to the child stealing charges.

FOOTNOTE.  FN†† See footnote *, ante.

GOODMAN, J.*** FN*** Assigned by the Chairperson of the Judicial Council.

CROSKEY, Acting P.J., and ALDRICH, J., concur.

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