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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Gene Martin HOWARD, Defendant and Appellant.

Cr. 13151.

Decided: February 16, 1983

Philip Schmidt, Laguna Niguel, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Harley D. Mayfield and M. Howard Wayne, Deputy Attys. Gen., for plaintiff and respondent.

Gene Martin Howard (Gene) appeals the order granting probation (Pen.Code, § 1237)1 after a jury convicted him of child stealing in violation of section 278.5.2  His claim of instructional error has merit and we reverse the judgment.

An interlocutory judgment dissolving the six-year marriage of Gene and his wife Pamela was filed in July 1978.   Under the judgment, Pamela had custody of their two children, five-year-old Ryan and two-year-old Chad, subject to Gene's visitation rights.   Within a few months, they tried to reconcile.   For about one and a half years they lived together, resumed marital relations, held themselves as husband and wife, used a joint checking account and bought a waterbed together on their joint credit.

Gene testified he went to Colorado in June 1980 to attend his brother's funeral.   Pamela said Gene's departure in June or July 1980 reflected their final split-up.   In the latter part of July, Gene called from Colorado threatening to take the children without Pamela's permission.   After that telephone conversation, Pamela requested entry of the final judgment of dissolution.   Under penalty of perjury, Pamela declared on July 14, 1980 that “Since entry of the interlocutory judgment, [they] have not become reconciled ․” a declaration which she testified was untrue.   Upon her request the final judgment was entered.

A couple of weeks later, Gene returned to California.   While Pamela was at work, Gene went to the home of the children's babysitter saying he wanted the children for an hour or so.   Instead he took them to Colorado, where he hid out refusing to answer Pamela's calls or to allow the children to contact her.   Eventually he was arrested and returned to California.

 In responding to the problems of child custody and abduction both during and after the dissolution of a marriage, the Legislature enacted section 278.5 even though it recognized some parents who “steal” their own children do so because they sincerely believe what they are doing is in the best interests of the child.  (See McDonald and Noll, Review of Selected 1976 California Legislation (1977) 8 Pac.L.J. 315, 316–318.)   Accordingly, whether a parent acts in good faith or has a sincere motive in detaining a child contrary to a custody order is irrelevant in a prosecution brought under section 278.5.   Nonetheless, the Legislature made the first portion of the offense (see fn. 2, ante;  compare People v. Lortz (1982) 137 Cal.App.3d 363, 369, 187 Cal.Rptr. 89) a specific intent crime requiring the People to not only prove a person took, or retained, or concealed a child from his legal custodian after the expiration of a visitation period in violation of a custody order relating to such child, but the person took or retained or concealed such child with the intent to deprive the legal custodian of the right to custody.   (See CALJIC No. 9.40.5.)   Thus, to support a conviction under section 278.5 the People must prove a defendant acted with the specific intent of depriving a person of custody with the knowledge the person having custody is the legal custodian.   Absent that knowledge a defendant cannot harbor the requisite intent.3

 Here, the People proved Pamela was the legal custodian under the interlocutory judgment of dissolution.   But Gene's understanding of the status of his dissolution with its custody order was crucial to his defense.   If the jury determined he had the belief, even though mistaken, that his attempt at reconciliation vitiated the judgment of dissolution it could not find him guilty of violating section 278.5.  “The distinction sometimes stated between inexcusable ignorance of law and excusable mistake of law has little substance.   It is simply an easy way of describing the exceptional situations in which ignorance of the actual law—or mistaken belief that the law is something other than it is—may be considered as a defense.  [Citations.]  Normally the mistake will be a belief in some legal right to do the act under a law or legal doctrine distinct from the criminal statute which is being violated.  [Citation.]  In any case, however, the defendant's mistaken belief must be honest, although it need not necessarily be reasonable.  [Citation.]  [¶] One situation is fairly clear:  If the crime requires specific intent, mistake of law may negative that intent.”  (1 Witkin, Cal. Crimes (1963) § 149, p. 143;  see also People v. Stewart (1976) 16 Cal.3d 133, 139, 127 Cal.Rptr. 117, 544 P.2d 1317.)

 Here, Gene understandably wanted the jury to focus on his mistake of law and requested the court give CALJIC No. 4.35 4 and his tailored instruction on the effect of his reconciliation on the judgment.5  Although the instructions were both technically defective,6 the court nonetheless had the duty to make the appropriate corrections to those instructions to cover the issue properly before the jury.  (§ 1093, subd. 6;  People v. Stewart, supra, 16 Cal.3d at pp. 139–140, 127 Cal.Rptr. 117, 544 P.2d 1317.)   In failing to do so, the court erred.   We conclude this error when considered with the trial court's earlier erroneous evidentiary ruling 7 which prevented Gene from giving his opinion, his state of mind, on the status of his dissolution, resulted in a miscarriage of justice.

Judgment reversed.


1.   All statutory references are to the Penal Code unless otherwise specified.

2.   Section 278.5 in pertinent part states:“(a) Every person who in violation of a custody decree takes, retains after the expiration of a visitation period, or conceals the child from his legal custodian ․ and who detains or conceals such child with the intent to deprive the other person of such right to custody ․ shall be punished by imprisonment in the state prison ․ or ․ in a county jail ․ or both.”The information charged:“․ GENE MARTIN HOWARD did willfully, unlawfully and feloniously, in violation of a custody order, take, retain and conceal minor children, to-wit:  RYAN A. HOWARD, born May 18, 1973, and CHAD M. HOWARD, born August 18, 1976, from PAMELA D. HOWARD, the person having the right to legal custody of such children with the intent to deprive said PAMELA D. HOWARD with the right to custody of such children.”

3.   This concept is consistent with the well-established principle that a court may not punish for contempt for violation of an order unless the person has knowledge of the order.  (See Warner v. Superior Court (1954) 126 Cal.App.2d 821, 824, 273 P.2d 89.)

4.   CALJIC No. 4.35 provides:  IGNORANCE OR MISTAKE OF FACT“An act committed or an omission made under an ignorance or mistake of fact which disproves any criminal intent is not a crime.“Thus a person is not guilty of a crime if he commits an act or omits to act under an honest and reasonable belief in the existence of certain facts and circumstances which, if true, would make such act or omission lawful.”

5.   The tailored instruction was as follows:“A husband and wife who are separated have reconciled when the facts show that they intended to reconcile.   If reconciliation has occurred the duration of the reconciliation is of no consequence and it is irrelevant that the parties separated again.”

6.   The latter instruction does not square with the applicable law because the evidence must show the parties “․ mutually intend to reunite permanently as husband and wife ․ and there is an unconditional forgiveness by the prevailing party.”  (Cochran v. Cochran (1970) 13 Cal.App.3d 339, 347, 91 Cal.Rptr. 630.)   Although CALJIC No. 4.35 is entitled “Ignorance or Mistake of Fact,” the court recognized Gene requested the instruction on mistake of law.   The court wrote on the instruction—“mistake of law denied.”   Each of these instructions could have readily been modified to comport with the law.

7.   During the trial, Gene responded to a question by his counsel:“Well, we had reconciled;  and I didn't think it [the judgment] was valid.“THE COURT:  I'm going to—on the court's own motion, I'm going to strike it as an opinion, a legal opinion;  and you're not to consider that, ladies and gentlemen, for any purpose whatever.”After that question, the prosecutor successfully objected to defense counsel's question pertaining to Gene's state of mind on the custody order.

WIENER, Associate Justice.

GERALD BROWN, P.J., and BUTLER, J., concur.