Return to CALJIC Part 9-12 – Contents
F 9.71.5a
Defense Theory: Good Faith Reasonable Belief Of
Harm To Child Negates Malice
*Add to CJ 9.71.5:
A person who takes a child under a good faith and reasonable belief that the child will otherwise suffer immediate bodily or emotional harm does not act maliciously. However the defendant has no burden of proving that he/she had this good faith and reasonable belief. Instead, the prosecution must prove that he/she acted maliciously and not as a result of such a good faith and reasonable belief.
Any juror with a reasonable doubt whether the prosecution has met this burden must vote for acquittal.
ALTERNATE INSTRUCTION:
In the crime of child abduction of which the defendant is accused, a necessary element is that the defendant took the child maliciously.
Any evidence that the defendant had a good faith and reasonable belief that the child would have suffered immediate bodily injury or emotional harm if not taken should be considered by you in determining whether defendant took the child maliciously.
If from all the evidence you have a reasonable doubt whether the defendant acted maliciously, you must find that [he] [she] did not do so and find him or her not guilty of child abduction.
[Adapted from CJ 4.21.]
Points and Authorities
PC 278.5(a) makes it a crime to maliciously deprive a lawful custodian of a child of the right to custody of that child. PC 278.7(a) provides a defense to 278.5(a) if the defendant has a good faith and reasonable belief that the child, if left with the custodian, will suffer immediate bodily injury or emotional harm. People v. Neidinger (2006) 40 C4th 67 reversed because the court gave the jury CJ 9.71.5, which says that the defense has the burden of showing the defense by a preponderance of the evidence. In Neidinger, the defense did not argue that the good faith belief defense per PC 278.7(a) is a traditional element that cannot be made an affirmative defense. (Id. at 74.) However, since this defense negates malice, the defendant need only raise a reasonable doubt about it. (Id. at 78-79.)
Although it is ordinarily prudent for a trial court to instruct in accordance with CALJIC, the court nonetheless remains obligated to give a correct instruction. “A trial court must instruct the jury on the allocation and weight of the burden of proof [citations], and, of course, must do so correctly. It must give such an instruction even in the absence of a request [citation], inasmuch as the allocation and weight of the burden of proof are issues that ‘are closely and openly connected with the facts before the court, and … necessary for the jury’s understanding of the case’ [citation].” (People v. Mower (2002) 28 C4th 457, 483-484.) “Included within this duty is the ‘ … obligation to instruct on defenses, … and on the relationship of these defenses to the elements of the charged offense …’ where ‘… it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense … .’ [Citation.]” (People v. Stewart (76) 16 C3d 133, 140; see also FORECITE PG V(A)(6).)
The defendant has the right to “‘direct attention to evidence from … which a reasonable doubt could be engendered.’ [Citation].” (People v. Hall (80) 28 C3d 143, 159; People v. Sears (70) 2 C3d 180, 190.) Hence, the defendant may obtain a pinpoint instruction which relates “his [evidentiary theory] to an element of the offense.” (People v. Saille (91) 54 C3d 1103, 1120; see also, People v. Wharton (91) 53 C3d 522, 570; People v. Wright (88) 45 C3d 1126, 1136-37 [pinpoint instruction proper if it is predicated upon defendant’s theory].)
Because this instruction relates a theory of the defense to an element of the charge, it should also relate the burden of proof to the issues addressed. (EC 502; People v. Simon (95) 9 C4th 493, 500-01 [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; People v. Adrian (82) 135 CA3d 335, 342; see e.g., CJ 2.92, CJ 4.30, CJ 4.50, CJ 5.15; see also FORECITE PG III(D)&(E).) Also, because the prosecution has the burden to prove the charge beyond a reasonable doubt, it is a given that any evidence which leaves the jury with a reasonable doubt as to any element of the charge requires acquittal. (See, e.g., CJ 2.40.)