People v. Jo
224 Cal. Rptr. 3d 82
Cal. Ct. App. 5th
2017

Background

  • Defendant Nan Hui Jo left California in 2009 with her 13‑month‑old daughter V., traveled to South Korea, and did not participate in family‑court proceedings initiated by the father (J.C.); she returned to the U.S. in 2014 and was arrested.
  • Prosecutor charged Jo with child custody deprivation (Pen. Code § 278.5) alleging she maliciously deprived a lawful custodian of custody/visitation between 2009–2014; Jo maintained she lacked malice and the prosecution failed to prove elements.
  • At the second jury trial the court used a modified CALCRIM No. 1251 (malicious = intentionally does a wrongful act), gave CALCRIM No. 1252 (statutory §278.7 “good faith” defense) over defense objection, and instructed with CALCRIM No. 250 for union of act/intent (rather than CALCRIM No. 251).
  • The prosecution presented a retired DA expert who testified about §278.7; the defense presented an expert on domestic‑violence victims. The jury convicted; sentence reduced to misdemeanor and probation; defendant appealed.
  • Key appellate disputes: whether the court erred in (1) using CALCRIM No. 250 instead of No. 251, (2) instructing with CALCRIM No. 1252 over defense objection, (3) answering jury questions about the relation of §278.5 and §278.7 and refusing a pinpoint instruction, (4) admitting expert testimony about §278.7 and alleged prosecutorial misconduct; also challenges to juror removal, unanimity/election, and sufficiency of malice evidence.

Issues

Issue People’s Argument Jo’s Argument Held
Whether union‑of‑act/intent instruction was proper (CALCRIM 250 v. 251) Error harmless; jury was told intention and wrongful act and evidence proved malice beyond a reasonable doubt Court should have given CALCRIM 251 because malice is a specific mental state Court erred in using CALCRIM 250 but the error was harmless beyond a reasonable doubt (no prejudice)
Whether court should have given CALCRIM No. 1252 (statutory §278.7 defense) over defense objection Instruction appropriate because trial evidence (domestic violence testimony) made the statutory defense relevant and jurors needed context Instruction was an inconsistent affirmative defense not asserted by Jo and improperly shifted/invited burden issues; court should not give an inconsistent defense over objection Giving CALCRIM 1252 over objection was error (court should not impose an inconsistent affirmative defense), but error was harmless beyond a reasonable doubt on these facts
Whether court adequately answered jury questions and should have given defendant’s requested pinpoint instruction (clarifying §278.7 is only one way to negate malice) Supplemental answers and CALCRIM 200 sufficed; jury repeatedly told People bear burden beyond reasonable doubt Court should have given pinpoint instruction to prevent confusion and avoid implying §278.7 was exclusive way to negate malice Trial court’s supplemental responses and other instructions adequately conveyed the prosecution’s burden; refusal to give the pinpoint instruction was not reversible error
Admissibility of DA‑expert testimony on §278.7 and claims of prosecutorial misconduct; juror removal; election/unanimity; sufficiency of malice evidence DA‑expert’s overview of §278.7 assists jury, did not state legal conclusions; any prosecutorial arguments were forfeited; no election/unanimity required because §278.5 is continuous; juror removal was proper; evidence of malice was overwhelming Expert improperly opined on law; prosecutor mischaracterized §278.7; excusing juror and not giving election/unanimity instruction harmed Jo; evidence insufficient for malice Admissibility: trial court did not abuse discretion—expert may explain statutory scheme without resolving legal questions. Misconduct claims forfeited. Continuous‑conduct statute means no election/unanimity was required. Juror removed properly for refusal to follow instructions. Substantial evidence supports malice.

Key Cases Cited

  • People v. Neidinger, 40 Cal.4th 67 (Cal. 2006) (interprets interaction between §278.5 malice element and §278.7 ‘‘good faith’’ defense; allocates burden for raising the defense)
  • People v. Mehaisin, 101 Cal.App.4th 958 (Cal. Ct. App. 2002) (concludes §278.7 requires compliance with reporting/custody provisions modeled on necessity defense)
  • People v. Sedeno, 10 Cal.3d 703 (Cal. 1974) (limit on sua sponte duty to instruct on defenses; court should not instruct on defenses inconsistent with defense theory without checking with defendant)
  • People v. Breverman, 19 Cal.4th 142 (Cal. 1998) (reaffirms Sedeno’s distinction re: sua sponte instructions; discusses lesser included offenses vs defenses)
  • People v. Barton, 12 Cal.4th 186 (Cal. 1995) (addresses giving lesser included instructions over defendant’s objection and policy considerations)
  • People v. Anderson, 51 Cal.4th 989 (Cal. 2011) (explains when trial court must sua sponte instruct on principles relevant to evidence; distinguishes negating elements from asserting defenses)
  • Chapman v. California, 386 U.S. 18 (U.S. 1967) (requirement that federal constitutional error be harmless beyond a reasonable doubt)
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