People v. CoulthardPeople v. Coulthard
On appeal, Coulthard raises six claims of error. He contends there was insufficient evidence for his conviction, his prosecution violated the prohibition against ex post facto laws, the trial court violated his rights to due process and to present a defense, the remote, two-way audio/video testimony of the child‘s mother violated his confrontation rights, and the cumulative effect of the asserted errors requires reversal of his conviction.
For the reasons explained below, we affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural History
In April 2020, the Santa Clara County District Attorney filed an information charging Coulthard with a single count of felony child abduction of M.C. on or about and between April 16, 2019, and August 14, 2019 (
In September 2021, the jury found Coulthard guilty as charged.
In January 2022, the trial court suspended imposition of sentence and placed Coulthard on probation for two years with various conditions.
Coulthard timely appealed.
B. Evidence Presented at Trial
1. Prosecution Evidence
Coulthard and Marie Coulthard married in July 2010.3 Their child, M.C., was born in February 2011. In 2014, while living in the United Kingdom (UK), Coulthard and Marie separated. They divorced in 2015. Coulthard subsequently married a woman who lives in the United States and moved to Campbell, California.
In the initial UK family court proceedings (which began in 2014), a judge ordered that M.C. should live with Marie and granted visitation to Coulthard. In December 2017, Coulthard initiated a proceeding in the UK family court and requested that M.C. be allowed to live with him (in England) instead of with Marie. After holding a hearing, on December 20, 2017, a UK family court judge ordered that M.C. should continue to live
Twice prior to April 2019, the UK family court allowed Coulthard to take M.C. to the United States for visits. At the end of those visits, Coulthard returned M.C. to the UK. In April 2019, pursuant to the December 2017 custody order and with Marie‘s agreement, M.C. traveled to the United States with Coulthard for a visit scheduled from April 5, 2019, to April 16, 2019.5
On April 16, Marie received an e-mail from Coulthard stating that he would not be bringing M.C. back to the UK. Marie did not give Coulthard permission to keep M.C. in the United States beyond April 16. After receiving Coulthard‘s email, Marie contacted her attorneys, petitioned the UK “High Court,” and, on April 17, obtained an emergency order from the High Court for the return of M.C. to the UK (hereafter the return order).6
On the morning of April 24, a Campbell Police Department officer served Coulthard with the return order at a residence in Campbell. When serving the return order, the officer explained to Coulthard some of the information in it, including that he had until April 26 to return M.C. to the UK. The officer also told Coulthard, “At that point [M.C.] would be deemed a ward of the court and all passports with her name will be surrendered. And if [Coulthard] failed to do so [(i.e., return M.C.)] by that time, that he would be held in contempt of the court, imprisoned, fined, and his assets could be seized.” The officer testified that the return order itself indicated service on Coulthard was required by April 20, but the officer did not receive the order until April 24.
M.C. was not returned to the UK in April, and Marie did not have any contact with M.C. from April 5 through August 14. The Campbell Police Department investigated M.C.‘s abduction and surveilled the residence in Campbell. On July 24, a police officer observed Coulthard leave the home and return with M.C.
Marie arrived in the United States on August 13. On August 14, the police recovered M.C. while she was at a school district office for testing and reunited her with Marie. That same day, the police arrested Coulthard.
2. Defense Evidence
Coulthard testified as the only defense witness. Coulthard said that he had lived in Mauritius from May 2010 to August 2011. He met Marie there and married her in July 2010. Coulthard explained that their relationship “started to get[] sour when [Marie] was one month into her pregnancy” with M.C. He said Marie‘s “lies started being quite clear.” She “had extreme temper tantrum problems,” but he “could not leave her” and “would not leave her. She was pregnant. [He] was not going to leave [his] daughter.”
M.C. was born in Mauritius in February 2011, and Coulthard moved back to the UK in August 2011. One year later, Marie moved to the UK on a spousal visa. Marie brought M.C. with her to the UK. Subsequently, Coulthard declined to sign Marie‘s application for an extended visa because “[s]he had been abusing” him and M.C. “for 16 months” and “[t]hreatening to make false allegations against [him] if [he] did anything to stop her [from] getting her ten-year visa.” In 2014, without notice to Coulthard, Marie obtained a temporary restraining order against him. However, a permanent order “was dismissed.” Around the same time that she sought the restraining order, Marie submitted a UK visa application based on alleged domestic violence victimization. Although she obtained such a visa, it subsequently was revoked.
Coulthard testified that he believed the UK family court‘s December 2017 custody order had been fraudulently obtained because Marie‘s “2014 residency permit [] had been
On April 15, from California, Coulthard sent an e-mail to Marie explaining that he was not going to return M.C. to the UK. On April 24, the police served Coulthard with the return order, which was four days after the order should have been served according to its terms. Coulthard described the return order as based on a Marie‘s “fraudulent, no-notice, ex parte application.” He also said that it “was impossible” for him to comply with the return order by the designated date.
Coulthard contacted a solicitor in the UK on April 22 and spoke to the solicitor four days later. The “purpose of the discussion” was “to talk about the validity of the Hague Convention and [Coulthard‘s] grounds to retain [M.C.]”7 The solicitor informed Coulthard of two options for responding to the return order: engaging in the Hague Convention process that Marie had initiated or returning to the UK with M.C. Coulthard decided to pursue the option that related to the Hague Convention. He did not engage in the other option given the timing of the service of the return order and the potential for arrest if he returned to the UK with M.C. after the designated date.
Coulthard appealed the return order in the UK, and the case was referred to “an authority known as ICACU.” Thereafter, a May 3 court order “adjourned [Marie‘s] application to have [M.C.] returned.” Coulthard understood this to mean that the return order was no longer in effect. He also believed that Marie failed to follow through on a May 7 application she made to the ICACU. He asserted that Marie discontinued her
On cross-examination, Coulthard testified that during the December 2017 hearing in the UK family court, he told the judge about his concern that Marie did not have a valid domestic violence visa. Coulthard acknowledged that between the date of the December 2017 custody order and the beginning of M.C.‘s visit in April 2019, he did not apply to modify or change the custody order, and he had never challenged the custody order. He also acknowledged he had agreed with Marie to return M.C. to the UK by April 17 and that in failing to return M.C. to Marie, he had violated the December 2017 custody order. He stated further that when he was arrested in August 2019, he was not aware of the potential criminal consequences of retaining M.C. in violation of the December 2017 custody order.
Coulthard said he married his second wife in August 2017. Between February and March 2018, he decided to live with her in Campbell; she applied on his behalf for a conditional green card. Shortly before M.C.‘s April 2019 visit, Coulthard learned that he had been approved by the United States for an unconditional green card.
Coulthard acknowledged that the UK court‘s return order stated he had a right to ” ‘seek legal advice’ ” and warned that ” ‘[t]his right does not entitle [him] to disobey any part of this order until [he] ha[s] sought legal advice.’ ” He understood the return order to mean “[t]hat it‘s important to get legal advice. I‘ve got the right to legal advice. But I also need to obey what‘s been asked in it, in this civil court order, yes.”
Coulthard testified further that he “talked to a specialist on the Hague Convention who said that America was obliged to stick to the rules of the Hague Conventions. And that means you have to give me the right to show my good faith reasons to retain [M.C.], and that never happened.” When asked if he “thought there were no criminal consequences for [his] unlawful retention of [M.C.] here in the United States,” Coulthard answered, “I had not committed a criminal offense; so, of course, that‘s what I believed.”
Coulthard testified that, based on M.C.‘s report of abuse by Marie, he decided to keep her in the United States for her protection. He acknowledged that in his April 2019 e-mail to Marie, he said that Marie could send letters to M.C., but he would ” ‘check any message’ ” she sent and only give them to M.C. ” ‘if appropriate.’ ” Coulthard also admitted that he and his wife (an elementary school teacher and a mandated child-abuse reporter) did not contact any child protective services agency, adding, “We did not want to retraumatize [M.C.] by doing that.”
II. DISCUSSION
In this appeal, Coulthard contends: (1) because the UK court‘s return order was never registered with a California court, that order has no force in California and there is no substantial evidence that he lacked a right of custody to M.C.; (2) because the Santa Clara County District Attorney sought to enforce orders of a foreign court, his prosecution for violating those orders violates the prohibition against ex post facto laws; (3) the district attorney‘s effort to enforce a foreign court order without complying with federal law violated his due process rights; (4) the trial court violated his right to present a defense; (5) the trial court violated his confrontation right when it allowed Marie to testify remotely and without first holding a hearing; and (6) the cumulative effect of the asserted errors requires reversal of his conviction.
We address Coulthard‘s claims in turn.
A. Sufficiency of Evidence for Conviction Under Section 278
Coulthard asserts that for him to be convicted under
The Attorney General responds that any lack of registration pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (
1. Legal Principles
When reviewing the evidence for legal sufficiency, our task is limited. We determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) We make this determination using the statutory language (see People v. Delgado (2013) 213 Cal.App.4th 660, 667), because “the plain language of our statute must control as to the acts which constitute the crime.” (People v. Descheneau (1921) 51 Cal.App. 437, 439, citing People v. Barry (1892) 94 Cal. 481; see also People v. Arias (2008) 45 Cal.4th 169, 177.) We apply de novo review to the meaning of statutory language. (People v. Posey (2004) 32 Cal.4th 193, 218.)
We further determine whether the entire record ” ‘contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable
2. Analysis
We are not persuaded that Coulthard‘s conviction for a violation of
The evidence demonstrated that, as of April 17, Marie was M.C.‘s lawful custodian, as that term is defined in
The evidence further established that the UK family court that issued the December 2017 custody order is a “a court of competent jurisdiction.” (
The trial evidence further showed that the December 2017 custody order affected the “custody or visitation” of M.C. and was issued by the UK family court “in the context
In accordance with the directives in the December 2017 custody order, Marie agreed to M.C.‘s April 2019 trip to the United States with Coulthard for the period of April 5 to April 16. Further, regarding the conditions governing M.C.‘s trip, Coulthard admitted at trial that he had agreed with Marie to return M.C. to the UK by April 17 but did not do so. He also admitted that he had violated the December 2017 custody order by retaining M.C. beyond April 17. Thus, all the requirements for proving that Marie was the lawful custodian of M.C. and Coulthard maliciously kept or withheld M.C. with the intent to detain or conceal her from Marie were satisfied by substantial evidence.
Relatedly, there is substantial evidence proving that Coulthard had no ” ‘right to custody’ ” (
Furthermore, we reject Coulthard‘s argument that his conviction is unsupported because “[n]o evidence was presented that the [return order] was registered in California.” The status of the return order does not affect the substantiality of the evidence against Coulthard. Coulthard‘s guilt is sufficiently supported by the December
In any event, the lack of registration in California of either the December 2017 custody order or the return order under the UCCJEA is immaterial to the question of whether the district attorney satisfied the elements of
“The UCCJEA determines the proper jurisdictional situs as between interested states for litigation of child custody determinations—which includes virtually any custody or visitation dispute.” (In re Marriage of Kent (2019) 35 Cal.App.5th 487, 493; see also In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 491.) A foreign country is treated as if it were a state of the United States for purposes of applying certain provisions of the UCCJEA, and a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of the UCCJEA must be recognized and enforced in California unless the foreign country‘s child custody law violates fundamental principles of human rights. (
The UCCJEA affords certain powers to district attorneys, but the Family Code makes clear that those powers do not limit the authority of district attorneys in other
The issue of Coulthard‘s guilt or innocence under
We thus conclude that, under
In sum, the evidence here proved that, under the terms of
B. Ex Post Facto and Due Process Right to Notice
Coulthard contends that “[e]ven if this Court were to hold that an unregistered foreign court order is a valid custody order for the purposes of [section] 278, the conviction still must be vacated [because] it violates the prohibition against ex-post facto laws.” He asserts that “[t]here is no reasonable interpretation of [section] 278 that would put [him] on notice that violating an order of a court of the United Kingdom, that has never been registered with any Court in the United States, could subject him to criminal penalties in this country.”
“The basic principle that a criminal statute must give fair warning of the conduct that it makes a crime has often been recognized by [the United States Supreme] Court.” (Bouie v. City of Columbia (1964) 378 U.S. 347, 350–351.) That constitutional protection is one based on due process principles, not the Ex Post Facto Clause. “Although ‘limitations on ex post facto judicial decisionmaking are inherent in the notion of due process,’ the due process clause does not require the application of strict ex post facto principles in the context of judicial decisionmaking. [Citation.] Rather, judicial decisions are reviewed under ‘core due process concepts of notice, foreseeability, and, in particular, the right to fair warning.’ ” (People v. Sandoval (2007) 41 Cal.4th 825, 855, quoting Rogers v. Tennessee (2001) 532 U.S. 451, 456, 459 (Rogers).)
On the other hand, the Ex Post Facto Clause prohibits “[a]ny law that applies to events occurring before its enactment and which disadvantages the offender either by altering the definition of criminal conduct or increasing the punishment for the crime.” (People v. Rojas (2015) 237 Cal.App.4th 1298, 1306; see
To the extent that Coulthard relies on the Ex Post Facto Clause to support his claim of error, we reject his contention because he fails to show any legislative change to
We also reject Coulthard‘s due process argument that “no reasonable interpretation” of
Because it was entirely foreseeable under the terms of
C. Due Process and Federal Law Preemption
Coulthard contends that “[a]ny enforcement of a foreign court[‘]s unregistered custody order, without following the Hague Convention[‘]s notice and procedure requirements, violates the Supremacy Clause of the United States Constitution” and is preempted by federal law. In addition, Coulthard asserts that because this case is governed by the provisions of the Hague Convention, his due process rights were “violated when he did not receive a hearing prior to M.C.‘s removal” (capitalization omitted) and “the only appropriate remedy is that the charges against [him] be dismissed.”
“The Hague Convention provides a legal mechanism for the prompt return of a child taken by one parent across international borders in violation of the other parent‘s custodial rights. [Citations.] A petitioner under the Hague Convention bears the burden of proving the child‘s wrongful removal or retention by a preponderance of the evidence. [Citation.] If the petitioner succeeds in showing a wrongful removal, the Hague Convention requires repatriation of the child to its country of habitual residence unless an exception to repatriation exists. [Citation.] One exception is that the child‘s repatriation presents a grave risk of physical or psychological harm to the child. [Citation.] This exception must be established by clear and convincing evidence.” (In re Marriage of Emilie D.L.M. & Carlos C. (2021) 64 Cal.App.5th 876, 881–882.) Furthermore, “[i]t is the Convention‘s core premise that ‘the interests of children . . . in matters relating to their custody’ are best served when custody decisions are made in the child‘s country of ‘habitual residence.’ ” (Monasky v. Taglieri (2020) ___ U.S. ___ [140 S.Ct. 719, 723].)
Regarding preemption, Coulthard contends that “[t]he application of [section] 278, without following Hague Convention procedure would result in obstacle preemption.” Under the principle of obstacle preemption, “a state may not adopt laws impairing ‘the accomplishment and execution of the full purposes and objectives of Congress.’ ” (People v. Rinehart (2016) 1 Cal.5th 652, 660.) “In ascertaining whether preemption applies, ‘[c]ongressional intent is the touchstone.’ [Citations.] Obstacle preemption can play an important role in preventing states from creating, inadvertently or otherwise, functional impediments that materially constrain legitimate federal objectives. But it can also lead to the overzealous displacement of state law to a degree never contemplated by Congress. Accordingly, the threshold for establishing obstacle preemption is demanding: ‘It requires proof Congress had particular purposes and objectives in mind, a demonstration that leaving state law in place would compromise those objectives, and reason to discount the possibility the Congress that enacted the legislation was aware of the background tapestry of state law and content to let that law remain as it was.’ ” (Id. at p. 661; see also Guardianship of Ariana K. (2004) 120 Cal.App.4th 690, 706 (Ariana K.) [“A treaty may be not be construed as preempting state law or any court procedures in the absence of a clear intent to do so.“].) Coulthard “bears the burden of demonstrating preemption.” (Rinehart, at p. 660.)
Coulthard‘s preemption argument depends on the premise that the Hague Convention and
By contrast, California‘s longstanding criminal prohibition against child abduction in
Given the distinction between the purposes of the Hague Convention and California‘s penal law, we conclude that Coulthard has not carried his burden of establishing congressional purposes and objectives that require our state‘s penal law be displaced by the Convention. Because the Hague Convention does not preempt or govern the criminal prosecution of Coulthard, we also reject Coulthard‘s claim that he was denied due process because he did not receive a hearing pursuant to the Hague Convention.
D. Right to Present a Defense
Coulthard contends that the trial court denied his constitutional right to present a defense by: (1) failing to give him “a Hague Convention hearing” which “would have provided him defenses that are otherwise not available” and “would have also allowed him to elicit testimony to be used in his defense“; (2) denying him an opportunity to show that the laws of the UK granted him a right to custody; and (3) foreclosing him from proving his innocence based on the necessity to protect M.C. from harm. We address Coulthard‘s contentions in turn.
1. Hague Convention Hearing
In the trial court, Coulthard did not request a separate hearing under the Hague Convention to present evidence about the alleged grave risk of harm posed by M.C.‘s return to Marie and M.C.‘s objection to any return. Because Coulthard failed to request such a hearing, we deem his appellate claim of error forfeited. (See People v. Lazarus (2015) 238 Cal.App.4th 734, 787.) Even if Coulthard‘s claim were not forfeited, we would reject it because he does not provide any authority or persuasive argument that a superior court presiding over a criminal prosecution must hold a hearing under the Hague Convention when no application under the Convention is pending in any court. (See
2. Expert Testimony on UK Law
Coulthard claims the trial court erred by denying him “the opportunity to present the proper interpretation of United Kingdom law as it applies to the custody order.” He asserts that he was “prepared to present evidence that there is a difference in the interpretation of the family court agreements between the United Kingdom [and] California.” He further asserts that under the Hague Convention, UK laws must apply and “California has no interest in applying its own law concerning the orders governing M.C.‘s custody.”
a. Background
Pretrial, Coulthard filed an in limine motion stating his intention to call “an expert witness with regard to British family law and its application to this particular case.” The prosecutor moved in limine to exclude any defense evidence on the meaning of ” ‘right to custody’ ” under UK law. The prosecutor noted that the December 2017 custody order directed that M.C. “shall live with” Marie and further asserted that any separate ” ‘parental responsibility’ ” rights that Coulthard may have had under UK law were
At a hearing on the in limine motions, Coulthard‘s defense counsel said that “physical custody” of M.C. was “disputed” in this case and the defense had an expert witness “ready to testify and ready to indicate that, under these circumstances, it‘s reasonable for a judge in London to not necessarily award custody, but it‘s a defense for retention of the child.” Counsel also conceded that the December 2017 custody order was a valid order but explained that the defense was “contesting that [Coulthard] did not have a right to retain custody of his daughter.” Counsel further explained that “the crux of the defense is an expert witness who is familiar with family law -- the rules, regulations, so forth -- in the United Kingdom. And he will testify that under the Hague Convention there is a defense to retention of a child in breach of an otherwise valid court order and that defense in the cases in which the child -- it‘s the state of mind of the child -- has a reasonable belief of being abused, if that -- of being in grave danger if that child is returned back to the custodial parent, then the noncustodial parent can retain custody of that child. And it‘s again a defense to the breach of the order. That‘s . . . the crux of the defense here. [¶] . . . [¶] . . . It goes to an element of the crime which requires Mr. Coulthard interfere with a right of an individual who has custody. [¶] . . . [O]ur contention here is that the mother did not have custody because the child believed that she was in grave danger -- that she would be in grave danger if she were returned to the mother.”
The trial court granted the prosecutor‘s in limine motion to exclude the testimony, stating: “This case is going to be dictated by California law, California law as it will
After defense counsel asked for clarification of the trial court‘s ruling, the court continued: “[T]he People have to prove that the defendant -- when he acted, he did not have a right to custody. The People have argued that he had no right because the decree of the court that had the jurisdiction over the family law case in which custody and visitation were litigated was set forth in that order, and that was -- that is what will bind this court in establishing that right. [¶] . . . [¶] . . . If there‘s an exception to the breach of those orders, those get litigated in the court that has the jurisdiction, and that‘s the United Kingdom. That existence of the order is what is binding here, and that‘s what we‘re going to present to the jury.”
After the prosecutor described certain procedures under the Hague Convention and noted that Marie had initiated a Hague Convention petition in the UK for M.C.‘s return, the trial court reiterated: “I don‘t need to know about the Hague Convention and its articles and provisions in the context of this criminal case here because that‘s not really issues [sic] that are litigated in these proceedings. [¶] It‘s not to say that you don‘t have an alternative forum or [Coulthard] doesn‘t have an alternative forum and remedy under this Hague Convention process that‘s outlined by counsel, but that‘s not really of an issue before the Court that I have to be concerned with in dealing with now. [¶] That‘s the gist of why the Court is taking the view that it is and granting this motion excluding defense evidence of this right to custody under the law of the United Kingdom. That‘s not really at issue before this Court in this proceeding.”
A criminal defendant must be afforded a meaningful opportunity to present a complete defense, subject to the limitations imposed by the rules of evidence. (See People v. Lucas (1995) 12 Cal.4th 415, 464.) Only relevant evidence is admissible at a trial. (
” ‘The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion.’ ” (People v. Brown (2014) 59 Cal.4th 86, 101.) “A trial court‘s decision to admit or exclude evidence . . . will not be disturbed unless there is a showing that the trial court acted in an arbitrary, capricious, or absurd manner resulting in a miscarriage of justice.” (People v. Wall (2017) 3 Cal.5th 1048, 1069.) “It is settled that the exclusion of irrelevant evidence does not . . . impair an accused‘s due process right to present a defense.” (People v. Gonzales (2019) 34 Cal.App.5th 1081, 1090; see also People v. Jones (1998) 17 Cal.4th 279, 305.)
c. Analysis
The trial court did not err when deciding the in limine motions. Viewing the court‘s ruling in the context of defense counsel‘s proffer of expert testimony, Coulthard‘s claim of error is not persuasive because the information before the court demonstrated the existence of a valid custody order within the meaning of
Further, defense counsel‘s assertion that Coulthard, under UK law, may have been able to raise a defense to a violation of the December 2017 custody order is inherently speculative and collateral to the validity of the custody order during the relevant period. Under the elements of
3. Necessity Defense
a. Background
In a pretrial in limine motion, Coulthard asked to present evidence of a necessity defense, asserting multiple instances of abuse by Marie on M.C. and himself and stating that M.C. had indicated she did not want to return to her mother. Relatedly, the prosecutor moved in limine to preclude the assertion of a necessity defense, arguing that Coulthard would not be able to prove every element of that defense.
When initially addressing the in limine motions in court, the trial court said Coulthard had not “completely laid out the particulars of the affirmative defense” in his motion and the court would “need a little bit more information as to what the proposed
At a subsequent pretrial proceeding, the trial court stated its agreement with the prosecutor that “the bulk of these incidents” proffered by Coulthard in his motion did not “rise to the level of the proof that‘s required . . . [for a] necessity defense.” Nevertheless, the court reiterated that if Coulthard‘s defense counsel wanted to proffer further, more substantive evidence, the court would not “deny him that opportunity to do so.” The court also told counsel that it “will want to know the specific information as it pertains to what is the underlying basis that leaves or addresses the immediate grave harm that‘s at issue.” Counsel responded to the court by saying, “Okay. Understood.” The court then continued consideration of the necessity issue to the next day.
On the following day, the trial court reiterated that the parties needed to “address what [the] actual nature of the immediate emergency is that gives rise to this necessity.” The prosecutor argued that Coulthard could not rely on hearsay evidence to claim that an emergency existed (which is an objective standard) and instead had to make “an offer of proof that somebody competent is going to testify that these things actually occurred.” Defense counsel responded that “the emergency is the psychological trauma, not whether [M.C.] was actually hit, not whether she was actually sexually abused, but the psychological trauma that resulted from whatever conduct [Marie] imposed.” Counsel argued further that the defense did not “need to prove that those things actually occurred. We need to prove that [M.C.] suffered psychological trauma and that Mr. Coulthard was attempting to prevent that from occurring again in the future by retaining her in the United States.” The prosecutor responded by reiterating that “if there‘s no . . . admissible evidence that establish[es] that these acts actually occurred, then there‘s no necessity defense.”
After the trial court said that it agreed with the prosecutor‘s analysis and would preclude the necessity defense unless defense counsel had a “different offer of proof,”
b. Analysis
On appeal, Coulthard claims that the trial court “agreed with the prosecution‘s argument that there was no imminent evil [] from which Mr. Coulthard could claim M.C. required protection” and erroneously “made this ruling because it did not recognize the novelty of the international nature of this case.” Coulthard asserts further that because he did not receive a hearing under the Hague Convention, he was not able to “establish the elements of the necessity defense prior to the prosecution here.”
We are not persuaded by Coulthard‘s contentions. Setting aside that Coulthard failed to make any argument in the trial court tying a Hague Convention hearing to his proposed necessity defense, as we have explained ante, no hearing under the Hague Convention was required in this case. (See pts. II.C & II.D.1.)
In analyzing Coulthard‘s contention, we must discern whether he proffered ” ‘evidence deserving of consideration from which reasonable jurors could conclude [that the elements of the necessity defense] have been satisfied.’ ” (People v. Trippet (1997) 56 Cal.App.4th 1532, 1539.) If a defendant fails to establish those elements, the trial court is justified in excluding the evidence and not allowing the jury to consider the issue of necessity. (People v. Patrick (1981) 126 Cal.App.3d 952, 960–962 (Patrick).)
“The necessity defense is very limited and depends on the lack of a legal alternative to committing the crime. It excuses criminal conduct if it is justified by a need to avoid an imminent peril and there is no time to resort to the legal authorities or such resort would be futile.” (People v. Beach (1987) 194 Cal.App.3d 955, 971, superseded by statute on another point as stated in People v. Neidinger (2006) 40 Cal.4th 67, 76–77; see also Patrick, supra, 126 Cal.App.3d at pp. 960–961.)
“To assert a defense of necessity, the defendant must show, by a preponderance of the evidence, that he or she ‘violated the law (1) to prevent a significant and imminent evil, (2) with no reasonable legal alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief that the criminal act was necessary to prevent the greater harm, (5) with such belief being objectively reasonable, and (6) under circumstances in which [he or] she did not substantially contribute to the emergency.’ ” (People v. Buena Vista Mines, Inc. (1998) 60 Cal.App.4th 1198, 1202.)
Coulthard failed to offer proof establishing all the elements of the necessity defense. The trial court correctly observed that Coulthard‘s proffer about the imminent risk of abuse and harm that M.C. might suffer was based, at least in part, on her hearsay statements that could not be offered to prove the truth of the matter, i.e., the peril she faced by being with Marie. Moreover, Coulthard failed to show that he had no
Coulthard did not proffer evidence satisfying all the requisite elements of a necessity defense. We thus conclude that the trial court did not abuse its discretion or violate Coulthard‘s constitutional rights in excluding evidence regarding a necessity defense.
E. Remote Witness Testimony and Right to Confrontation
Coulthard contends the trial court violated his constitutional right to confront witnesses against him by allowing Marie to testify remotely without first holding an evidentiary hearing. He further claims that even if a hearing had been held, the prosecution failed to proffer any evidence showing the necessity or reliability of Marie‘s remote testimony.
The Attorney General responds that the trial court “did hold a hearing and ‘hear evidence’ . . . on Marie‘s specific health and travel limitations” (as relayed by the prosecutor), and Coulthard nonetheless forfeited his argument for an evidentiary hearing by failing to request such a hearing in the trial court. Additionally, the Attorney General asserts that the trial court properly made a case-specific determination that Marie‘s
1. Background
Pretrial, in August 2021, the prosecutor filed points and authorities in support of a motion to allow Marie to testify remotely via two-way audio/video communication technology. The prosecutor argued that Marie‘s remote testimony would not violate Coulthard‘s constitutional right to confront witnesses because the case circumstances met the requirement for a case-specific finding of the necessity under Maryland v. Craig (1990) 497 U.S. 836 (Craig).10 The prosecutor asserted that Marie‘s remote testimony was a “reasonable measure that mitigates the risk of spreading [coronavirus disease 2019 (COVID-19)] without unnecessarily infringing upon a defendant‘s constitutional rights,” was justified by the “current state of emergency,” and was authorized by an emergency court rule.11 The prosecutor further asserted that Marie was unwilling to travel from the
At a pretrial court proceeding, the prosecutor further explained that she could not force Marie to apply for the “national interest exemption” to a presidential proclamation that had suspended travel to the United States for certain persons from the UK. In addition, the prosecutor stated that she was “trying to determine how to even go about applying for the law enforcement exception” to the presidential proclamation and had not yet “received any information about what steps are necessary to meet that exception, if any.”
Coulthard‘s defense counsel argued that there was no legal precedent stating that “the mere existence of the pandemic is sufficient to abridge” a defendant‘s constitutional right to confrontation. Counsel also argued, inter alia, that the prosecutor had failed to show due diligence in pursuing the exceptions to the presidential proclamation and failed to provide evidence “with regards to whether remote testimony is necessary to protect the public health.” Counsel noted that Marie “ha[d] previously been found to be manipulative and untrustworthy by a court in the United Kingdom,” had chosen not to get vaccinated, and “shouldn‘t be in the driver‘s seat with regard to whether Mr. Coulthard
The trial court granted the prosecutor‘s motion for Marie‘s remote testimony, providing an extensive oral explanation of its ruling. The court observed the issue was a “complicated” one because it involved the “competing issues” of Coulthard‘s rights to a speedy trial and witness confrontation. The court conducted a “case-by-case” analysis of the confrontation issue. It addressed the state of the COVID-19 pandemic, noting that it had to consider and weigh the “realistic and practical concerns and factors” caused by the pandemic against Coulthard‘s right to confront witnesses at his trial.
The court noted that Marie is “a mother of three young children who has indicated her concerns and her refusal, frankly, to travel to the United States to testify in these proceedings and the whole absence of a process to compel her to do so.” The court also cited Coulthard‘s right to confront her and have the jurors “assess her credibility, [] view her demeanor, [] see her attitude and her emotional responses to questions, all of the indicia and characteristics that the court instructions speak to that are factors that the trier of fact gets to assess.”
The trial court continued: “The question becomes is live testimony an absolute requirement of the Sixth [Amendment]. And I think the case law has indicated that there are exceptions and exemptions from that. [¶] Does this particular case present the high-bar circumstances that [defense counsel] has indicated, and the Court believes that it does. [¶] It is clear that this witness is a necessary witness. It is clear to this Court that, given her refusal to travel to the United States -- even if she were assisted by a third party in acquiring a visa, there is no indication that she would otherwise travel under the current circumstances of the pandemic, one; two, that it would pose a hardship to her in the sense that [] she has no funds to travel, one -- if that were overcome, she still has no funds to pay for child care, two. Three, upon her return, she would have to isolate for a
The trial court described defense counsel‘s comment about Marie being in the driver‘s seat as “an unfair characterization” when juxtaposed with “defendant‘s actions in keeping the child here.” The court expressed concern “about the reliability and efficacy of an overseas remote proceeding” but explained that “assuming we get a good connection and good [application], . . . [Coulthard], through his counsel, and the jurors will have the opportunity then to confront the witness. The witness will be visible. She‘ll be available to answer questions. [¶] And there is, frankly, [] not a less-restrictive process available that will at the same time serve the paramount concern. And that is for the ascertainment of the truth. And we have to afford [Coulthard] his right to a speedy trial, his right to confront and to cross-examine witnesses. In light of the circumstances that we‘ve been addressing, this is the least-restrictive alternative available to effectuate that process. [¶] So the Court believes that it is authorized to grant that relief in view of the emergency orders necessitated because of the pandemic, and to do so under these circumstances -- and albeit they are limited to this case -- does not violate the confrontation clause.”
Later, at trial, Marie testified remotely from the UK via two-way audio/video technology. She began her testimony alone in a room at a friend‘s house but then moved to a room in her own home during the direct examination because of glitches with the initial audio transmission. After Marie completed her testimony, the trial court described the “connection and reception” from Marie‘s home as “flawless.” The court also explained that there was “ample time and opportunity for . . . the jurors to observe the witness. There was clarity in the picture. There was clarity in the audio. The witness was able to be seen by all parties. Counsel was given substantial time to examine the witness on all subjects that were approved by the Court.”
The Confrontation Clause of the Sixth Amendment to the United States Constitution ” ‘provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination.’ ” (Coy v. Iowa (1988) 487 U.S. 1012, 1017.) “The right to a face-to-face meeting between accused and accuser follows from the confrontation clause‘s ‘primary object‘: ’ “to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” ’ ” (People v. Bharth (2021) 68 Cal.App.5th 801, 814 (Bharth), quoting Craig, supra, 497 U.S. at p. 845; see also Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1358.)
“[W]hile ‘face-to-face confrontation forms “the core of the values furthered by the Confrontation Clause” . . ., it is not the sine qua non of the confrontation right.’ [Citations.] Rather, ’ “the Confrontation Clause reflects a preference for face-to-face confrontation at trial,” [citation], a preference that “must occasionally give way to considerations of public policy and the necessities of a case.” ’ [Citations.] The face-to-face requirement can be dispensed with, but ‘only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.’ [Citations.] This public policy exception is not a general one; it must be applied on a case-by-case basis.” (People v. Alvarez (2022) 75 Cal.App.5th 28, 35–36 (Alvarez), citing Craig, supra, 497 U.S. at pp. 847–850.)
“The ‘ultimate goal’ of the confrontation clause, ensuring the reliability of evidence [citation], ‘is a procedural rather than a substantive guarantee. It commands,
” ‘We review de novo a claim under the Confrontation Clause that involves mixed questions of law and fact. [Citation.] Under this standard, we defer to the trial court‘s determination of “the historical facts” . . . but not the court‘s “application of [the] objective, constitutionally based legal test to [those] historical facts.” ’ ” (Bharth, supra, 68 Cal.App.5th at p. 813; see also Alvarez, supra, 75 Cal.App.5th at p. 36 [de novo review applies when there are no disputed facts].)
3. Analysis
We begin by considering Coulthard‘s argument that the trial court erred by failing to provide him with an evidentiary hearing before it allowed Marie‘s remote testimony. Coulthard asserts that this failure “should be sufficient for this Court to vacate [his] conviction [and] order a new trial.” However, Coulthard does not cite to any evidence in the record that he asked for an evidentiary hearing before the trial court decided that Marie could testify remotely. Under these circumstances, we agree with the Attorney General that Coulthard‘s claim of error regarding an evidentiary hearing is forfeited by his failure to request such a hearing in the trial court. (See People v. Lord (1994) 30 Cal.App.4th 1718, 1722; see also People v. Hinton (2006) 37 Cal.4th 839, 898.)
We turn to the question whether the trial court erred by permitting Marie‘s two-way audio/video, remote testimony based on the prosecution‘s showing. As an initial
Coulthard asserts that “the prosecution has failed to present any evidence to demonstrate that denial of confrontation is necessary for public safety, or to show that the reliability of testimony is otherwise preserved.” We are not persuaded.
Regarding the necessity prong of the Craig analysis, the People bear the burden to make an adequate showing that Marie‘s remote testimony was necessary in this case. (See Craig, supra, 497 U.S. at p. 855.) At the time of Coulthard‘s trial in August-
As for Craig‘s reliability prong, although Marie was not physically present in court, she provided sworn testimony while situated in a room alone without any distractions. The trial court specifically found that the courtroom audio and video of Marie‘s testimony were of high quality, and the jurors could see Marie clearly. Coulthard does not argue that these findings were unsupported by substantial evidence. Although there were some initial technical problems with the audio transmission, the trial court
F. Cumulative Prejudice
Having concluded ante that Coulthard‘s claims of error lack merit, we in turn reject his claim of cumulative prejudice resulting from the asserted errors. There is no prejudicial error to cumulate. (See People v. Hensley (2014) 59 Cal.4th 788, 818.)
III. DISPOSITION
The judgment is affirmed.
Danner, J.
WE CONCUR:
Greenwood, P.J.
Bamattre-Manoukian, J.
The opinion in this case filed March 30, 2023, was not certified for publication. After the court‘s review of a request under
Danner, J.
Greenwood, P.J.
Bamattre-Manoukian, J.
Trial Judge: Hon. Jesus Valencia, Jr.
Counsel: Evan D. Williams, The Law Office of Evan D. Williams, for Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Moona Nandi, Deputy Attorney General and Bridget Billeter, Deputy Attorney General, for Respondent.