People v. RyanPeople v. Ryan
Opinion
Appellant was convicted following a jury trial of child abduction (Pen. Code, former § 278), and admitted that he suffered a prior violent or serious felony conviction for purposes of Penal Code section 667, subdivision (e). 1 On appeal, he claims that the evidence does not establish his lack of the right of custody of the child as necessary to support the child abduction conviction, and objects to the trial court’s failure to give an instruction further defining the “right of custody” as an element of the offense. We find that the conviction is supported by substantial evidence. We further find that instructional error was committed, but no prejudice to appellant resulted. We therefore affirm the judgment.
Statement of Facts
Appellant and Carolyn Ryan 2 were married on January 22, 1980. They remained married until Carolyn filed for divorce on June 29, 1995, but had an unconventional marital relationship. They lived together very infrequently between 1980 and 1991, sharing an apartment for only “about six months or so.” Otherwise, Carolyn lived “basically” with her mother in Oakland, and had “no idea” where appellant lived.
Carolyn became pregnant with her son Cleve in September of 1990, and informed appellant of the pregnancy two or three months
Cleve was bom on July 3, 1991. Carolyn gave differing approximations on appellant’s first contact with the child: according to her preliminary examination testimony, appellant did not see Cleve for “a good year and a half, two years”; at trial, she changed the age of the child to “five or six months old” when appellant first visited with him. 3 Carolyn estimated that when Cleve was “[mjaybe a year” old, appellant finally admitted he was the father. Between the child’s birth and June 20, 1995, appellant visited him approximately three times.
Carolyn testified that she was the “sole custodial parent” of Cleve. She and her mother Sadie Smith provided essentially all of the financial support for the child. Most of the time, they lived at the home of Smith on 43d Street in Oakland. Smith was “very close” to Cleve, having “helped raise him from the day he was born.” Appellant did not make regular or even periodic support payments to Carolyn; nor did he furnish a home for his son. On “one Christmas,” appellant sent Carolyn a “big box” of clothes and other
On June 20, 1995, appellant flew from Washington to Oakland. Carolyn testified at trial that while she and appellant had previously discussed “him taking [Cleve] back to Washington with him,” no specific date to do so had ever been set by them. When appellant arrived in Oakland on June 20th, however, Carolyn knew his purpose was to return to Washington with the child. In fact, he showed her two tickets for a return flight to Washington the next day. At the preliminary examination she testified, in contrast, that she never gave appellant permission to take Cleve to Washington, and did not discuss the matter with him that day. She made the same statement earlier to Dolores Rutzen, an intern with the district attorney’s office.
Appellant arrived at Smith’s house with his sister Lisa around 5:00 in the evening on June 20. He asked Carolyn for permission to take Cleve to Chuck E. Cheese in Hayward or San Leandro for “an hour or two,” and Carolyn agreed. Carolyn testified that she did not give appellant her consent to take Cleve to Washington with him. Cleve did not have a change of clothes, toys, or any other of his belongings with him when he left with appellant that evening. By 7:00 or 8:00 p.m., appellant called Carolyn from his nephew’s house to report that Cleve had gone to McDonald’s with one of appellant’s sisters. He assured Carolyn that “everything was fine,” and promised to call her or return with Cleve to Smith’s house in about an hour.
Carolyn called appellant back in an hour and asked to speak with Cleve. Appellant told her Cleve was still “not back yet.” By 10:00 or 11:00 p.m., Carolyn and her mother went to the home of appellant’s nephew in Berkeley looking for Cleve. Appellant was there, but reported to Carolyn that Cleve was still “with his sister” at her house. Smith became “excited,” and advised appellant that she “wanted to see the baby.” Smith then left in the car while Carolyn stayed with appellant at his nephew’s house.
Smith returned 30 minutes later with Carolyn’s brother and sister. Appellant said “the baby is all right,” but when he refused to tell them where Cleve was, Smith became “hysterical.” She called the police despite Carolyn’s plea that “we don’t need no police.” They then drove to the home of appellant’s sister, Rene Williams, in El Cerrito about midnight. When they arrived, the police were there, but Cleve was not. They returned to Smith’s house in Oakland around 1:00 a.m. Carolyn was not worried or upset; she told Smith, “don’t worry Mom, the baby is going to be all right.”
The next morning between 7:00 and 8:00, Smith, Carolyn, and her brother and sister went to the Oakland Airport to search for Cleve. Appellant had informed Carolyn that he had tickets for a 9:00 a.m. return flight to Seattle that day. They looked around the airport for about an hour, but did not find Cleve or appellant, whereupon they returned to Smith’s house.
From her house, Smith called the Oakland Police Department to report that Cleve had possibly “been taken away” by appellant. Carolyn remained calm. She advised the responding officer when he arrived that she knew the child was in Washington with appellant. After speaking with Carolyn, the officer determined that “a crime had not been committed,” and filed no report of the incident.
Carolyn next heard from appellant two days later, when he called her from his
On June 23, 1995, Officer George Bonilla of the Oakland Police Department responded to a report from Smith that Cleve had been abducted by appellant. Smith was “still sick” that Cleve had not been returned. Officer Bonilla discussed the matter with Carolyn, who was not upset and stated that “the child was not taken,” and was “okay.” Smith reported to the officer that Carolyn was uncooperative because of her fear of appellant. Officer Bonilla told Smith that he “would try to find” Cleve.
On June 26, 1995, Officer Edwin Bermudez spoke with Carolyn, who indicated that “she wanted to press charges” against appellant. She appeared at Bermudez’s office the next day with Smith to furnish him with photographs of Cleve. Carolyn reported that appellant “refused to tell her where he was living,” and “threatened that if she went to the police that he would disappear with the child and that she would never ever see the kid again.”
On June 29, Carolyn and Smith appeared at the district attorney’s office to report to intern Dolores Rutzen that “their baby [had been] stolen.” According to Rutzen’s testimony, Carolyn stated that she had given permission for appellant to take Cleve to Chuck E. Cheese for only “a couple of hours,” not to take him to Washington. Carolyn, who seemed quite upset to Rutzen, expressed concern about her child’s health and welfare. She also told Rutzen that Cleve was crying, hungry and “said he wanted to go home” when she spoke by telephone with him at appellant’s residence in Washington. Appellant threatened to hurt Carolyn or the child if she contacted the police. Rutzen assisted Carolyn in commencing an action against appellant for divorce and custody of the child.
Later that day, Officer Bermudez met with Carolyn and Smith at the district attorney’s office to proceed with the investigation and efforts to locate the child. Officer Bermudez thought they both seemed distressed, particularly Smith. Carolyn repeated her concern for Cleve’s welfare and appellant’s threat to disappear with the child if she “went to the police.” Carolyn signed a statement that she wanted appellant arrested and prosecuted. 5 Officer Bermudez presented the case to the district attorney’s office for charging, and obtained a warrant for appellant’s arrest. The police department in Bremerton, Washington arrested appellant under the warrant, and the next day Carolyn traveled to Seattle to retrieve Cleve.
After the preliminary examination, Carolyn asserted that some of her testimony
Discussion
I. The Sufficiency of the Evidence to Support the Conviction of Child Abduction.
Appellant argues that the evidence fails to prove his lack of “a right of custody to his son,” as required to support a conviction of child abduction under former section 278.
6
(See
People
v.
Johnson
(1984)
We must of course review the evidence in accordance with the substantial evidence rule. “ ‘When considering a challenge to the sufficiency
of the evidence to support a criminal conviction, . . the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ’ [Citations.]”
(People
v.
Williams
(1997)
Former section 278 required that the taking, concealing or detaining of a child
Nevertheless, parents without custody were not excepted from the scope of former section 278.
(U.S.
v.
Lonczak
(9th Cir. 1993)
Where, as here, no court order establishes custody, reference is made in former section 279, subdivision’(f)(1) to “
We find in the record before us ample evidence that appellant refused to take custody of Cleve. For the first year of the child’s life, he denied paternity. Appellant moved from Oakland, where the child lived with his mother, to Washington, without even advising Carolyn of his address or whereabouts. He sent no support payments to Carolyn, and visited with the child approximately three times in the first four years of his life. Carolyn testified unequivocally that she was the “sole custodial parent” of Cleve. While Carolyn’s testimony was rife with inconsistencies, the evidence, viewed as it must be on appeal in the light most favorable to the judgment, establishes that appellant declined her requests to support Cleve—save perhaps a box of clothes and other sundry items on a few rare occasions— and never provided him with a home. Appellant may not have explicitly announced his refusal to take custody, but from the evidence presented the inference that he did so is inescapable.
We further conclude that substantial evidence establishes that the appellant
abandoned
the child. The meaning of “abandonment” is not provided in former section 279 or
Intent to abandon the child must be proved to establish abandonment. (
In re Daniel M., supra,
The issue of abandonment is one of fact governed on appeal by the substantial evidence rule. Thus, “[a]ll evidence most favorable to the respondents must be accepted as true and that which is unfavorable discarded as not having sufficient verity to be accepted by the trier of fact.”
(In re Baby Boy S.
(1987)
Under any of the recognized definitions of “abandonment,” appellant lost his right to custody of Cleve. Appellant deserted the child, voluntarily leaving him to the sole care of Carolyn and her mother for nearly four years. With only rare exceptions, appellant had no communication with the child, and did not provide financial assistance. At best, appellant had contact with Cleve on a few occasions over a nearly four-year period, and made negligible contributions to his support. His token assistance and efforts to communicate constitute presumptive evidence of appellant’s intent to abandon the child, and nothing in the record rebuts the presumption.
(Adoption of Oukes, supra,
In short, appellant entirely abdicated his role and responsibilities as Cleve’s father. “ ‘[T]he legal obligations of parenthood include the duties of
support, of care and protection, and of education. As compensation therefor, the law recognizes certain rights in the parent. . . .’ [Citation.] A parent is by law the natural guardian and entitled to the custody of the person of a minor.”
(State of California
v.
Superior Court
(1978)
II. The Trial Court’s Failure to Define “Abandonment” for the Jury.
We turn to appellant’s contention that the trial court erred by failing to provide the jury with a definition of the term “abandoned” as used in former section 279. Defense counsel proposed an instruction on “right of custody” which read: “A person who had a right to custody of a child does not violate the law by obtaining that child, in the absence of a lawful court order to the contrary. HQ A biological father has a right of custody if he is married to the natural mother at the time the child is bom. HQ A biological father may lose his right to custody by proof of facts that establish he was unable, or refuses to take custody of the child, or had abandoned the child. HQ Mere acquiescence in support of the child by others, failure to pay for maintenance when no demand therefor has been made, or failure to provide when no ability to provide has been shown, do not prove an intent to abandon. HQ The prosecution has the burden of proving beyond a reasonable doubt that the defendant had lost his right to custody at the time of the alleged commission of the offenses herein. If you are not satisfied beyond a reasonable doubt that it is true, you must find that the defendant maintained his right to custody.” The requested instruction was refused on the grounds that it was “somewhat argumentative,” and the CALJIC No. 9.72 instruction given by the court adequately “laid out the parameters.” 12 Appellant maintains that the trial court had the duty to either give the proffered defense “pinpoint” instruction, or instruct sua sponte on the definition of the term “abandoned.”
“Upon proper request, a defendant has a right to an instruction pinpointing the theory of defense.”
(People
v.
Randolph
(1993)
A trial court also “ ‘has no sua sponte duty to give amplifying or clarifying instructions . . . where the terms used in the instructions given are “commonly understood by those familiar with the English language.” [Citation.]’ [Citation.]”
(People
v.
Richie
(1994)
We agree with appellant that a supplementary instruction on “abandoned” was imperative to furnish the jury with an explanation of a term which did not have a commonly understood definition in the context of the present case. Both former section 279 and Family Code
The instruction proposed by appellant was inappropriate, however. For the most part it was merely duplicative of the CALJIC No. 9.72 instruction. The instruction was also argumentative and legally incorrect in several respects. The blanket statement that a parent with the right of custody cannot be found to violate the law “in the absence of a lawful court order to the contrary” is simply incorrect. The single paragraph that attempted to describe “intent to abandon” did so in incomplete terms favorable to the defense. Otherwise, the instruction failed to provide the jury with any further functional definition of “abandoned” than is found in the CALJIC No. 9.72 instruction. The court did not err in declining to give appellant’s “right of custody” instruction.
Instead, we are persuaded that the definition of “abandoned” for purposes of determining loss of a parent’s right of custody in dependency and other family law proceedings, is also appropriate and must be given as part of the right of
The trial court’s failure to furnish the jury with an instructional definition of the term “abandoned” was error. The remaining issue is whether the error was prejudicial, and we conclude that it was not. The error is not reversible per se.
(People
v.
Flood
(1998)
Accordingly, the judgment is affirmed.
Strankman, P. J., and Marchiano, J., concurred.
A petition for a rehearing was denied January 11, 2000, and appellant’s petition for review by the Supreme Court was denied March 29, 2000.
Notes
All further statutory references are to the Penal Code unless otherwise indicated.
We will refer to the witnesses and involved parties by their last names after introduction, with the exception of Carolyn Ryan, her son Cleve Ryan IV, and appellant’s sister Lisa Ryan, who, for the sake of clarity and convenience, will be referred to by their first names, Carolyn, Cleve, and Lisa, respectively.
Carolyn’s testimony at the preliminary examination differs considerably from her testimony at trial; when the inconsistencies are significant we will note them.
At trial, Carolyn did not recall that appellant made this threat, which she had previously reported in her statement to the police and recounted in her testimony at the preliminary examination.
At trial, Carolyn denied that appellant ever threatened her, and testified that she signed the statement in the district attorney’s office only when pressured by her mother to do so to “get Cleve” back. Carolyn signed another statement after a meeting with Officer Bermudez on August 7, 1995, in which she complained that appellant had made harassing telephone calls to her.
Former sections 278 and 279, which were repealed in 1996 (Stats. 1996, ch. 988, § 8), were still in effect when the charged crime was committed and govern the present case, as the parties agree. 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.”
Section 278 currently reads: “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.” The principle change in the statute by the 1996 amendment 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 Attorney General concedes that appellant must be considered “the presumed father of Cleve,” with a “right of custody” by “operation of law.”
Former section 279, subdivision (f) read in full: “For purposes of Sections 277, 278, and 278.5: [TO (1) ‘A person having a right of custody’ means the legal guardian of the child, a person who has a parent and child relationship with the child pursuant to
Section 277 has replaced former section 279, and now states in subdivision (e) in pertinent part, as did the former section 279: “A ‘right to custody’ means the right to the physical care, custody, and control of a child pursuant to a custody order as defined in subdivision (b) or, in the absence of a court order, by operation of law, or pursuant to the Uniform Parentage Act contained in Part 3 (commencing with Section 7600) of Division 12 of the Family Code.” Subdivision (f) of section 277 currently states: “In the absence of a court order to the contrary, a parent loses his or her right to custody of the child to the other parent if the parent having the right to custody is dead, is unable or refuses to take the custody, or has abandoned his or her family. A natural parent whose parental rights have been terminated by court order is no longer a lawful custodian and no longer has a right to physical custody.”
In contrast, the term “refuses to take custody” has not been further defined in the statutes or case law.
Cases have also referred to the Webster’s New International Dictionary definition of “abandonment”: “ ‘ “To relinquish or give up with the intent of never again resuming or claiming one’s rights or interests in; to give up absolutely; to forsake entirely; to renounce utterly; to relinquish all connection with or concern in; to desert, as a person to whom one is bound by a special relation of allegiance or fidelity; to quit; to forsake.” ’ ”
(In re Daniel M., supra,
Section 271a reads: “Every person who knowingly and willfully abandons, or who, having ability so to do, fails or refuses to maintain his or her minor child under the age of 14 years, or who falsely, knowing the same to be false, represents to any manager, officer or agent of any orphan asylum or charitable institution for the care of orphans, that any child for whose admission into such asylum or institution application has been made is an orphan, is punishable by imprisonment in the state prison, or in the county jail not exceeding one year, or by fine not exceeding one thousand dollars ($1,000), or by both.”
The trial court’s instruction pursuant to CALJIC No. 9.72 was: “ ‘Lawful custodian’ means a person, guardian, or public agency having a right to custody of a child. [10 A ‘right of custody’ means the right to physical care, custody and control of a child pursuant to a custody order or operation of law. In the absence of a court order to the contrary, a parent loses his or her right of custody of the child to the other parent if the parent having the right to custody is dead, is unable or refuses to take the custody, or has abandoned his or her family.”
Thus, the jury must be instructed pursuant to Family Code section 7822, subdivision (a) that a child is abandoned by a parent, where the child has been “left by both parents or the sole parent in the care and custody of another for a period of six months or by one parent in the care and custody of the other parent for a period of one year without any provision for the child’s support, or without communication from the parent or parents, with the intent on the part of the parent or parents to abandon the child.” The language of a statute is generally an appropriate and desirable basis for an instruction.
(People
v.
Estrada, supra,