P. v. Young
Filed 1/22/13 P.
v. Young CA1/3
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
HUGUETTE NICOLE YOUNG,
Defendant and
Appellant.
A132461, A133222, A133856
(City & County of San Francisco
Super. Ct. No. 214812)
Defendant Huguette Nicole Young
appeals from a judgment convicting her of two counts of depriving a lawful
custodian of the right to child custody.
She contends that instructional errors by the trial court interfered with her
ability to present a statutory defense based on a reasonable and good faith
belief that her children were in immediate danger. In a supplemental brief,
defendant argues that she received ineffective assistance of counsel based on
her attorney’s failure to object to the improper instructions. Defendant also
argues that the court erred in failing to award presentence conduct credits,
that the court violated Penal Code section 654
by imposing concurrent one year jail terms as a condition of her probation, and
that under section 136.2 the court lacked authority to issue a
probation.
We find no error with regard to the
jury instructions and reject defendant’s claim of ineffective assistance of
counsel. Defendant’s contention under section 654 is similarly without merit
because the jail terms were imposed as a condition of probation and are not
considered punishment for purposes of section 654. The protective order was
properly issued as a condition of probation under section 1203.1, and despite
an apparent clerical error was not issued under section 136.2. It is undisputed
that defendant was entitled to an additional 73 days of
judgment to reflect the additional credits.
Factual and Procedural History
Defendant was charged by information
with two felony counts of depriving a lawful custodian of the right to child
custody (Pen. Code, § 278.5, subd. (a)). The following evidence was
presented at trial:
Defendant and complaining witness
Dykes Young were married in 2000. Together they had two children. The couple
divorced in 2004.
Under a custody order issued in
January 2010, defendant and Dykes shared joint legal and physical custody of
the children. Dykes was then living in
Francisco and defendant was living in Albany. The
children were attending school in San
Francisco and alternating
weeks living at each parent’s home. On January 5, 2011,
defendant made a motion in the family court to change the children's school to
one closer to her home in Albany. The motion was denied without prejudice and a future hearing date
was set to consider the children’s schooling more thoroughly.
On January 11, 2011, when Dykes learned that the children were not at school, he filed
an ex parte motion in the family court to require the children to stay with him
on weeknights. The ex parte motion was heard on January 13, 2011, without defendant being present. The court ordered that the
children stay with Dykes on Sunday through Thursday nights and on alternating
weekends. The children would be with defendant only every other weekend.
On the evening of Friday, January 14, 2011, Dykes went to defendant’s house in Albany and served
the custody order. Under the terms of the order, it was his weekend for custody
of the children. At Dykes’s request, police officers were also present for
“civil standby.†Defendant refused to permit the children to leave with Dykes
as required by the ex parte order, and Dykes left without them. Later that
night, Dykes drove by defendant’s home to check on the children.
After serving defendant with the new
custody order, Dykes had contacted Officer Darci Mix, with the San Francisco
County District Attorney’s Child Abduction Unit, and provided her with
information regarding the children, defendant, and the new custody order.
Officer Mix emailed defendant, introducing herself and attaching a copy of the
order. Defendant questioned the authenticity of the order, but Mix, after
confirming the authenticity of the order with the court, informed defendant
that the order was properly issued.
Defendant responded by email that
she did not plan to take the children outside of Albany unless she
felt they were not safe from their father, in which case she would move the
children to a different location and inform her of that location, pursuant to
section 278.7.
title="">[2] On
the phone, defendant told Mix that she was concerned for the children’s safety
because Dykes believed in spanking as a correctional tool. Defendant cited an
incident in 2006 in which Dykes had spanked one or both of the children. Mix
told defendant she believed that defendant’s concerns about spanking were
insufficient to comply with section 278.7.
That weekend, when Dykes attempted
to arrange by email for the transfer of the children, defendant responded, “Be
aware that calling me and lurking in the East Bay represents a threat to the
kids, as far as I'm concerned, as well as a threat to me. And I may now and at
any time before I hear from Darci Mix leave with the children to another
location at any time without letting you know.â€
On January 18, 2011, when Mix learned that the children were not in school that day and
that defendant’s car was not at her apartment, she began searching for
defendant and initiated the arrest warrant process.
Dykes was concerned that defendant
had left the Bay Area with the children. He explained that in 2006 she had
taken the children to Los Angeles in violation of a court order. Because he was concerned that she
might have done so again, he set up a tracking device that would tell him when
and from where defendant opened any emails he sent her. Dykes subsequently
received an email from defendant stating that if he would agree to resume 50/50
custody of the children, she would return with them. He received a notification
from the tracking device that defendant was 80 percent likely to be viewing his
emails from a location in Nashville, Tennessee. He forwarded the notification to Mix, who identified the physical
address and forwarded that information to the Nashville police.
Defendant was arrested in Nashville on January 21, 2011.
A tape recording of Mix’s
interrogation of defendant in the San Francisco County Jail was played for the
jury.
The jury found defendant guilty of
both counts. The trial court suspended imposition of sentence and placed
defendant on three years’ probation, conditioned on one year in county jail,
with credit for 134 actual days served in presentence custody. The court also
conditioned probation on the issuance of a criminal protective order to stay
away from defendant’s two children. Defendant filed timely notice of appeal.
On July 29, 2011, the trial court granted defendant an additional 20 days of credit
for her actual days spent in presentence custody, for a total of 154 days. The
court also terminated the criminal
protective order of June 22 and issued a new order imposing essentially the
same requirements but permitting the family court to modify the stay-away
provision. Defendant filed a new, timely notice of appeal from the orders of July 29, 2011.
On September 9, 2011, defendant filed a motion in the trial court to correct her
presentence custody credits to include credit under section 4019. The motion
was denied and thereafter, defendant timely filed an additional notice of
appeal. Pursuant to defendant’s motion, this court consolidated her three
appeals.
1.
felony counts under section 278.5.
Section 278.5, subdivision (a)
provides that whoever “takes, entices away, keeps, withholds, or conceals a
child and maliciously deprives a lawful custodian of a right to custody, or a
person of a right to visitation
. . . †commits a crime that may be either a misdemeanor or a
felony. Section 278.7, subdivision (a), however, provides that section 278.5
does not apply to a person who has a right to custody of the child and acts
“with a good faith and reasonable belief that the child, if left with the other
person, will suffer immediate bodily injury or emotional harm
. . . .†This exception applies only if the person “within a
reasonable time from the taking, . . . make(s) a report to the office
of the district attorney of the county where the child resided before the
action†and “within a reasonable time from the taking . . .
commence(s) a custody proceeding in a court of competent jurisdiction.â€
(§ 278.7, subds. (c)(1), (c)(2).) Under section 278.7,
subdivision (d), “a reasonable time within which to make a report to the
district attorney's office is at least 10 days and a reasonable time to
commence a custody proceeding is at least 30 days. This section shall not
preclude a person from making a report to the district attorney’s office or
commencing a custody proceeding earlier than those specified times.†While the
prosecution bears the burden of proof under section 278.5, “defendant bears the
burden of raising a reasonable doubt regarding whether section 278.7(a)
applies.†(People v. Neidinger (2006)
40 Cal.4th 67, 70.)
The jury was instructed as follows:
“The defendant is charged with depriving someone else of the right to custody
or visitation in violation of Penal Code section 278.5. [¶] To prove that
the defendant is guilty of this crime, the People must prove that: [¶] 1.
The defendant took, kept, withheld, or concealed a child; [¶] 2. The child
was under the age of 18; [¶] AND [¶] 3. When the defendant acted, she
maliciously deprived a lawful custodian of his right to custody or deprived a
person of a lawful right to visitation. [¶] Someone acts maliciously when
he or she intentionally does a wrongful act or when he or she acts with the
unlawful intent to disturb, defraud, annoy, or injure someone else.
[¶] . . .[¶] The defendant can be guilty of child abduction
whether or not the child resisted or objected, and even if the child consented
to go with the defendant. [¶] Visitation means the time ordered by a court
granting someone access to the child.†(CALCRIM No. 1251.) The jury was further
instructed: “The defendant did not maliciously deprive a lawful custodian of a
right to custody or person of a right to visitation if the defendant:
[¶] 1. Had a right to custody of the child when she abducted the child;
[¶] 2. Had a good faith and reasonable belief when abducting the child
that the child would suffer immediate bodily injury or emotional harm if left
with the other person; [¶] 3. Made a report to the district attorney’s
office in the county where the child lived within a reasonable time after the
abduction; [¶] 4. Began a custody proceeding in an appropriate court
within a reasonable time after the abduction; [¶] AND 5. Informed the
district attorney's office of any change of address or telephone number for
herself and the child. [¶] . . . [¶] A reasonable time within
which to make a report to the district attorney's office is at least 10 days
from when the defendant took the child. [¶] A reasonable time to begin a
custody proceeding is at least 30 days from the time the defendant took the
child. [¶] The People have the burden of proving beyond a reasonable doubt
that the defendant maliciously deprived a lawful custodian of a right to
custody or person of a right to visitation. If the People have not met this
burden, you must find the defendant not guilty of the crimes charged.†(CALCRIM
No. 1252.)
Defendant contends the court erred
in including the reporting requirements in the jury instruction because they were
both irrelevant and ambiguous. The instructions were irrelevant, she suggests,
because defendant was arrested only four days after abducting the children. The
instructions were ambiguous, she argues, because the instructions were unclear
as to whether the reporting requirements were triggered only after 10 or 30
days had passed or whether she had up to 10 or 30 days to make the required
reports. Defendant writes, “Did the jury understand Ms. Young to have a maximum
of 10 days to report the address of her safe location and the other requisite
information to the district attorney, or a minimum of 10 days?†Although we
agree that the reporting requirements might have been omitted from the standard
instructions because they were not applicable under the facts of this case,
neither party requested the court to delete those portions of the CALCRIM
instruction. Moreover, their inclusion gave rise to no prejudice. (
1228, 1237 [“An instruction can only be found to be ambiguous or misleading if,
in the context of the entire charge, there is a reasonable likelihood that the
jury misconstrued or misapplied its words.â€].) There was no question that
defendant had the children in her custody on the occasion in question for only
four days, such that the time within which reports were required had not
elapsed, whether 10 and 30 days were minimum or maximum time periods. During
closing arguments neither counsel suggested that the statutory defense did not
or could not apply because defendant had not reported to the district attorney
or presented the issue to the family court for determination. Such a
suggestion, at odds with common sense, apparently did not occur to anyone
during the course of the trial and there is no reason to believe that the jury
would have understood the instructions in that manner. The evidence was
overwhelming and undisputed that defendant abducted the children at least in
part for the purpose of obtaining leverage over Dykes in the custody dispute.
The fact that she was willing to return the children if the 50/50 custody order
was reinstated stands in direct conflict with any potential finding that she
had a good faith, reasonable belief that Dykes posed an immediate threat to the
children.
Defendant also argues that the court
erred in failing to instruct the jury that if it found that she had mixed
motives for taking the children, one of which qualified for the section 278.7
defense, the jury was required to acquit. Defendant argues that the jury should
have been instructed that “so long as a legitimate reason for taking the
children was a ‘substantial factor’ in her decision to leave with the kids –
more than a remote or trivial factor – the jury was required to find her not
guilty.†Defendant acknowledges that there is no published authority addressing
mixed motives in the context of sections 278.5 and 278.7. Instead, defendant
attempts to analogize the malicious intent required under section 278.5 to the
specific intent requirement in certain hate crime statutes. In
the court held that when multiple concurrent motives exist in a prosecution
under section 422.6, which requires that the defendant specifically intend to
deprive the victim of protected rights “because of†the victim’s protected
characteristic, the prosecutor must prove and the jury must find that the
defendant’s improper motive was a substantial factor in defendant’s conduct. By
analogy, defendant argues, under section 278.7, “[she] had to show that her
lawful intent was a substantial factor in her decision to leave Albany with the
children. She is not required to show that it was her only motivation.â€Assuming
this to be true, the failure to so state in the instruction lessened the
defendant’s burden to establish the defense. As the instructions read,
defendant was required to show only that she had a good faith and reasonable
belief that the child would suffer harm if left with the other custodian,
whether or not there were other motives for the abduction and regardless of the
extent to which that good faith belief was a causative factor in the abduction.
Inserting that the belief had to be a substantial factor would only have
increased defendant’s burden.
name="_ftnref4" title="">[4]
Finally, defendant contends that the
court erred by instructing the jury, over her objection, with CALCRIM No. 372,
as follows: “If the defendant fled immediately after the crime was committed,
that conduct may show that she was aware of her guilt. If you conclude that the
defendant fled, it is up to you to decide the meaning and importance of that
conduct. However, evidence that the defendant fled cannot prove guilt by
itself.†On appeal, defendant reiterates the objection made by her trial
counsel that the instruction was inapplicable because “[t]here cannot be
enhanced culpability attributed to her actions as flight. The offense is
flight. And I don’t think you can view her flight as anything other than a
commission of the offense, not an admission with respect to culpability.†The
trial court, however, disagreed, explaining that “[f]light is not required and
does not have to be part of the deprivation of custody or visitation.†We agree
with the trial court. The evidence establishes that defendant deprived Dykes of
custody throughout the weekend when she refused to turn the children over as
required by the valid court order. Her flight, while amounting to further
deprivation, supports an inference of consciousness of guilt.
2. The
conditions of defendant’s probation were properly imposed.
As noted above, the trial court
suspended imposition of sentence and placed defendant on probation, conditioned
on one year in county jail. The court’s order notes under the terms and
conditions of probation that “The sentences in counts 1 and 2 are concurrent.â€
Defendant claims the trial court violated the dual-punishment prohibition of
section 654 when it imposed jail-term sentences for both of her convictions.
The Attorney General suggests that concurrent sentencing was appropriate
because defendant “had separate criminal objectives, one for each child,
warranting punishment for each conviction.†We need not resolve this issue,
however, because there is no sentence or “punishment†to be stayed. The trial
court suspended imposition of sentence on both convictions, granting instead a
period of formal probation that was conditioned on, among other things,
defendant serving time in county jail. A grant of probation is an act of
rehabilitative clemency and its proper conditions are not subject to the dual
punishment proscription of section 654. (People
v. Stender (1975) 47 Cal.App.3d 413, 425, overruled on other grounds in
225, 240.) Should defendant’s probation be revoked and the court ultimately
find it necessary to impose sentence, defendant may raise an objection based on
section 654 at that time. (See People v.
Wittig (1984) 158 Cal.App.3d 124, 137.)
Defendant also objects to the
protective order issued by the court on July 29. At the June 22 hearing, the
court indicated that it was imposing the stay away order as a condition of
defendant’s probation. On July 29, the court terminated the June 22 order and
issued a new protective order, which was identical to the first except that it
gave the family court discretion to modify the protective order. On both orders
the court checked the box on the standard JCC CR-161 form indicating that it
was a “Probation Condition Order (Pen. Code, § 136.2).â€
On
appeal, defendant argues the court lacked authority to issue the order because
section 136.2 authorizes a protective
order only during the pendency of the criminal proceedings.
Defendant relies on People v. Selga (2008)
162 Cal.App.4th 113, 118-119 in which the court held a protective order may not
be issued under section 136.2 as a condition of probation. The court explained
that “[b]ecause the only purpose of orders under section 136.2 ‘is to protect
victims and witnesses in connection with the criminal proceeding in which the
restraining order is issued in order to allow participation without fear of
reprisal,’ the duration of such an order ‘is limited by the purposes it seeks
to accomplish in the criminal proceeding.’ [Citation.] That is, the protective
orders issued under section 136.2 were operative only during the pendency of
the criminal proceedings and as prejudgment orders.†(Ibid; but see People v. Stone
(2004) 123 Cal.App.4th 153, 159 [“[a]lthough section 136.2 does not indicate on
its face that the restraining orders it authorizes are limited to the pendency
of the criminal action in which they are issued or to probation conditions, it is properly so construed†(italics
added)].) However, we need not decide whether section 136.2 authorized the
protective order in this case. Although the box checked by the court indicated
that the statutory authority for the order was section 136.2, the record as a
whole indicates that the court imposed the order as a
condition of probation and the condition is undoubtedly proper under
section 1203.1.
title="">[6]
“Section 1203.1
gives trial courts broad discretion to impose conditions of probation to foster
rehabilitation of the defendant, protect the public and the victim, and ensure
that justice is done. [Citations.] ‘A condition of probation will not be held
invalid unless it “(1) has no relationship to the crime of which the offender
was convicted, (2) relates to conduct which is not in itself criminal, and (3)
requires or forbids conduct which is not reasonably related to future
criminality. . . .†[Citation.] Conversely, a condition of probation
which requires or forbids conduct which is not itself criminal is valid if that
conduct is reasonably related to the crime of which the defendant was convicted
or to future criminality.’ [Citation.] As with any exercise of discretion, the
court violates this standard when it imposes a condition of probation that is
arbitrary, capricious or exceeds the bounds of reason under the circumstances.
[Citation.]†(People v. Jungers
(2005) 127 Cal.App.4th 698, 702.) There is no doubt that the stay away order
issued in this case is reasonably designed to prevent defendant from abducting
the children again. Contrary to defendant’s argument, the order does not
infringe on her “constitutionally protected parental rights.†As defendant
acknowledges, the July 29 order specifically includes a provision that
authorizes the family court to supersede the criminal protective order.
In striking the stay away order
issued under section 136.2 in Selga,
the court acknowledged that the trial court had broad discretion to impose a
stay away order as a reasonable condition of probation under section 1203.1,
but rejected the People’s argument that “since the condition could have been
imposed under section 1203.1, there is no prejudice.†(People v. Selga, supra,162 Cal.App.4th at pp. 119-120.) The court
explained, “The criminal protective order itself advises that a violation of
the restraining order may be punished as a contempt of court, a misdemeanor or
a felony. By contrast, for conduct that is not otherwise criminal
. . . a stay-away order imposed as a condition of probation is not
punishable as a separate offense. †(Id.
at p. 120.) Accordingly, the court felt compelled to strike the protective
order and remand the matter to the trial court “to exercise its discretion on
whether to impose a similar stay-away order as a condition of probation under
section 1203.1.†(Id. at p. 121.)
Unlike the situation in
mistakenly issue the protective order under section 136.2. As noted above, when
the court imposed the protective order it admonished defendant that the
protective order was being imposed as a condition of her probation and that if
she violated the order her probation could be revoked. The court repeated this
admonition at the conclusion of the July 29 hearing. When the court orally
imposed the protective order, it never cited section 136.2, or any other
statute, but instead made clear that the order was being imposed as a condition
of defendant’s probation. It is entirely possible that the court or court clerk
checked the box to indicate the protective order was a condition of probation
under section 136.2 because that is the only option for a probation order
condition on the standard form. There is no box to check to issue the order
under section 1203.1 on the standard JCC form. Accordingly, we conclude that
the order was properly issued under section 1203.1.
Defendant argues that the July 29
order should be reversed because she could be subject to a separate criminal
prosecution if she violates the protective order, based on a prosecuting
agency’s mistaken belief that the order was validly issued under section 136.2.
The present opinion should preclude such a misunderstanding. Nonetheless, to
ensure no such mistake occurs, the record should be corrected to reflect that
the protective order issued by the court on July 29 was imposed as a condition
of defendant’s probation under section 1203.1.
Finally, defendant contends that the
court erred in failing to award her presentence conduct credits under section
4019. The Attorney General concedes error but argues that the issue is moot
since defendant has completed her county jail time and the matter of custody
credits can be addressed, if necessary, should defendant violate her probation.
However, since it is undisputed that defendant is entitled to an additional 76
days of credit, we see no reason not to modify the judgment as this time.
Disposition
The judgment is modified to award a total of 230 days presentence
custody credits and is affirmed as so modified. The matter is remanded to the
superior court to correct the record in accordance with this opinion, to
reflect that the protective order issued by the court on July 29 was imposed as
a condition of defendant’s probation under section 1203.1 and to reflect the
additional custody credits.
_________________________
Pollak,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
noted.
depriving a lawful custodian of child custody rights and section 278.7 provides
an exception based on a reasonable and good-faith belief that the children
would suffer immediate physical or emotional harm if left with that custodian.
