Filed 12/15/15 P. v. Rief CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065992

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD242110)

TAMMY CHERIE RIEF,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Kenneth

K. So, Judge. Affirmed.

         Raymond Mark DeGuiseppe, under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G.

McGinnis and Kristin A. Guiterrez, Deputy Attorneys General, for Plaintiff and

Respondent.
       This case involves Tammy Cherie Rief's 2012 abduction of J., who is her and

Brian S.'s now-eight-year-old son. A jury found Rief guilty of one count of malicious

child abduction in violation of Penal Code1 section 278.5, subd. (a) (section 278.5(a)).

The court sentenced her to the upper term of three years in county jail (§ 1170, subd.

(h)(2)).

       Rief appeals, contending her conviction must be reversed because (1) the

judgment is based upon an unconstitutional application of section 278.5(a) that

effectively compelled a finding against her on the crucial and sole issue of "malice,"

thereby relieving the prosecution of its ultimate burden of proof and depriving her of any

meaningful opportunity for a defense; (2) the court prejudicially erred by denying her

request that the jury be instructed on the common law defense of necessity; (3) section

278.7, which provides what the parties refer to as a statutory "good cause defense" to the

crime of malicious child abduction (§ 278.5(a)), is unconstitutional both facially and as

applied to her; and (4) the cumulative effect of the foregoing claimed trial errors violated

her fundamental due process right to a fair trial. We reject these contentions and affirm

the judgment.

                               FACTUAL BACKGROUND

       A. The People's Case

       In late 2006 and again in early 2007, Rief and Brian S. dated while they were

living in San Diego County. About a month after the relationship ended, Brian S. learned



1      All further statutory references are to the Penal Code unless otherwise specified.
                                             2
that Rief was pregnant. Brian S. tried to stay in touch with Rief during her pregnancy,

but he lost contact with her because she did not respond to his telephone calls and text

messages.

        In December 2007 Rief's father called Brian S. and informed him that Rief was in

labor. Brian S. went to the hospital and was present during the birth of their son, J. Brian

S. spent the next few days with J. and then left California on a preplanned trip for about a

week and a half. When he returned, he saw J. almost every day. However, within a

month, Rief began to keep Brian S. from J. by making excuses as to why Brian S. could

not see their son. At one point Rief left on a two-week trip without telling Brian S. and

she did not respond to his phone calls.

        In November 2008 Rief informed Brian S. she was taking J. out of the state for the

holidays. Concerned that Rief might not return, Brian S. commenced a paternity action

and informed her there was a restraining order that prevented her from taking J. out of the

state without his consent. Brian S. testified he told Rief he would consent if she gave him

some assurance she would return, and Rief agreed to sign a statement stating her intent to

return. She told Brian S. her attorney would contact him to make the arrangements, but

she then left before making any further contact with Brian S.

        In February 2009 Rief commenced a paternity action in Alabama, where she was

living with J. The Alabama court initially granted Rief temporary custody of J., but later

relinquished jurisdiction to the California court where Brian S. had filed the first paternity

case.



                                              3
       Between November 2008 and October 2009 Brian S. made repeated·attempts to

contact Rief because he wanted to see J., but she did not respond to his messages. At one

point, Rief's attorney called Brian S. and told him Rief did not intend to return to

California.

       In October 2009 Brian S. obtained a custody order from a California family court

providing him the right to immediate visitation with J. and regular visitation thereafter for

the first week of each month. The order also allowed Brian S. to contact J. by telephone

and Skype.

       Despite the custody order, over the next several months Rief only permitted Brian

S. to have J. on eight of the 25 scheduled days of visitation. Rief regularly failed to

comply with the order for telephone and Skype calls.

       On November 8, 2009, immediately after Brian S.'s first regular visit with J., Rief

took J. to a hospital to report alleged abuse. J. had minor bruises on his face, right arm

and left foot and a small laceration on his face. Brian S. testified that the wound to J''s

cheek occurred when he fell onto a bush at his residence. Child Protective Services

(CPS)2 investigated the alleged abuse and determined the accusations were unfounded.

       In December 2009 Rief claimed J. was sick and did not permit Brian S. to see him.

       In January 2010 Brian S. was required by Rief's counsel and her father to sign a

contract agreeing he would travel to Alabama to visit J., but not take J. out of the state,



2       Although this agency in San Diego County is called Child Welfare Services, the
parties on appeal refer to the agency as CPS. To avoid confusion, this court shall also
refer to the agency as CPS.
                                              4
despite a custody order allowing him to take J. to California. After Brian S. traveled to

Alabama, Rief kept him from seeing J. until the third day of the five-day visit.

       In February 2010 Rief again prevented Brian S. from seeing J. Rief informed

Brian S. that J. was unavailable for their visit because she had scheduled a medical

procedure during Brian S.'s visitation time. The procedure was eventually postponed at

the request of Brian S.'s attorney because Brian S. had not consented to it. Brian S. went

to Alabama and tried to see J. for his scheduled visit, but when Brian S. spoke to Rief on

the phone, she told him he was not welcome. When Brian S. went to the house where

Rief was staying, she did not answer the door. While he was waiting in his car, Brian S.

received a call from Rief's father, who yelled at him.

       Rief did not permit Brian S. to see J. until the end of March 2010 when she came

to California for an appointment. Rief thereafter prevented Brian S. from seeing J. for the

majority of his scheduled visits, including a six-month period when she did not permit

him to see J. at all.

       In November 2010 the California family court issued an order temporarily

granting Brian S. sole physical custody of J. as a result of Rief's failure to obey the earlier

custody orders.

       Rief was ordered to appear with J. before the Alabama court judge on December 2,

2010, in order to relinquish him to Brian S. Rief appeared, but she did not bring J. The

Alabama court held Rief in contempt and ordered her jailed until she relinquished J. Two

days later, Rief's father brought J. to Brian S. and they returned to San Diego.



                                               5
       In January 2011 Rief returned to San Diego for custody hearings. A custody trial

took place between January and June. Both parents sought sole physical custody of J.

       In April 2011 Rief went to the San Diego County District Attorney's Office and

requested assistance in obtaining full custody of J. She met with District Attorney

Investigator Carole Snyder, who reviewed paperwork that Rief provided concerning the

custody proceedings. Snyder did not open a case because, at the time, Rief had no

custodial rights and J. was not a missing child. Instead, Snyder advised Rief to retain an

attorney and file an ex parte motion for custody of J. She then learned that a custody

hearing was already scheduled. Rief did not make any allegations of abuse.

       On June 20, 2011, Rief contacted the San Diego Police Department to report

bruising and abrasions on J.

       On June 23, 2011, the court issued a child custody order (custody order) granting

Rief and Brian S. joint physical and legal custody of J. but gave Brian S. the "tie-breaking

vote" when it came to legal decisions. The custody order provided that J.'s residence

would be in Southern California for a period of five years and that Rief could not remove

him from the area without Brian S.'s consent.

       In March 2012 after Rief failed to bring J. to preschool according to the schedule

set by the court, the court ordered her to comply. On March 13, 2012, the court ordered

that J. attend a third day of preschool a week, after an additional day was recommended

by his teacher and Reif resisted. The order gave Brian S. sole control over decisions

related to therapy sessions for J. About a week later, Brian S. filed a motion for sole

legal custody of J. A court hearing was set for July 2, 2012.

                                             6
       Sometime in mid-March, Rief contacted Mark Davis of the Alabama Family

Rights Association. Rief sought Davis's advice about how to move the custody

proceedings from California to Alabama.

       On April 2, 2012, Davis met with Rief and her father in Alabama and he reviewed

paperwork she provided. Davis told Rief she should seek the advice of an attorney and

recommended one. Davis met with her again later that month. During the meetings, Rief

made vague allegations of abuse and stated she thought that Brian S. might take J. out of

the country, but her primary concern appeared to be moving the custody proceedings to

Alabama.

       On Apri1 27, 2012, Rief picked J. up from his preschool. That was the last day he

attended.

       On April 30, 2012, Rief failed to bring J. to Brian S. at the agreed-upon time and

location. He tried calling Rief, but her phone had been disconnected. When he was

unable to find Rief at either address she had provided the court, Brian S. called the police.

He was referred to the district attorney's office, where he met with Investigator Snyder.

Snyder attempted to locate Rief but was unsuccessful. Brian S. did not see J. for more

than six months.

       During this time Rief was living with J. in Charlotte, North Carolina, with Robin

Evans and Gwendolyn Buckingham. Evans's sister's husband, D. Riley Bell, visited the

home several times during the summer and got to know Rief─who went by the name

"Julie"─and J.─who went by the name "Nicko." Although J. seemed happy, he seldom

went outside, and when he did, he usually covered himself with longsleeved shirts and

                                             7
pants, which was unusual given the hot weather. Also, sheets were used to cover the

windows in the room where Rief and J. were staying to keep people from seeing in. Bell

searched the Internet and found pictures of J. and Rief on the National Center for Missing

and Exploited Children (NCMEC) website. After learning that Rief and J. were sought in

connection with a missing child case, Bell told his wife they should not be helping Rief.

He called NCMEC and turned them in. Bell later spoke to Investigator Synder and gave

her the information he had. Bell's wife and sister-in-law were very upset and thought he

had violated "family trust."

       In early November 2012 Charlotte police officers responded to the home with a

warrant for Rief's arrest. Buckingham was hesitant to speak to the officers and at first

denied Rief and J. were there. After she was warned she could be charged with harboring

them if she was lying, she let the police inside and directed them upstairs. Officers found

Rief hiding under a pile of clothes and holding J. She had changed her hair color from

blonde to brown. Rief was arrested and one of the officers interviewed J. before he was

placed into the custody of social services.

       Brian S. flew to Charlotte the day after J. was found. Brian S. testified that J.

looked disheveled, he was not clean, and he had long, oily hair that had some highlights

in it. After Brian S. brought J. back to San Diego, J. seemed scared and quiet, and he

exhibited unusual behaviors, such as avoiding windows and ducking down when cars

passed by the house. After several weeks of being in Brian S.'s care, J. returned to his

normal, happy self.



                                              8
       About two weeks after Brian S. and J. returned to San Diego, Snyder and CPS

worker Lupita Castro interviewed them concerning allegations J. was sexually abused

while in Brian S.'s care. The allegations were subsequently deemed unfounded. During

the interview, J. was very outgoing and happy, and he appeared to have a loving

relationship with Brian S.

       Brian S. testified he never abused J. Acknowledging that J. sometimes got bruises

or scratches while in his care, Brian S. testified he often noticed bruises and scratches on

J. after he was with Rief.

       Melissa Reed, the director of the preschool in Carlsbad that J. attended between

April 2011 and April 2012, testified that during that period of time she never noticed any

signs that J. was being abused and J.'s teacher never reported to her that he was being

physically abused. Reed testified she noticed J. tended to be a little withdrawn, fearful

and not very open to interaction on the days when Rief dropped him off, and he seemed

happier and more interactive and outgoing after he was in Brian S.'s care.

       B. The Defense

       Rief did not testify. The first defense witness was Penelope Nagel, who testified

that she and Rief became close friends in around December 2010. Nagel spent the most

time with Rief between the end of 2011 and the beginning of 2012. During this period,

as J. was spending more time with Brian S., J.'s behavior started changing and he became

"much more hostile" to the point Nagel felt she could not trust him because he was hitting

and scratching her son. These problems continued to worsen up to the time Rief left with

J. in April 2012. Nagel had also noticed suspicious bruising on J. beginning in the

                                              9
summer of 2011. She testified one was large, "very odd," and appeared to be some sort

of puncture wound on J.'s back. Another across his back was "like a stripe." Nagel never

had any reason to suspect that Rief inflicted those injuries.

       Nagel also testified that sometime between August and late October 2011, J.

complained about pain in his "butt." Rief and Nagel looked and noticed redness around

J.'s anus. J. pointed to his buttocks and said "Poppa Pete" had "hurt" him and had put a

screwdriver in his "butt." Nagel testified she did not know who "Poppa Pete" was. At

some point while in Nagel's presence, Rief had made phone calls to agencies that assist in

child custody cases. Nagel accompanied Rief to a meeting with a CPS worker in

February 2012 about the situation, although neither of them raised sexual abuse

allegations. Nagel then began spending less time with Rief and J. She testified she had a

hard time being around them because she felt powerless to help with the situation. Nagel

also testified she was supportive of Rief, but she would not commit perjury for her.

       Marnie Cheney had known Rief for many years and they were friends. Around

the end of 2009, Rief began expressing concerns to her about J.'s well-being, saying he

was sick more often and would come home with bruises on his body after being with

Brian S. Cheney noticed such bruises on J.'s arms and legs on four or five occasions

between then and November 2011. (7RT 582-584, 585:2-4, 593:22-28)! Cheney also

noticed J.'s behavior became more aggressive. Sometime in late 2010 or early 2011,

Cheney was with Rief and Nagel when J. said that someone had put something up his

"butt," and they noticed red marks on his buttocks. Cheney was also aware of times



                                             10
during this period when Brian S. refused to let Rief take J. to the doctor even though J.

was ill.

       Jessica Salazar, a CPS worker, interviewed Brian S. concerning allegations of

physical abuse but determined the allegations were unsubstantiated. Brian S. said he had

disciplined J. by placing him in a five-minute "time-out," grabbing his ear when he

wouldn't listen, and slapping him on the bottom. She checked J.'s body and he did not

have any suspicious marks or bruises. Although he had bruises on his shins, they were

typical for a child of J.'s age.

       C. The People's Rebuttal

       Regina Misch, Rief's best friend, testified that when she saw Rief and J. on three

occasions between the end of 2010 and April 2012, she did not notice any unusual marks,

bruises, or anything else that led her to suspect J. was being abused or neglected. Misch

acknowledged, however, that she made two reports to CPS based on concerns Rief

expressed to her. One of the times Misch contacted CPS was after J. was discovered in

Charlotte and returned to Brian S.

       In November 2012 CPS worker Lupita Castro conducted an investigation into

allegations Brian S. had sexually abused J. prior to March 2012. During her investigation

she separately interviewed Brian S. and J. During J.'s interview, he complained about his

"butt hurting" but it did not appear to be related to sexual abuse. At Castro's

recommendation, Brian S. had J. examined by a doctor. Based on the interviews and a

report from the doctor, Castro found no evidence of sexual abuse and the allegations were

deemed unfounded. CPS had previously received referrals for alleged abuse of J.

                                             11
       Castro also testified that on November 20, 2009, allegations of physical and

emotional abuse were made against Brian S. The case was "evaluated out" because it

was already being investigated by another agency. On May 17, 2011, allegations of

physical abuse and neglect were made against Brian S., which were deemed unfounded.

On December 14, 2011, allegations of neglect were made against both parents, and they

were later deemed unfounded.

       Brian S.'s girlfriend, Denise G., testified she had spent a lot of time around Brian

S. and J. over the years. J. received bruises typical for a child of his age when he was in

both parents care. She had never seen Brian S. abuse J. and had never heard J. complain

about anyone putting something in his bottom.

                                       DISCUSSION

I. CLAIM OF INSTRUCTIONAL ERROR (CALCRIM No. 1251) AND RELATED CLAIM
           THAT SECTION 278.5(a) WAS UNCONSTITUTIONALLY APPLIED

       Rief claims her conviction of malicious child abduction must be reversed because

it is "based upon an unconstitutional application of section 278.5[(a)], which effectively

compelled a finding against [her] on the crucial and sole issue of 'malice,' thereby

relieving the prosecution of its ultimate burden of proof and depriving [her] of any

meaningful opportunity for a defense." In support of this claim, she contends the court's

instruction on this crime under CALCRIM No. 1251 lowered the prosecution's burden of

proof because it effectively compelled a finding of "malice" that was based solely on her

act of taking a child (J.) in violation of a court order (the June 23, 2011 custody order)

"regardless of any justification, excuse, or mitigating circumstances behind her actions."


                                             12
We reject Rief's claims because CALCRIM No. 1251 correctly instructed the jury on the

elements of malicious child abduction and the definition of malice, that instruction did

not lessen the prosecution's burden of proof, and, thus, section 278.5(a) was not

unconstitutionally applied to her.

       A. Applicable Legal Principles

       "The trial court is obligated to instruct the jury on all general principles of law

relevant to the issues raised by the evidence, whether or not the defendant makes a formal

request." (People v. Blair (2005) 36 Cal.4th 686, 744.) "'"The general principles of law

governing the case are those principles closely and openly connected with the facts

before the court, and . . . necessary for the jury's understanding."'" (People v. Breverman

(1998) 19 Cal.4th 142, 154.)

       We generally review de novo a claim of instructional error. (People v. Posey

(2004) 32 Cal.4th 193, 218.) "In assessing a claim of instructional error, we examine the

instructions as a whole. The test we apply is whether there is a reasonable likelihood the

jurors would have understood the instructions in a manner that violated a defendant's

rights." (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1246.)

       B. Analysis

       Rief was convicted of a violation of section 278.5(a), which defines the crime of

malicious child abduction and expressly applies to "[e]very person who takes, entices




                                              13
away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian

of a right to custody."3 (Italics added.)

       The court instructed the jury under CALCRIM No. 1251 on the three elements of

malicious child abduction as follows:

          "The defendant is charged in Count One with depriving someone
          else of the right to custody 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, enticed away, 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." (Italics added.)

       At issue here is the third element, which required the prosecution to prove beyond

a reasonable doubt that "[w]hen the defendant acted, she maliciously deprived a lawful

custodian of his right to custody." (CALCRIM No. 1251.) Rief does not challenge the

correctness of the foregoing statement in CALCRIM No. 1251 of the third element of the

crime of malicious child abduction. Instead, she challenges the definition of the term


3      Section 278.5(a) provides in full: "Every person who 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, 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 pursuant to subdivision (h) of
Section 1170 for 16 months, or two or three years, a fine not exceeding ten thousand
dollars ($10,000), or both that fine and imprisonment." (Italics added.)

                                            14
"maliciously" provided by that instruction. The standard version of CALCRIM No.

1251, which the court gave to the jury in this case, defines the term "maliciously" as

follows:

           "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." (Second italics
           added.)

       Under this definition, the prosecution can establish the malice element of the

crime of malicious child abduction by proving beyond a reasonable doubt that the

defendant "intentionally" did the alleged wrongful act. (CALCRIM No. 1251.)

       Rief's claims are premised on her assertion that the definition of "maliciously" in

CALCRIM No. 1251 is "incomplete." Specifically she contends the court was required

to add language to the definition of the term "maliciously" in CALCRIM No. 1251 to

require the prosecution to prove not only that the defendant intentionally did the alleged

wrongful act, but also that she did so without justification, excuse, or mitigating

circumstances. Thus, Rief asserts, the definition of "maliciously" in CALCRIM No.

1251 is not "[c]orrect and complete . . . unless the intentional doing of the wrongful act

was without justification, excuse, or mitigating circumstances."

       Rief further asserts that as a result of the incomplete definition of "maliciously" in

CALCRIM No. 1251, "the mere act of taking the child in violation of a custody order

will necessarily constitute 'malice' regardless of the existence of any justification, excuse,

or mitigating circumstances that may exist." Thus, she maintains, the prosecution's

burden of proof is "reduced from three elements to two."


                                              15
       Rief's claims and assertions are unavailing. CALCRIM No. 1251 correctly defines

malice by virtually mirroring the language of section 7, subdivision (4), which provides

that "[t]he words 'malice' and 'maliciously' import a wish to vex, annoy, or injure another

person, or an intent to do a wrongful act, established either by proof or presumption of

law." (Italics added.) The California Supreme Court has recognized that the definition of

malice set forth in section 7, subdivision (4), applies to section 278.5(a). (People v.

Neidinger (2006) 40 Cal.4th 67, 79.)

       Contrary to Rief's claim, CALCRIM No. 1251 did not permit the jury to convict

her of count 1 based solely upon her commission of the "wrongful act" of depriving Brian

S. of his right to custody by taking and concealing J. in violation of the custody order.4

As pertinent here, the instruction required the prosecution to prove beyond a reasonable

doubt that Rief acted maliciously when she deprived Brian S. of his right to custody by

intentionally doing the wrongful act charged in count 1. Thus, the prosecution had to

prove not only that Rief committed the charged wrongful act, but also that she did so

intentionally. Because the prosecution was required to prove the element of malice by

proving Rief intentionally violated the custody order, Rief's claim that the definition of

malice in CALCRIM No. 1251 reduced the prosecution's burden of proof "from three

elements to two" is without merit.




4     Count 1 alleged that Rief "did unlawfully and maliciously take, entice away, keep,
withhold and conceal a child, to wit: [J.], and deprive a lawful custodian of a right to
custody and a person of a right to visitation in violation of [section] 278.5(a)."
                                             16
       Rief contends the decision in People v. Diaz (2005) 125 Cal.App.4th 1484

supports her claim that the court's malice instruction under CALCRIM No. 1251 was

flawed because it permitted the jury to find her guilty based solely on the act of taking J.

in violation of a custody order. Her reliance on Diaz is misplaced. In that case the Court

of Appeal found the jury was erroneously instructed that the failure to yield the right of

way for an emergency vehicle could serve as one of three requisite predicate offenses to

establish the "willful or wanton disregard for safety" element of evasion in violation of

Vehicle Code section 2800.2. (Diaz, at pp. 1490-1491.) The Diaz court reasoned it was

impossible to evade a pursuing police vehicle in violation of Vehicle Code section 2800.2

without also failing to yield to it in violation of Vehicle Code section 21806, making it a

lesser included offense and reducing the number of violations the People had to prove

from three to two. (Id. at p. 1491.) Diaz is inapposite because it involved a completely

different statute that required the prosecution to specifically prove three different

predicate offenses to establish an element of the charged offense.

       We reject Rief's contention that CALCRIM No. 1251 "effectively created an

unconstitutionally impermissible" presumption of malice based upon the "undisputed"

facts that she took a child under 18 years of age in violation of a court order. The court's

instructions under CALCRIM No. 1251 did not require the jury to find or presume that

Rief acted with malice in the event the jury found she violated the custody order when

she took J. The instructions did not tell the jury it must presume anything and did not

refer to the custody orders. Although the jury could find from the evidence that taking J.

out of California violated the custody order, and that violating the custody order was a

                                             17
"wrongful act," these findings of fact alone were insufficient to compel a conviction

under the court's instructions. For reasons already discussed, the prosecution was still

required to prove that Rief intentionally did this wrongful act. In other words, she had to

know what she was doing was wrong and purposely did it anyway. Thus, the jury could

have acquitted Rief had it found the prosecution failed to meet its burden of proving

beyond a reasonable doubt that she intentionally violated the custody order. This could

have occurred if, for example, there was insufficient proof she knew about the custody

order or if the custody order was ambiguous as to whether she could take Jonah out of the

state. We conclude the instructions did not create a mandatory presumption requiring the

jury to find Rief acted with malice if it found she violated a custody order by taking J.

       For all of the foregoing reasons, we reject Rief's claims of instructional and

constitutional error.

          II. CLAIM OF INSTRUCTIONAL ERROR (FAILURE TO INSTRUCT
                        ON THE DEFENSE OF NECESSITY)

       Rief also contends the court prejudicially erred by denying her request that the

court instruct the jury on the common law affirmative defense of necessity. Specifically,

she contends the court was required to give a necessity instruction in this case based on

evidence showing that she took J. to Charlotte, North Carolina, because she had a good

faith, objectively reasonable belief she needed to keep him away from Brian S. to protect

J. from "ongoing physical and emotional abuse, neglect, and perhaps even sexual abuse";

and that there was no adequate alternative "that would or could have achieved the

objective of keeping J. away from [Brian S.]." was abusing him. We conclude the court


                                             18
properly refused to give the requested necessity defense instruction because the evidence

was insufficient to support all of the elements of the defense.

       A. Background

       Before trial, the prosecution filed a brief asserting Rief should not be permitted to

present a necessity defense because she "[could] not prove she had no reasonable

alternative to committing the charged offense."

       Rief thereafter filed an in limine motion seeking admission of evidence of her

belief that J. would be "exposed to significant bodily and/or emotional harm" if he were

placed back in Brian S.'s care. She argued such evidence would support her claim of

legal necessity.

       In its opposition to Rief's motion, the prosecution argued Rief should not be

allowed to present a necessity defense and sought to exclude all evidence of alleged

abuse or neglect prior to the issuance of the family court's June 23, 2011 custody order,

as well as opinion testimony that she had a good faith and reasonable belief of possible

harm to J.

       During a hearing on the motions in limine, defense counsel indicated the defense

was seeking an instruction on necessity. The prosecutor argued that because the defense

would not be able to prove that any abuse actually occurred, there was not enough

evidence Rief took the child to prevent a significant and imminent evil. The prosecutor

noted reasonable legal alternatives were available to Rief, such as reporting the abuse to

the police or CPS, or asking for a modification of the custody order or for a restraining

order. The prosecutor indicated that she did not think Rief acted with the requisite good

                                             19
faith and objectively reasonable belief, and that it was arguable Rief created a greater

danger by subjecting J. to emotional harm and instability when she took him away from

his father and was "on the run."

       Defense counsel replied that the prosecutor's arguments for the jury, and Rief

deserved to "put on the defense in her case." In response to inquiries by the court,

defense counsel set forth the evidence she believed would show Rief took the action to

avoid a significant and imminent evil and that Rief exhausted all reasonable alternatives.

Indicating there might be sufficient evidence to allow Rief to present a necessity defense,

the court deferred its ruling.

       At another pretrial hearing, the court questioned whether there was enough

evidence of two elements of the necessity defense (lack of an adequate legal alternative

and the existence of an actual emergency) to support giving CALCRIM No. 3403, the

standard instruction on that defense. The court expressed its opinion it would be hard for

the defense to meet its burden. It continued to defer its ruling.

       At trial, following the prosecution's case in chief and during the defense case,

defense counsel stated she did not know whether Rief would testify, and she indicated

she was unsure whether the defense wanted a necessity defense instruction.

       The next day, the prosecutor indicated she was seeking an instruction on the

statutory "good cause defense" and defense counsel indicated she wanted a necessity

defense instruction. The court initially indicated it would give both instructions.

However, after discussion about the burden of proof required, the court questioned

defense counsel about the evidence that there were no adequate legal alternatives.

                                             20
Defense counsel indicated she would rather not confuse the jury by giving instructions on

the two defenses. The court deferred its ruling until all of the evidence was presented.

       After the last witness testified, the court ruled it was not going to give an

instruction on either the statutory good cause defense or the necessity defense because

there was insufficient evidence to support those instructions.

       B. Applicable Legal Principles

       A trial court has a duty to instruct on a particular defense "'only if it appears that

the defendant is relying on such a defense, or if there is substantial evidence supportive of

such a defense and the defense is not inconsistent with the defendant's theory of the

case.'" (People v. Barton (1995) 12 Cal.4th 186, 195.) "Although a trial court should not

measure the substantiality of the evidence by undertaking to weigh the credibility of the

witnesses, the court need not give the requested instruction where the supporting

evidence is minimal and insubstantial." (People v. Barnett (1998) 17 Cal.4th 1044, 1145,

fn. omitted.)

       A necessity defense is recognized in California. (In re Eichorn (1998) 69

Cal.App.4th 382, 388). However, its scope "is very limited and depends on the lack of a

legal alternative to committing the crime. It excuses criminal conduct [only] 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, italics added, superseded by statute on another point as stated in People v.

Neidinger, supra, 40 Cal.4th at pp. 76-77.)



                                              21
       "To justify an instruction on the defense of necessity, a defendant must present

evidence sufficient to establish that [he] 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] did not substantially contribute to the

emergency." (People v. Kearns (1997) 55 Cal.App.4th 1128, 1135 (Kearns), italics

added.)

       An instruction on the defense of necessity is only required when the defendant

meets her burden of proving there is substantial evidence from which a reasonable jury

could find each element of the defense. (People v. Verlinde (2002) 100 Cal.App.4th

1146, 1165 (Verlinde); Kearns, supra, 55 Cal.App.4th at p. 1135.) Thus, if the evidence

is insufficient with respect to any one of the elements of the necessity defense, the trial

court may properly refuse to instruct the jury on that defense. (Ibid.)

       C. Analysis

       The court did not err in refusing to give the necessity defense instruction requested

by the defense because the evidence was insufficient to permit a reasonable jury to find

that all of the elements of that defense were satisfied. As already discussed, the second

element of the necessity defense requires proof that when the defendant committed the

charged offense, there was "no reasonable legal alternative." (Kearns, supra, 55

Cal.App.4th at p. 1135.) Thus, Rief had the burden of presenting substantial evidence



                                             22
that she had no reasonable legal alternative to violating the custody order by taking J. to

Charlotte without Brian S.'s consent.

       Rief failed to meet her burden. The Attorney General argues that "[i]f [Rief] truly

believed Brian S. was abusing J., and that J. was in imminent danger, she had a number

of legal alternatives available. She could have returned to the family court to seek

emergency sole custody or have the custody order modified, she could have sought a

temporary restraining order, she could have called CPS or the police to make a report of

child abuse, or she could have made a good cause report to the San Diego County District

Attorney's office." There is no substantial evidence from which a reasonable jury could

find that none of these legal alternatives to abducting J. was adequate or reasonable.

Because Rief failed to meet her burden with respect to the second element of the

necessity defense, she has not shown, and cannot demonstrate, that the court erred in

refusing to instruct the jury on the necessity defense. (See Verlinde, supra, 100

Cal.App.4th at p. 1165; Kearns, supra, 55 Cal.App.4th at p. 1135.)

        III. CLAIM THAT THE SECTION 278.7 "GOOD CAUSE" DEFENSE IS
                 UNCONSTITUTIONAL ON ITS FACE AND AS APPLIED

       Rief next contends that section 278.7, which provides a statutory "good cause"

defense to the crime of malicious child abduction (§ 278.5(a)) (the offense of which she

was convicted in this case), is unconstitutional both facially and as applied to her.

       Acknowledging Rief's contention "involves undisputed facts and a pure question

of law," the Attorney General first asserts Rief forfeited this contention "by not raising a




                                             23
constitutional challenge to section 278.7 in the trial court," but then argues her contention

should be rejected if this court chooses to reach its merits.

       We will consider Rief's constitutional challenge to section 278.7 on the merits.

(See People v. Hines (1997) 15 Cal.4th 997, 1061 [appellate courts may consider a

challenge to the constitutionality of a statute on the merits, even if it was not raised in the

trial court, if the challenge involves "'a pure question of law which is presented by

undisputed facts'"].) We conclude section 278.7 is constitutional both facially and as

applied to Rief.

       A. Statutory Scheme (§ 278.7)

       Section 278.7, subdivision (a) (section 278.7(a)), provides:

           "Section 278.5 does not apply to a person with a right to custody of a
           child who, with a good faith and reasonable belief that the child, if
           left with the other person, will suffer immediate bodily injury or
           emotional harm, takes, entices away, keeps, withholds, or conceals
           that child." (Italics added.)

       To be entitled to the section 278.7 "good cause" defense, the defendant must have

complied with certain statutory requirements set forth that section. (See People v.

Mehaisin (2002) 101 Cal.App.4th 958, 965 [trial court properly found that defendant who

failed to comply with section 278.7 reporting requirements was not entitled to the section

278.7 defense].) As pertinent here, section 278.7 provides in subdivision (c):

           "(c) The person who takes, entices away, keeps, withholds, or
           conceals a child shall do all of the following:

           "(1) Within a reasonable time from the taking, enticing away,
           keeping, withholding, or concealing, make a report to the office of
           the district attorney of the county where the child resided before the
           action. The report shall include the name of the person, the current

                                              24
          address and telephone number of the child and the person, and the
          reasons the child was taken, enticed away, kept, withheld, or
          concealed.

          "(2) Within a reasonable time from the taking, enticing away,
          keeping, withholding, or concealing, commence a custody
          proceeding in a court of competent jurisdiction consistent with the
          federal Parental Kidnapping Prevention Act (Section 1738A, Title
          28, United States Code) or the Uniform Child Custody Jurisdiction
          Act (Part 3 (commencing with Section 3400) of Division 8 of the
          Family Code).

          "(3) Inform the district attorney's office of any change of address or
          telephone number of the person and the child." (Italics added.)

       Subdivision (d) of section 278.7 sets forth the relevant time frames for compliance

with the subdivision (c) requirements:

          "For the purposes of this article, 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."

       B. Rief's Facial Challenge to the Constitutional Validity of Section 278.7

       Rief contends section 278.7 is unconstitutional on its face because it "cut[s] off

any meaningful opportunity to defend against the crime of child abduction for the vast

majority of defendants to whom it applies." Specifically, while agreeing there should be

a "good cause defense" for persons who meet what she refers to as the "technical

reporting and custodial proceeding requirements" of section 278.7(a), she contends the

statute is unconstitutional on its face because it "has the effect of unfairly and improperly

cutting off any meaningful opportunity to mount a defense" on the "crucial" issue of

malice "for all defendants who failed to comply with the specific parameters of the

                                             25
reporting and custody proceeding requirements [set forth in subdivisions (c) and (d) of

section 278.7]." We reject this contention.

       The principles that guide our analysis are well-established. "The courts will

presume a statute is constitutional unless its unconstitutionality clearly, positively, and

unmistakably appears; all presumptions and intendments favor its validity." (People v.

Falsetta (1999) 21 Cal.4th 903, 912-913.) "'"The burden of establishing the

unconstitutionality of a statute rests on [the party] who assails it."'" (In re York (1995) 9

Cal.4th 1133, 1152.) Furthermore, when we evaluate a facial challenge to the

constitutional validity of a statute, we consider the text of the statute itself, not its

application to the particular circumstances of an individual. (Tobe v. City of Santa Ana

(1995) 9 Cal.4th 1069, 1084.) A facial challenge to a statute is "the most difficult

challenge to mount successfully, since the challenger must establish that no set of

circumstances exists under which the [statute] would be valid." (United States v. Salerno

(1987) 481 U.S. 739, 745.)

       Section 278.5(a), which defines the crime of malicious child abduction, was

originally enacted "to encourage parents who are unhappy with custody or visitation

provisions under existing conditions to return to the civil court to seek judicial

clarification or modification of the order, and to discourage them from taking the law into

their own hands by concealing the child in a place unknown to the other parent." (People

v. Lortz (1982) 137 Cal.App.3d 363, 368 (Lortz).)

       While there may be some exceptional situations in which a parent must act in

violation of another's judicially sanctioned custody rights in order to protect his or her

                                               26
child from imminent harm, in order to fulfill the underlying purpose of section 278.5(a)

the circumstances under which a parent may act outside the legal system to prevent such

harm must be carefully limited. In enacting section 278.7, the Legislature balanced the

legitimate competing governmental interests in protecting children from harm and

discouraging parents from "taking the law into their own hands by concealing the child in

a place unknown to the other parent." (Lortz, supra, 137 Cal.App.3d at p. 368.)

Specifically, section 278.7 balances these competing interests by allowing parents to take

a child in violation of another's right to custody if they have a "good faith and reasonable

belief" in the need to do so in order to protect their children from "immediate bodily

injury or emotional harm" (§ 278.7(a)), and they provide specified contact information to

authorities and seek a legal change in custody status within a reasonable period of time

(§ 278.7, subds. (c), (d)).

       As noted, Rief contends section 278.7 is unconstitutional on its face because it

prevents defendants who acted out of a good faith and reasonable belief in the need to

protect their children, but failed to meet the requirements of subdivisions (c) and (d) of

that section, from presenting a meaningful defense that they lacked malice. This

contention is unavailing because section 278.7 does not prevent defendants who failed to

comply with its reporting and custody proceeding requirements from presenting a defense

that they did not act maliciously. For example, if the defendant is able to present

evidence he or she acted with the intent to protect the child rather than with the intent to

disturb, defraud, annoy, or injure someone else or with the intent to do a wrongful act, the

defendant may argue the prosecution has not met its burden of proving malice. (See

                                             27
CALCRIM No. 1251.) In an appropriate case, the defendant may present a common law

necessity defense. (See People v. Neidinger, supra, 40 Cal.4th at p. 78.) Thus, section

278.7 does not prevent defendants from presenting a meaningful defense to the crime of

child abduction. On the contrary, it provides them with an additional statutory defense.

We conclude section 278.7 is not unconstitutional on its face.

       C. Rief's As-Applied Challenge to the Constitutional Validity of Section 278.7

       Rief also contends section 278.7 is "unconstitutional as applied here." We reject

this contention.

       The California Supreme Court has explained that an as-applied challenge to the

constitutional validity of a statute "contemplates analysis of the facts of a particular

case . . . to determine the circumstances in which the statute . . . has been applied and to

consider whether in those particular circumstances the application deprived the individual

to whom it was applied of a protected right." (Tobe v. City of Santa Ana, supra, 9 Cal.4th

at p. 1084.)

       Rief asserts that an instruction under section 278.7 "was favorable to the

prosecution, not the defense, for the very reason that . . . an instruction under this

'defense' would have raised the bar for Rief in attempting to challenge the malice element

while having the concomitant effect of lowering the prosecution's burden of proof on this

element." She complains that "[w]hether or not [she] had acted with a 'good faith and

reasonable belief' in the taking [of J.], the prosecution could secure a conviction simply

because she had not complied with the technical reporting and custodial proceeding

requirements." Thus, she asserts, "had the court given the instruction on this 'defense,'

                                              28
Rief would have been left even further hamstrung in her attempts to mount a meaningful

defense on the crucial and sole issue of whether she acted 'maliciously' in the taking of J.

for purposes of the charge under section 278.5[(a)]."

       Rief's contention and assertions are unavailing because section 278.7 was not

"applied" to her at all. She requested through her trial counsel that the jury not be

instructed on the section 278.7 defense, and the court ruled it would not give that

instruction.

       Rief's as-applied challenge to the constitutional validity of section 278.7 is

essentially a claim that the statutory defense provided by that section is unconstitutional

because it did not apply to her due to the undisputed fact she failed to satisfy the

reporting and custody proceeding requirements of subdivisions (c) and (d) of that section.

However, the fact she was unable to avail herself of this defense does not render section

278.7 unconstitutional. As already discussed, the existence of the good cause defense

provided by section 278.7 did not prevent her from presenting a defense that the

prosecution failed to meet its burden of proving beyond a reasonable doubt that she acted

maliciously within the meaning of section 278.5(a). It also did not prevent her from

presenting other defenses such as common law necessity.

       Rief also suggests section 278.7 is unconstitutional because she and other

defendants in her situation could not reasonably have been expected to "be aware of the

need" to comply with the reporting requirements set forth in that section. However, "'[i]t

is an emphatic postulate of both civil and penal law that ignorance of a law is no excuse

for a violation thereof. Of course it is based on fiction, because no [person] can know all

                                             29
the law . . . . The rule rests on public necessity; the welfare of society and the safety of

the state depend upon its enforcement.'" (People v. Snyder (1982) 32 Cal.3d 590, 592-

593.) The Attorney General asserts "there are many steps [Rief] could have taken before

or immediately after the abduction which would have resulted in her finding out about the

requirements of section 278.7. Specifically, [she] could have researched the law on her

own, she could have consulted with an attorney specializing in family or criminal law, or

she could have contacted the courts, the district attorney's office, law enforcement or CPS

and explained the situation." We agree.

       For all of the foregoing reasons, we conclude Rief has failed to show section 278.7

is unconstitutional on its face or as applied.

                          IV. CLAIM OF CUMULATIVE ERROR

       Last, Rief contends the cumulative effect of the foregoing claimed trial errors

violated her fundamental due process right to a fair trial. We reject this contention.

       "'[A] series of trial errors, though independently harmless, may in some

circumstances rise by accretion to the level of reversible and prejudicial error.'" (People

v. Cunningham (2001) 25 Cal.4th 926, 1009.) A defendant is "entitled to a fair trial but

not a perfect one." (Ibid.)

       "If none of the claimed errors were individual errors, they cannot constitute

cumulative errors that somehow affected the . . . verdict." (People v. Beeler (1995) 9

Cal.4th 953, 994, abrogated on other grounds as recognized by People v. Pearson (2013)

56 Cal.4th 393, 462.)



                                                 30
       Here, there were no errors that might rise by accretion to the level of reversible

and prejudicial error.

                                      DISPOSITION

       The judgment is affirmed.



                                                                       NARES, Acting P. J.

WE CONCUR:


McDONALD, J.


AARON, J.




                                             31
