People v. Hyatt

Decision Date08 July 1971
Docket NumberCr. 4406
Citation96 Cal.Rptr. 156,18 Cal.App.3d 618
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Michael Andrew HYATT, Defendant and Appellant.
OPINION

COUGHLIN, Associate Justice.

Defendant was charged with the offense of child stealing, a violation of Penal Code section 278; was found guilty by a jury's verdict; was granted probation; and appeals.

Defendant and his wife were parties to a divorce action in which, by an order pendente lite, the minor children of the parties, Troy and Deborah, were placed in the custody of the wife, their mother, with a right of visitation by the defendant on Saturday of each week. Defendant admitted having knowledge of this order. At the trial of the case on May 18, 1965, at which all parties were present, the court orally announced its intended decision to place the custody of the children in the mother with the right of visitation by the defendant on the first Sunday of each month. On June 15, 1965 the court entered an interlocutory decree of divorce awarding custody accordingly. Although denied by defendant, the evidence inferentially supports the conclusion he had knowledge of this order prior to July 4, 1965. On the latter date, a Sunday, defendant came to the mother's home and obtained the children in the exercise of his visitation privilege, which extended from 10 a.m. to 5 p.m. of that day. In the afternoon defendant took the children by airplane to Salt Lake City, Utah; thence to Denver, Colorado; and later to Kansas. The mother did not learn of the whereabouts of the children until December, 1967. In the meantime she had attempted to locate them by various means, including the employment of private detectives, and an appearance on a television show in which she begged for their return which produced information resulting in the discovery of their whereabouts. The mother went to Kansas; instituted habeas corpus proceedings; obtained custody of the children; and returned with them to California.

When defendant came for the children on the morning of July 4, 1965 he was driving a rented automobile. He had caused the gas service to his apartment to be terminated on July 2, 1965, and had moved to a motel. While in Colorado and Kansas defendant used the given name of 'Brian' instead of his true name Michael. His daughter Deborah was enrolled in the first grade in school and when defendant and the children moved to Kansas she was about half way through the second grade. Defendant wrote a letter to his brother, the date and place of writing he was unable to recall, in which he said in pertinent part:

'I'm sorry I wasn't able to contact you sooner, but I have been busy establishing a new identity. The kids and I have new birth certificates, and I tried a new line of work since I can't use any references or education background. Debbie just started kindergarten, and as far as anyone is concerned, she is five, and for me, she is willing to pretend.

'* * * If any judge thinks I could give that tramp (his former wife) $50 per week with what she made, and see my children one day a month, he is nuts! 'What I have done may make me a fugitive, but to see how happy the kids are, it's worth it and more. * * *

'* * * I have to be very cautious. If you wish to ever contact me, put an ad in the personal column of the N.Y. Times--begin Attention Mr. Miller. I will probably see it, as I usually get the paper in the morning.'

Defendant testified, in substance, any indication in the letter he was in New York was a fabrication.

Before the divorce trial on June 15, 1965 defendant was interviewed by a deputy probation officer in the course of an investigation ordered by the court as to the custody of the children of the parties. During this interview he told the deputy probation officer if the court did not give him custody of the children he would take matters into his own hands.

'Every person who maliciously, forcibly, or fraudulently takes or entices away any minor child with intent to detain and conceal such child from its parent, guardian, or other person having the lawful charge of such child, is punishable by imprisonment in the state prison * * *.' (Pen.Code § 278.)

The conduct proscribed by Penal Code section 278 applies to the father of a minor child whose custody has been placed with the mother by court order. (People v. McGinnis, 55 Cal.App.2d 931, 132 P.2d 30; see also Wilborn v. Superior Court, 51 Cal.2d 828, 830--831, 337 P.2d 65; Rosefield v. Rosefield, 221 Cal.App.2d 431, 434, 34 Cal.Rptr. 479.) Defendant's contention to the contrary is without merit.

Defendant contends the People 'failed to establish a prima facie case' because 'there was no taking of the children'; the 'intent to detain and conceal' is an intent to detain and conceal in California; and the evidence does not establish 'the taking was with an intent to conceal in California'.

The contention the evidence does not support a finding defendant took the children is premised upon the claim he was entitled to their physical custody in the exercise of his visitation privilege on Sunday, July 4, 1965, between the hours of 10 a.m. and 5 p.m. and, therefore, did not take them within the meaning of the statute. However, the evidence supports the conclusion when defendant took the children on the Sunday in question he used the visitation privilege given him to obtain their physical custody for the purpose of taking them from the custody of their mother in whose charge they had been placed by order of the court, and not for the purpose of visiting with them as permitted by that order. The taking contemplated by the statute is a taking with intent to detain and conceal the child from the person having lawful charge of such child. (Gen. see People v. Bormann, 6 Cal.App.3d 292, 297, 85 Cal.Rptr. 638; People v. Wisecarver, 67 Cal.App.2d 203, 208--209, 153 P.2d 778.) In effect, the defendant, under the pretense of exercising the privilege of visiting with his children pursuant to the court order, obtained their physical custody intended not to return them to the mother as required by the order but to detain and conceal them in defiance of the order. Defendant's conduct was intended to deceive and, as such, was fraudulent. (People v. Wisecarver, Supra, 67 Cal.App.2d 203, 207, 153 P.2d 778.)

Contrary to defendant's contention, proof of a violation of the statute does not require proof the taking of a child was with intent to detain and conceal such child in California. Detention and concealment as such are not elements of the offense. (People v. McGinnis, Supra, 55 Cal.App.2d 931, 935, 132 P.2d 30; People v. Smith, 17 Cal.App.2d 468, 472, 62 P.2d 436; People v. Simmons, 12 Cal.App.2d 329, 332, 55 P.2d 297.) However, proof of detention and concealment support an inference of an intention to detain and conceal. (Ibid.) The fact the detention and concealment occurred in a state other than that in which the child was taken does not foreclose the inference the intention to detain and conceal existed at the time and place of the taking.

Defendant's contention the evidence does not support essential elements of the offense is without merit.

At defendant's request the court gave three instructions on, among other things, the issue of intent. One of these was a general instruction on specific intent; the second defined the offense and stated, in substance, the taking must be with the intent to conceal Or detain the child; and the third instructed the jury to establish the offense it must be proven, among other things, the defendant took the child with a specific intent to detain And conceal such child from the person having the lawful charge of the child. On appeal defendant contends the second instruction was error because the offense is not established by proof of an intention to detain Or to conceal but only upon proof of an intention to detain And conceal. It is settled an essential element of the offense is an intention both to detain and conceal. (People v. Black, 147 Cal. 426, 430, 81 P. 1099.) However, any uncertainty in the instructions was created by the defendant who submitted them. Any error therein was invited by him and, under well established principles, he may not now urge such error as a ground for reversal. (People v. Coogler, 71 Cal.2d 153, 170, 77 Cal.Rptr. 790, 454 P.2d 686; People v. Phillips, 64 Cal.2d 574, 580, fn. 4, 51 Cal.Rptr. 225, 414 P.2d 353.)

Defendant charges the prosecution with misconduct which he urges as a ground for reversal. Our review of the record dictates the conclusion the charge is without foundation. The incidents upon which defendant premises his contention involve questions by or statements of the prosecuting attorney in the course of his cross-examination. In one instance the prosecuting attorney asked a question about which def...

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