People v. Jo, C079280

• Citation: 224 Cal.Rptr.3d 82,15 Cal.App.5th 1128
• Decision Date: 03 October 2017
• Docket Number: C079280
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. NAN HUI JO, Defendant and Appellant.

15 Cal.App.5th 1128

224 Cal.Rptr.3d 82

The PEOPLE, Plaintiff and Respondent,

v.NAN HUI JO, Defendant and Appellant.

C079280

Court of Appeal, Third District, California.

Filed October 3, 2017

Riordan & Horgan, Dennis P. Riordan, Donald M. Horgan, San Francisco, and Matthew Dirkes, Retained Counsel for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.

RENNER, J.

Following a jury trial, defendant Nan Hui Jo was convicted of child custody deprivation ( Pen. Code, § 278.5, subd. (a) ) and sentenced to 175 days in county jail and thirty-six months probation.¹ On appeal, defendant contends: (1) the trial court improperly instructed the jury on the union of act and criminal intent, (2) the trial court improperly instructed the jury on section 278.7, which provides an affirmative defense to child custody deprivation, over defendant's objection, (3) the trial court failed to properly respond to the jury's questions regarding the relationship between sections 278.5 and 278.7, (4) the trial court improperly refused to give a pinpoint instruction explaining that section 278.7 represents one of many possible defenses to child custody deprivation under section 278.5, (5) the trial court improperly allowed a former prosecutor to testify as to section 278.7's requirements, (6) the prosecutor committed misconduct by misstating the applicable law, (7) the trial court failed to force an election or require unanimity in response to one of the jury's questions, (8) the trial court improperly dismissed one of the jurors during deliberations, and (9) the evidence was insufficient to support the conclusion that defendant acted with malice. We conclude that defendant's first and second arguments have merit, but the errors were harmless. We reject defendant's remaining claims of error. Accordingly, we will affirm the judgment.

I. BACKGROUND

Defendant, a citizen of Korea, came to the United States on a student visa in 2002. She studied film and worked in Los Angeles for several years, then married and moved briefly to the east coast. In July 2007, defendant, now estranged from her husband, moved to Sacramento to enroll in photography classes at Sacramento City College. There, she met J.C., a veteran of the Iraq war who suffered from post-traumatic stress disorder

(PTSD) as a result of his military service.

A. Defendant's Relationship with J.C.

Defendant and J.C. became friends, and eventually began dating. J.C. moved into defendant's trailer shortly thereafter. In late 2007, defendant discovered she was pregnant. Defendant, then thirty-five years old, was overjoyed at the news. J.C. was decidedly less enthusiastic. At twenty-four years old, J.C. felt he was not ready to become a father.

As the pregnancy progressed, the couple fought with increasing frequency. These arguments culminated in the first of a series of breakups in the spring of 2008. Following a brief reconciliation, the couple broke up a second time in June 2008. While pregnant, defendant asked the County of Sacramento Department of Child Support Services to obtain an order requiring J.C. to pay child support. Defendant also traveled to South Korea to see her family, returning to the United States on a one year visa in July 2008.

B. Defendant Gives Birth to V. and Resumes Her Relationship with J.C.

On September 7, 2008, defendant gave birth to a daughter, V. J.C. initially denied paternity, but subsequently took a paternity test which confirmed that he was V.'s father. J.C. began paying child support in December 2008. J.C. met V. for the first time in February 2009, when he ran into defendant on the campus of Sacramento City College.

In the weeks that followed, J.C. spent more and more time with defendant and V. Eventually, J.C. resumed his romantic relationship with defendant and moved into her house. J.C. continued to pay child support, and also contributed to rent and groceries. Within a month or so, the couple began to argue again.

C. Defendant's Immigration Problems Intensify, and the Relationship Deteriorates Further

Defendant's one-year visa was due to expire in July 2009. In July 2009, defendant received a letter from immigration authorities indicating that her application to extend her stay had been denied. Defendant telephoned immigration authorities and learned that she was required to leave the country immediately.

Around the same time, defendant proposed marriage to J.C. J.C. thought the proposal was "absurd," especially in light of the fact that defendant was still married to someone else. When J.C. declined, defendant became very angry. She accused J.C. of not loving her, and explained that her visa was expiring and she would not be allowed to remain in the United States. The couple argued about where to raise V., with defendant wanting to return to South Korea and J.C. wanting to remain in the United States. During one such argument, in August 2009, J.C. punched a wall with such force that he broke his hand.

The couple had another heated argument on the eve of V.'s first birthday, in September 2009. During the course of the argument, which took place in defendant's parked minivan, J.C. punched the steering wheel, thereby reinjuring his hand. J.C. then got out of the minivan and walked away. After stopping at several bars, he flagged down a police officer. J.C. asked the police officer to take him to a VA hospital "because [he] was having a mental breakdown." Instead, the police officer took J.C. to jail. Defendant picked J.C. up the next day, and the couple celebrated V.'s birthday with family and friends.

The couple had an especially bad fight—their first and only physical altercation—on October 18, 2009. Following an angry exchange over some now forgotten bone of contention, J.C. announced that he intended to leave the house. Defendant responded that she, not J.C., would leave. She "tossed" V., then thirteen months old, to J.C. from a distance of arm's length or "[j]ust a little bit further." The child's head struck J.C. in the face. V. began to cry, and J.C., enraged, chased defendant down, grabbed her by the throat, and pushed her up against the wall, lifting her feet off of the ground and choking her. After a moment, J.C. released defendant. Police officers were summoned, but J.C. was not arrested. J.C. went to stay with a friend. He understood that he had crossed a line with defendant, and their relationship would never be the same. Although J.C. continued to visit V., the romantic relationship with defendant was over.

By late October 2009, defendant had decided to leave Sacramento and return to South Korea. On October 24, 2009, defendant sent an email to J.C.'s father and his wife, Jenny, who lived in the Los Angeles area. Defendant wrote that she would be arriving in Los Angeles on November 2, 2009, with plans to stay for a couple of weeks before continuing on to Florida for the winter, and then returning to South Korea in March. Defendant wrote: "Before go to Florida I want to visit. I want to visit you, and I have to do couple of things in LA. And, also, I have to wait [J.C.]'s agreement paper by court for leaving with baby. It's going to take a time for two to three weeks." (Errors in original.)

Defendant emailed Jenny and J.C.'s father again on October 26, 2009. In her email, defendant wrote: "It seems getting worse with [J.C.] He said he just want baby grow up around him, neither with me or not. [¶] What's that mean? He knows I don't have status to stay in this country. [J.C.] keep just say that he wants to go to court to see the judge. [J.C.'s stepfather] paid for lawyer. [¶] I'm scare to loose my baby. If judge just care about [J.C.] has right to see baby, it's going to be a problem for me. I'm leaving [J.C.] because he's not good for my baby now." (Errors in original.)

J.C. was aware that defendant intended to leave Sacramento. On October 30, 2009, in anticipation of defendant's departure, J.C. filed a petition with the Sacramento Superior Court seeking regular visitation with V. In connection with the petition, J.C. submitted a declaration stating, in part, "While I don't want to take my baby away from the mother, I insist on being actively involved in her raising and daily life." A hearing on the petition was scheduled for November 2, 2009.

Later that day, J.C. went to defendant's house. Defendant was packing and preparing to leave. J.C. would later testify that he told defendant about the upcoming hearing date; defendant, for her part, denied that J.C. said anything about a hearing. According to defendant, J.C. was furious because she had withdrawn money from the estranged couple's joint bank account. Defendant ran to the backyard with V. and called 911. Police came, but no arrests were made. Shortly thereafter, defendant moved out of the house she once shared with J.C.

D. Defendant Leaves Sacramento

Defendant left Sacramento and drove to Los Angeles with V., arriving there on November 2, 2009. Defendant did not appear for the hearing on J.C.'s petition for visitation, which was continued to December 21, 2009. Upon arriving in Los Angeles, defendant and V. stayed at the home of J.C.'s father and Jenny for two days. They then spent several days at the home of another friend in Los Angeles, before leaving for South Korea on November 8, 2009. While in Los Angeles, defendant consulted with an attorney.

Upon arriving in South Korea, defendant and V. lived with defendant's mother. Eventually, defendant and V. moved to Jeju Island, a province of South Korea, where V. attended elementary school. Defendant lived openly in South Korea and made no effort to hide or conceal her identity.

E. J.C. Attempts to Communicate with Defendant

In the meantime, J.C. remained in the Sacramento area and attempted to reach defendant by phone and email. For more...