People v. Ryan
| Decision Date | 16 December 1999 |
| Docket Number | No. A084321.,A084321. |
| Citation | 76 Cal.App.4th 1304,91 Cal.Rptr.2d 160 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Cleve RYAN III, Defendant and Appellant. |
Appellant was convicted following a jury trial of child abduction (Pen.Code, former § 278), and admitted that he suffered a prior violent or serious felony conviction for purposes of Penal Code section 667, subdivision (e).1 On appeal, he claims that the evidence does not establish his lack of the right of custody of the child as necessary to support the child abduction conviction, and objects to the trial court's failure to give an instruction further defining the "right of custody" as an element of the offense. We find that the conviction is supported by substantial evidence. We further find that instructional error was committed, but no prejudice to appellant resulted. We therefore affirm the judgment.
Appellant and Carolyn Ryan2 were married on January 22, 1980. They remained married until Carolyn filed for divorce on June 29, 1995, but had an unconventional marital relationship. They lived together very infrequently between 1980 and 1991, sharing an apartment for only "about six months or so." Otherwise, Carolyn lived "basically" with her mother in Oakland, and had "no idea" where appellant lived.
Carolyn became pregnant with her son Cleve in September of 1990, and informed appellant of the pregnancy two or three months later. Appellant's response was, "I don't believe it's mine," and he continued to deny paternity for at least a year thereafter. Around November of 1990, appellant left the Oakland area, and moved to Washington, although Carolyn did not know either his address or telephone number there. During her pregnancy, Carolyn saw appellant "maybe three times."
Cleve was born on July 3, 1991. Carolyn gave differing approximations on appellant's first contact with the child: according to her preliminary examination testimony, appellant did not see Cleve for "a good year and a half, two years"; at trial, she changed the age of the child to "five or six months old" when appellant first visited with him.3 Carolyn estimated that when Cleve was "[m]aybe a year" old, appellant finally admitted he was the father. Between the child's birth and June 20, 1995, appellant visited him approximately three times.
Carolyn testified that she was the "sole custodial parent" of Cleve. She and her mother Sadie Smith provided essentially all of the financial support for the child. Most of the time, they lived at the home of Smith on 43d Street in Oakland. Smith was "very close" to Cleve, having "helped raise him from the day he was born." Appellant did not make regular or even periodic support payments to Carolyn; nor did he furnish a home for his son. On "one Christmas," appellant sent Carolyn a "big box" of clothes and other "things" for Cleve. Carolyn claimed at trial that she did not request support payments from appellant. Rather, when she needed "things" for Cleve she "would tell" appellant, and he occasionally sent money or items to her. At the preliminary examination, Carolyn testified that appellant refused her requests for support. Nevertheless, while appellant and Carolyn were no longer romantically involved by 1995, they were neither hostile with each other nor had disagreements about the nature of appellant's relationship with his son.
On June 20, 1995, appellant flew from Washington to Oakland. Carolyn testified at trial that while she and appellant had previously discussed "him taking [Cleve] back to Washington with him," no specific date to do so had ever been set by them. When appellant arrived in Oakland on June 20th, however, Carolyn knew his purpose was to return to Washington with the child. In fact, he showed her two tickets for a return flight to Washington the next day. At the preliminary examination she testified, in contrast, that she never gave appellant permission to take Cleve to Washington, and did not discuss the matter with him that day. She made the same statement earlier to Dolores Rutzen, an intern with the district attorney's office.
Appellant arrived at Smith's house with his sister Lisa Ryan around 5:00 in the evening on June 20. He asked Carolyn for permission to take Cleve to Chuck E. Cheese in Hayward or San Leandro for "an hour or two," and Carolyn agreed. Carolyn testified that she did not give appellant her consent to take Cleve to Washington with him. Cleve did not have a change of clothes, toys, or any other of his belongings with him when he left with appellant that evening. By 7:00 or 8:00 p.m., appellant called Carolyn from his nephew's house to report that Cleve had gone to McDonald's with one of appellant's sisters. He assured Carolyn that "everything was fine," and promised to call her or return with Cleve to Smith's house in about an hour.
Carolyn called appellant back in an hour and asked to speak with Cleve. Appellant told her Cleve was still "not back yet." By 10:00 or 11:00 p.m., Carolyn and her mother went to the home of appellant's nephew in Berkeley looking for Cleve. Appellant was there, but reported to Carolyn that Cleve was still "with his sister" at her house. Smith became "excited," and advised appellant that she "wanted to see the baby." Smith then left in the car while Carolyn stayed with appellant at his nephew's house.
Smith returned 30 minutes later with Carolyn's brother and sister. Appellant said "the baby is all right," but when he refused to tell them where Cleve was, Smith became "hysterical." She called the police despite Carolyn's plea that "we don't need no police." They then drove to the home of appellant's sister, Rene Williams, in El Cerrito at about midnight. When they arrived, the police were there, but Cleve was not. They returned to Smith's house in Oakland around 1:00 a.m. Carolyn was not worried or upset; she told Smith, "don't worry Mom, the baby is going to be all right."
The next morning between 7:00 and 8:00, Smith, Carolyn, and her brother and sister went to the Oakland Airport to search for Cleve. Appellant had informed Carolyn that he had tickets for a 9:00 a.m. return flight to Seattle that day. They looked around the airport for about an hour, but did not find Cleve or appellant, whereupon they returned to Smith's house.
From her house, Smith called the Oakland Police Department to report that Cleve had possibly "been taken away" by appellant. Carolyn remained calm. She advised the responding officer when he arrived that she knew the child was in Washington with appellant. After speaking with Carolyn, the officer determined that "a crime had not been committed," and filed no report of the incident.
Carolyn next heard from appellant two days later, when he called her from his home in Bremerton, Washington. Appellant told Carolyn that Cleve was with him. Carolyn spoke with Cleve, who, she testified at trial, sounded normal to her. Appellant denied Carolyn's request for his telephone number and address for fear that Carolyn or her mother would "send the police." Instead, appellant suggested an arrangement whereby Carolyn would call his sister Lisa, who in turn would contact him with a message to call Carolyn back. Carolyn followed this procedure for a few days, but protested that she wanted appellant's telephone number so she "could call and talk to Cleve" directly. Carolyn threatened to report the matter to the police unless she was given appellant's telephone number, but appellant warned her, "I'll run with him, or you'll never see him again or something."4 Appellant then provided Carolyn with his telephone number.
On June 23, 1995, Officer George Bonilla of the Oakland Police Department responded to a report from Smith that Cleve had been abducted by appellant. Smith was "still sick" that Cleve had not been returned. Officer Bonilla discussed the matter with Carolyn, who was not upset and stated that "the child was not taken," and was "okay." Smith reported to the officer that Carolyn was uncooperative because of her fear of appellant. Officer Bonilla told Smith that he "would try to find" Cleve.
On June 26, 1995, Officer Edwin Bermudez spoke with Carolyn, who indicated that "she wanted to press charges" against appellant. She appeared at Bermudez's office the next day with Smith to furnish him with photographs of Cleve. Carolyn reported that appellant "refused to tell her where he was living," and "threatened that if she went to the police that he would disappear with the child and that she would never ever see the kid again."
On June 29, Carolyn and Smith appeared at the district attorney's office to report to intern Dolores Rutzen that "their baby [had been] stolen." According to Rutzen's testimony, Carolyn stated that she had given permission for appellant to take Cleve to Chuck E. Cheese for only "a couple of hours," not to take him to Washington. Carolyn, who seemed quite upset to Rutzen, expressed concern about her child's health and welfare. She also told Rutzen that Cleve was crying, hungry and "said he wanted to go home" when she spoke by telephone with him at appellant's residence in Washington. Appellant threatened to hurt Carolyn or the child if she contacted the police. Rutzen assisted Carolyn in commencing an action against appellant for divorce and custody of the child.
Later that day, Officer Bermudez met with Carolyn and Smith at the district attorney's office to proceed with the investigation and efforts to locate the child. Officer...
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