People v. Derner

Opinion

McCLOSKY, J.

Defendant, Peter Derner, appeals from a judgment of conviction entered after he pleaded no contest to three counts of child abduction in violation of a custody order. (Pen. Code, § 278.5.)

[590]

Contentions

Defendant contends that his “criminal prosecution was barred by Federal and State Constitutional provisions against double ‘jeopardy.’ [He] argues that the State did not have the right to try appellant in [this case].”

Facts

On November 13, 1981, defendant picked up his four-year-old daughter, Nichole, for his weekend visitation period pursuant to a family law court order which awarded physical custody of the child to defendant’s ex-spouse. Defendant did not return the child to the custody of her mother after his period of visitation expired.

On January 16, 1985, the child was returned to her mother with the assistance of the Missouri law enforcement agencies. Defendant voluntarily returned to California and surrendered.

On March 1, 1985, defendant appeared before the family law court on an order to show cause re contempt

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filed by defendant’s ex-spouse in November 1981 based on his failure to comply with the custody order and return his daughter to her mother.

Defendant waived his constitutional rights and pleaded guilty to contempt. The court adjudged him in contempt and ordered defendant to five days in county jail with credit for two days served and to pay a $1,000 fine. The court then suspended execution of defendant’s sentence for one year on the condition that he was not to violate any law or family law court order during that period. The purpose stated on the minute order for the staying of the execution of sentence and the continuance of the matter for a year was “for the purpose of reviewing compliance with the Court’s order.”

On March 3, 1985, the district attorney filed an information charging defendant with two counts of detaining and concealing a minor child with the intent to deprive another person of her right to custody and visitation in violation of a court order (Pen. Code, § 278.5; counts I, II); and one count of retaining and concealing his minor daughter from his ex-spouse after the expiration of his visitation period in violation of a court order. (Pen. Code, § 278.5; count III.)