People v. Gerchberg

Opinion

KINGSLEY, J.

Defendant was convicted of a violation of section 278.5 of the Penal Code. He has appealed; we reverse.

On or about May 11, 1976, defendant and Susan were married and living in New York. Susan procured a divorce from defendant, in a New York court, under the terms of which, defendant had visitation rights to the three minor children of the parties. Susan, with the children, moved to California.

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At defendant’s request, contained in a letter to her, Susan caused the children to be sent to defendant in New York, at his expense. They arrived there on July 1, 1976. Sometime between July 1, 1976, and August 26, 1976, defendant formed the intent not to return the children to Susan and so advised her. It is stipulated that defendant did not form that intent until after the children were in New York. Susan did not see the children again until they were recovered in defendant’s custody, in Pennsylvania, on June 20, 1980.

[620]

Based on those facts, defendant was prosecuted under section 278.5 of the Penal Code, which reads as follows:

“(a) Every person who in violation of a custody decree takes, retains after the expiration of a visitation period, or conceals the child from his legal custodian, and every person who has custody of a child pursuant to an order, judgment or decree of any court who has custody of a child pursuant to an order, judgment or decree of any court which grants another person rights to custody or visitation of such child, and who detains or conceals such child with the intent to deprive the other person of such right to custody or visitation shall be punished by imprisonment in the state prison for a period of not more than one year and one day or by imprisonment in a county jail for a period of not more than one year, a fine of not more than one thousand dollars ($1,000), or both.

“(b) A child who has been detained or concealed in violation of subdivision (a) shall be returned to the person having lawful charge of the child. Any expenses incurred in returning the child shall be reimbursed as provided in Section 4605 of the Civil Code. Such costs shall be assessed against any defendant convicted of a violation of this section.”